JUDGMENT 1. - The 18 accused appellants were found guilty in Sessions Case No. 8/1988 by the learned Addl. Sessions Judge, No. 1, Alwar, vide its judgment dated August 9, 1994 for having committed murder of Man Singh and causing injuries to other injured persons and they were convicted and sentenced as under- Name of the accused. Offence under Ss. Punishment awarded To suffer imprisonment for life and a fine Rs. 200/- In default further to suffer six months r.i. 1. Khubram 302 Indian Penal Code 2. Brijendra. 325/149 IPC 3 years r.i. and a fine of Rs. 200/- each. In default six months r.i. 323/149 3 months r.i. 447 IPC to suffer one month s.i. 148 IPC to suffer six 3. Rameshwar, 302/149 Indian Penal Code L.I. and a fine of Rs. 200/- each In default six months r.i. 4. Hariram 5. Kailash 6. Smt. Kishanpyari, 7. Deepchand, 8. Mooiya, 9. Harnarayan, 10. Hardayal 11. Kothari, 447 Indian Penal Code One month s.i. each. 12. Maktulram, 13. Smt. Ramdei, 14. Ramsingh, 15. Shrinarain, 16. Mukhram 17. Smt. Govindi 325/149 Indian Penal Code 3 years r.i. and a fine of Rs. 200/- each In default six months r.i. 323/149 Indian Penal Code 3 months r.i. 147 Indian Penal Code 3 months r.i. 18. Ramswaroop. 302/149 L.I. and fine of Rs. 200/- In default six months r.i. 447 Indian Penal Code One months s.i. 325 Indian Penal Code 3 years r.i. and a fine of Rs. 200/- In default six months r.i. 323/149 Indian Penal Code 3 months r.i. 147 Indian Penal Code 3 months r.i. All these substantive sentences were directed to run concurrently. 2. Against this judgment of conviction that the action for filing the instant appeal has been resorted to by the accused. 3. During the pendency of appeal, appellant Brijendra died and therefore, the appeal preferred by him stands abated and the proceedings against him are dropped. 4. The prosecution story is woven like this.On November 11, 1987 a written report came to be lodged by the complainant Nemi Chand (PW6) at Police Station Malakhera, Distt. Alwar against twenty persons including the appellants, charge-sheet was not filed against Ram Avtar named in the FIR and Mst. Khemli being juvenile was tried by the Juvenile Court. 4. The prosecution story is woven like this.On November 11, 1987 a written report came to be lodged by the complainant Nemi Chand (PW6) at Police Station Malakhera, Distt. Alwar against twenty persons including the appellants, charge-sheet was not filed against Ram Avtar named in the FIR and Mst. Khemli being juvenile was tried by the Juvenile Court. It was inter- alia stated in the report that the assailents formed an unlawful assembly, entered into the filed and made attack on the Complainant party with Pharsis, lathis and jailiyas. Accused Khubram and Brijendra were armed with pharsis and they inflicted pharsi blows on the head of Man Singh whereas the other accused who were armed with Lathis and Jailiyas, inflicted injuries to Hariram, Kokali and Misro. Man Singh, succumbed to the injuries sustained by him. Proximate cause of the incident as per the report was, cutting the water cause by the Complainant party through which the water for irrigating lands was flowing. The Police Station, Malakhera, registered the first information report bearing No. 149/1987 for offences under Sections 302 and 307 IPC and investigation commenced. Autopsy on the body of deceased Man Singh was conducted vide post-mortem report (Ex.R8). Site Plan (Ex.R12) was drawn and the statements of witnesses under Section 161 Cr.RC. were recorded. The injured persons were examined vide Exhibits R 4, P5, R6 and R7. The accused were arrested and on completion of the investigation, charge- sheet was filed. In due course the case came up for trial before the learned Addl. Sessions Judge No.1 Alwar. In charges for offences under Sections 147, 148, 302, 302/149, 323, 325 and 447 IPC were framed. The accused denied the charges and Claimed trial. The prosecution examined as many as 18 witnesses in support of its case. The accused in their explanation under Section 313 Cr.RC. Claimed innocence and some of them took a plea of alibi. Fifteen witnesses in defence were examined. After heating final arguments, the learned trial Judge, convicted and sentenced the accused as indicated hereinabove. 5. Mr. Bajwa, the learned counsel appearing for the accused canvassed that the prosecution has totally failed to bring out the genesis of the occurrence and in the absence of exact genesis of occurrence, it is highly improbable of the accused to have constituted an unlawful assembly. 5. Mr. Bajwa, the learned counsel appearing for the accused canvassed that the prosecution has totally failed to bring out the genesis of the occurrence and in the absence of exact genesis of occurrence, it is highly improbable of the accused to have constituted an unlawful assembly. The so called proximate cause in the form of cutting/damaging the water course through which water for irrigating lands of Complainant party was flowing was not established on the basis of the record. From the site plan as also from the testimony of Gauri Shankar (RW16) it is clear that major portion of the water course had been demolished long back. There were no fresh marks of demolishing that long portion of water course. There were no signs of water having recently flown in the water course. Thus, the prosecution has completely failed to establish the proximate cause of the incident. In the absence of strong motive the*chances of constitution of unlawful assembly were highly remote and the prosecution could not prove the charges for offences under Sections 147 and 149 Indian Penal Code Criticising the testimony of alleged eye witnesses Misro (PW1) Smt. Kokli (PW2) Hari Ram (PW3) and Nemichand (PW6) learned counsel contended that these witnesses have freely indulged in making the material improvements, their statements were recorded at a belated stage and none of these witnesses can be termed as a reliable witnesses. It is further urged that from the testimony of the injured eye witnesses Hari Ram was the target and Man Singh was only an intervenor and he sustained injuries while making attempt to intervene. Therefore, invoking of liability with the aid of Section 149 IPC is uncalled for. Reliance has been placed on Gurmail Singh and ors. v. State of Punjab ( AIR 1982 SC 1466 ) Ramlal v. Delhi Administration ( AIR 1972 SC 2462 ), Sevi and another v. State of Tamil Nadu and another ( AIR 1981 S.C. 1230 ), Kalinder Bharik v. State of HP ( AIR 2000 SC 3618 ), Camilo Viz v. State of Goa ( AIR 2000 SC 1374 ) and Mohd. Iqbal M. Shaikh and ors. v. State of Maharashtra ( AIR 1998 SC 2864 ). 6. Per contra, Mr. Iqbal M. Shaikh and ors. v. State of Maharashtra ( AIR 1998 SC 2864 ). 6. Per contra, Mr. S.C. Purohit, learned P.R appearing for the State supported the impugned judgment of learned trial Judge and contended that the testimony of injured eye witnesses is wholly reliable and the learned trial Judge has rightly convicted and sentenced the accused appellants. 7. We have pondered over the rival submissions and carefully scanned and scrutinised the material on record. 8. In her deposition Mst. Misro PW1, stated that as soon as the accused came to their field, Khub Ram instigated other accused to kill Hari Ram and the accused made assault on him. When she and Nemichand intervened they sustained injuries. Thereafter, Man Singh intervened and Khub Ram inflicted Pharsi blow on his head whereas another pharsi, blow again on his head was inflicted by Brijendra, Ram Swaroop also inflicted lathi blow on the head of Man Singh. 9. Mst. Kokali (PW2) also deposed that accused Khub Ram instigated other accused to kill Hari Ram and when Man Singh intervened, Khub Ram inflicted a pharsi blow. Ramswaroop gave a lathi blow on his forehead and Kothari, inflicted lathi blow on his left temporal region. 10. Hari Ram (PW3) in his deposition stated that Khubram and other accused came in the field with the intention to kill him but when Man Singh intervened, Khubram, Brijendra, Ramswaroop and Kothari, inflicted injuries on his person. 11. Gauri Shankar I.O. (PW16) deposed that the water course had been demolished long back and there were no fresh mark of demolishing the long portion of water course. 12. The fact situation that emerges from the material on record may be summarised thus- (i) The proximate cause of the incident that water course was demolished by the Complainant party could not be established. (ii) The accused did not arrive at the scene of occurrence with the intention to kill Man Singh. (iii) Deceased Man Singh appeared on the scene after the accused persons assaulted Hariram Nemichand and Kokli, and. (iv) The accused persons had no animosity against Man Singh. 13. Their Lordships of the Hon'ble Supreme Court in Gurmail Singh v. State of Punjab (supra), had occasion to deal with a case where the deceased was nowhere in the picture and there was no animosity against him. (iv) The accused persons had no animosity against Man Singh. 13. Their Lordships of the Hon'ble Supreme Court in Gurmail Singh v. State of Punjab (supra), had occasion to deal with a case where the deceased was nowhere in the picture and there was no animosity against him. There could not have been even a passing thought of causing any injury to the deceased. Deceased appeared on the scene after the accused persons assaulted other persons. The deceased when attempted to intervene to save other persons from further harm, a blow with a "Barchha" was given by the accused which landed on the deceased. There was nothing to indicate in the evidence that the accused ever intended to cause any injury to the deceased assuming transmission of malice in inferable. Their Lordships held that the accused found guilty under Section 304 Part II Indian Penal Code 14. In the instant case as already stated the accused persons made assault on Hari Ram, Misro, Nemichand and Kokali and when Man Singh intervened to save Hariram, Misro, Nemichand and Kokali from further harm, he sustained injuries with the hands of accused appellants Khubram, Bijendra, Ramswaroop and Kothari. 15. After taking into consideration the sequence of events narrated by the aforequoted eye witnesses it is to be seen whether the accused persons can be made liable for having committed murder of Man Singh with the aid of Section 149 Indian Penal Code We do not find any material on record to suggest that accused persons were the members of the unlawful assembly and they shared the common object to cause the murder of Man Singh. The accused has no enmity with Man Singh. Man Singh suddenly appeared on the scene and received injuries. The evidence of the all witnesses of the prosecution is of a partisan nature and it bristles in most parts with unnaturalness and emblishment, it could not be established that the accused had formed unlawful assembly with the object to kill Man Singh. Therefore, it would not be safe to convict the accused under Section 302/149 IPC Charge under Section 147 IPC also could not be established by the prosecution against the accused persons. 16. As noticed earlier the injuries sustained on the head by the deceased Man Singh have been attributed to four accused persons viz. Therefore, it would not be safe to convict the accused under Section 302/149 IPC Charge under Section 147 IPC also could not be established by the prosecution against the accused persons. 16. As noticed earlier the injuries sustained on the head by the deceased Man Singh have been attributed to four accused persons viz. Khubram, Brijendra, Ramswaroop and Kothari and from the medical testimony, it could not be established as to which injury was proved to be fatal. Decease Man Singh did not sustain any fracture on his head and there was no injury on the brain as well. It does not borne out from the medical evidence that there was any nexus between the external injuries and the death of Man Singh. Only one injury is attributed to accused Khub Ram and in the facts circumstances of the case, it may be said that the act of the accused Khub Ram does not travel beyond Section 304 Part II Indian Penal Code We convert the conviction of accused Khub Ram from Section 302 IPC to Section 304 Part II Indian Penal Code Khubram has been in the confinement for more than seven years and in our opinion, ends of justice would be met in sentencing him to the period already undergone by him. We also find accused khubram guilty under Section 447 IPC and confirmed his conviction under this Section. 17. We, however, confirm the conviction of accused Ramswaroop for offence under Sections 325 and 447 IPC but acquit him from the charges under Sections 147, 323/149 and 302/149 Indian Penal Code Ramswaroop is on bail and in out opinion, no purpose will be served to send him to the person again. In the facts and circumstances of the case, we are inclined to release him on probation. 18. We grant benefit of doubt and acquit Rameshwar, Hariram, Kailash, Kishanpyari, Deepchand, Moolya, Harnarayan, Hardayal, Kothari, Makhtool Ramdei, Ram Singh, Shrinarayan, Mukhramand, Govindi from the charges under Sections 302/149, 325/149, 447, 147 and 323/149 Indian Penal Code. 19. In the result, the appeal stands disposed of as indicated herein above. The accused appellant Khub Ram is in custody, he shall be released forthwith if not required in any other case.So far as accused appellant Ram Swaroop is concerned, he was in custody for more than two months and is on bail. 19. In the result, the appeal stands disposed of as indicated herein above. The accused appellant Khub Ram is in custody, he shall be released forthwith if not required in any other case.So far as accused appellant Ram Swaroop is concerned, he was in custody for more than two months and is on bail. In our considered opinion, the ends of justice would meet in granting him probation under Section 4 of the Probation of Offenders Act. We, therefore, direct that the accused appellant Ram Swaroop shall not commit any offence for a period of one year and shall maintain peace and be of good behaviour. He shall be released on probation; provided he furnishes a personal bond in the sum of Rs. thirty thousand together with two sureties in the sum of Rs.fifteen thousand each to the satisfaction of the trial court concerned i.e. Addl. Sessions Judge, No. 1, Alwar. One month time is allowed to accused appellant Ram Swaroop to furnish the said bonds. So far other accused appellants except accused Khub Ram, are concerned, they are on bail and they need not surrender. Their bail bonds stand discharged.Appeal disposed of as indicated above . *******