JUDGMENT 1. - Both these appeals relate to one incident occurred on March 18, 1988 therefore we propose to decide them by a common judgment. D.B. Cr. Appeal No. 401/1997 stem from the judgment dated August 13, 1997 rendered in Sessions Case No. 30/1988 by the learned Additional Sessions Judge Deeg (Distt. Bharatpur) sentencing 17 appellants as under : ISLAM : U/s. 302 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 6 months R.I. RUJDAR, ILIAS, MUVIN AND MANNA : U/s 323 IPC 6 months S.I. each with fine of Rs. 200/- and in default of payment of fine each will have further to undergo 15 days Si. ASRU, GUNCHERI, MOHAMMADA, KALTO ROSHAN AND TITTA : U/s. 148 IPC 6 months S.I. each with fine of Rs. 200/- and in default of payment of fine each will have further to undergo 15 days SI. U/s. 336/149 IPC 3 months S.I. each with fine of Rs. 50/- and in default of payment of fine each will have further to undergo 7 days SI. HURMAT, SUMER, MOJU, DEENU, JUMMA AND ISHAB : U/s 148, 336/149 IPC But have been granted benefit under Section 4 of the Probation of Offenders Act. All the sentences were ordered to run concurrently. 2. The short facts leading to the conviction in Appeal No. 401/87 need narration. Rehmat PW. 5 submitted written report Ex.P 4 with the Police Station Sikri of March 18, 1988 stating therein that when the meeting of his caste Panchayat was in progress not exchanges took place between Rujdar and Sawai. On hearing the altercation when his brother Jenu (now deceased) proceeded from his house, Islam, Ilias, Muveen, Rujdar and Manna encircled Jenu. Islam was armed with farsa whereas others were having lathies. Islam inflicted farsa blows on the head of Jenu and others started beating him indiscriminately. Intervenors who made attempt to rescue Jenu, also sustained injuries. Thereafter Hurmat, Sumer Khan, Deenu, Asru, Gunchari, Mohammada, Jumma, Dariyav Singh, Kalta, Moju, Roshan, Kamal Khan, Titta and Ishav came over there and started pelting stones and inflicted lathi blows. Jenu was taken to the hospital at Sikri where doctor declared him dead. 3. A case under Sections 302, 323, 336, 147, 148 and 149 IPC was registered by the Police Station Sikri against the accused and investigation commenced. Jenu was taken to the hospital at Sikri where doctor declared him dead. 3. A case under Sections 302, 323, 336, 147, 148 and 149 IPC was registered by the Police Station Sikri against the accused and investigation commenced. Panchnama of the body of the deceased was drawn. Site was inspected. Autopsy on the dead body was conducted. Statements under section 161 Cr.P.C. were recorded. The appellants were arrested and at the instance of Islam farsa was recovered and sealed. On conclusion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Deeg. Charges under Sections 148, 302, in the alternative 302/149, 323 and in the alternative 323/149, 324 in the alternative 324/149 IPC were framed. The appellants denied the charges and claimed to be tried. The prosecution examined as many as 19 witnesses. Thereafter the explanation of the accused appellant under section 313 Cr.PC. was recorded. The accused denied the allegations and claimed innocence. One witness in defence was examined. On hearing the final submissions the learned Additional Sessions Judge convicted and sentenced the appellants as indicated hereinabove. 4. It is well settled that while assessing and evaluating the testimony of eye witnesses the court must adhere to two principles namely whether in the circumstances of the case it was possible for the eye witnesses to be present that the scene and whether there is anything inherently improbable or unreliable. Credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence in the context of the case. 5. Bearing in mind the above well settled principles we will now examine the evidence adduced by the prosecution. 6. Informant Rehmat PW. 5 in his examination in chief deposed that Islam inflicted three farsa blows on the head of Jenu whereas other accused caused injuries by lathies. When they proceeded to remove Jenu from the place of occurrence Hurmat, Sumer Khan, Deenu, Asru, Gunchari, Mohamada, Jumma, Dariyav Singh, Kalta, Moju, Roshan, Kamal Khan, Titta and Ishav started pelting stones. Jenu was first taken by them to the Hospital and thereafter FIR Ex.P/4 was lodged. In his cross examination Rehmat however deposed that nobody in the Panchayat was armed with any weapon. Jenu was first taken by them to the Hospital and thereafter FIR Ex.P/4 was lodged. In his cross examination Rehmat however deposed that nobody in the Panchayat was armed with any weapon. He further stated that accused inflicted lathi blows on the head of Jenu. He admitted that relations of accused and, Jenu were cardial and there was no enmity between them. Jenu neither came to the Panchayat nor anybody called him. 7. Israil PW. 6 in his deposition stated that Islam inflicted on farsa blow initially and thereafter he gave two blows with farsa on his head. In his cress examination he stated that while sitting in Panchayat Islam was not having farsa. But he had seen Islam carrying farsa from his house. The fact that Islam took farsa from his house was however not written in his police statement Ex.D. 2. He stated that four accused also inflicted lathi blows on the head of Jenu. 8. Dr. Ashok Kumar Gupta PW. 3 conducted the autopsy on the dead body of Jenu. He found following three antimortem injuries on his head : 1. One incised wound 7 cm. X 1 cm. X bone deep on left frontal region of head. 2. One incised wound 6.5 cm. X 1 cm. X bone deep on At. frontal region of head. 3. On incised wound 8cm. X 1 cm. X bone deep on Rt. parietal region of head. Cause of death of Jenu according to Dr. Ashok Kumar Gupta was head injury leading to compression of Brain and Coma 9. Mr. Biri Singh, learned counsel appearing for the accused appellants canvassed that the Incident had taken place all of a sudden without any premeditation and charge under section 302 IPC was not established against Islam. From the statement of prosecution witnesses it is evident that there was no enmity between the accused and the deceased Jenu. Jenu was not even present in the Panchayat where hot discussion was taking place. Therefore there was no reason to inflict injuries on the person of Jenu. The genesis of the occurrence appears to be withheld by the prosecution. Informant Rehmat and other witnesses made improvements in their statements in order to corroborate the medical evidence. Jenu was not even present in the Panchayat where hot discussion was taking place. Therefore there was no reason to inflict injuries on the person of Jenu. The genesis of the occurrence appears to be withheld by the prosecution. Informant Rehmat and other witnesses made improvements in their statements in order to corroborate the medical evidence. Initially they came with the case that only one farsa blow was inflicted by Islam but during the course of trial they changed this version and deposed that three farsa blows were caused on the head of the deceased by Islam. This ocular testimony needs close scrutiny. 10. Per contra Mr. Madhav Mitra, learned Public Prosecutor and Mr. N.A. Naqvi, learned counsel for the complainant supported the conviction 4 and contended that Islam had intention to kill as he repeatedly inflicted farsa blows on the head of Jenu. 11. Fact situation noticed by us on closely scanning the material on record, is as under : (i) Deceased Jenu was not present in the Panchayat and he had no 4 knowledge about the quarrel ensued in the meeting. (ii) Islam was not having any weapon while sitting in Panchayat. (iii) As per the version narrated in the FIR only one injury on the head of Jenu was attributed to Islam. (iv) There was no enmity between Islam and Jenu prior to the s incident and they had cordial relations. (v) The occurrence had taken place all of sudden. (vi) As per ocular evidence Jenu received lathi blows on his head and those blows were attributed to other co-accused persons. 12. It is thus established that the incident had occurred all of sudden and there was no ill will between the appellant Islam and the deceased Jenu. Their relations were cordial. According to initial prosecution story only one sharp blow with farsa was attributed to appellant Islam but that story was subsequently improved during trial and three farsa blows were attributed to Islam. We find ourselves unable to accept this improved prosecution version. In our opinion only one blow was caused by Islam.which laid on the head of Jenu and that proved fatal. The injury inflicted by Islam was not premediated and Islam did not take undue advantage or acted in a cruel manner. We find ourselves unable to accept this improved prosecution version. In our opinion only one blow was caused by Islam.which laid on the head of Jenu and that proved fatal. The injury inflicted by Islam was not premediated and Islam did not take undue advantage or acted in a cruel manner. The case of the appellant Islam is thus covered by Explanation-IV appended to section 300 IPC and the appellant Islam could only be held guilty under section 304 Part II IPC. 13. So far as the role assigned to the appellants Asru, Guncheri, Mohammada, Kalto, Roshan and Titta, Hurmat, Sumer, Moju, Deenu, Jumma and Ishab is concerned we are of the view that they did not share common object to commit crime and they could not have been convicted under Sections 148 and 149 IPC. Appellants Rujdar, Iiias, Muvi) and Manna were rightly convicted under section 323 iPC as they were liable for their individual acts. 14. Consequently we allow the appeal of accused appellant Islam in part. While modifying the impugned judgment dated August 13, 1997 of the learned Addl. Sessions Judge Deeg in Sessions Case No. 30/1988, we convict the accused appellant Islam under section 304 Part II IPC instead of Section 302 IPC, The appellant Isiam has already undergone detention for more than 6 years. In our opinion sentence already undergone by him and a fine of Rs. 30,000/- (Rupees Thirty thousand) shall meet the ends of justice. In default of payment of fine appellant Islam shall have to further suffer two years R.I. Fine if deposited, shall be paid to the legal representatives of deceased Jenu. On depositing the fine with the Deputy Registrar (Judicial) the appellant Islam shall be set at liberty forthwith if not required in any other case. 15. While confirming the conviction of appellants Rujdar, Ilias, Muvin, and Manna under section 323 IPC, we modify the sentence awarded to them. Instead of sending them to Jail we enhance the fine impose on them by the learned trial judge. We direct appellants Rujdar, Ilias, Muvin, and Manna each to deposit fine in the sum of Rs. 1000/- (Rupees one thousand) with the Deputy Registrar (Judicial) within one month from today. If fine is not deposited each shall have to suffer simple imprisonment for one month. 16. We direct appellants Rujdar, Ilias, Muvin, and Manna each to deposit fine in the sum of Rs. 1000/- (Rupees one thousand) with the Deputy Registrar (Judicial) within one month from today. If fine is not deposited each shall have to suffer simple imprisonment for one month. 16. The appeal of accused appellants Asru, Guncheri, Mohammada, Kalto, Roshan and Katta stands allowed and they are acquitted form the charges under Sections 148 and 336/149 IPC. They are on bail. Their bail bonds stand discharged. 17. Appeal No. 401/1997 stands disposed.APPEAL NO. 380/1997: 18. In S.B.Cr. Appeal No. 380/1997, 10 appellants Sabu @ Sube Khan, Najir, Ibrahim, Israyal, Issar @ Ishav, Samru, Rahmat, Joma, Dull and Samsu all were convicted under sections 323 and 336 IPC to undergo six months imprisonment and a fine of Rs. 200/-. (In default to further undergo 15 days imprisonment) to suffer three months imprisonment and fine of Rs. 50/- (in default to further undergo 7 days imprisonment) respectively vide judgment date August 13, 1997 in Sessions Case No. 56 of 1989 by the learned Additional Sessions Judge, Deeg. 19. The written report was submitted by informant Gurmalli on. March 19, 1988 with the Police Station Sikri with the averments that on March 18, 1988 around 9.00 a.m. the members of accused party gathered at one place to raise fund for mosque. At the time of meeting some hot words were exchanged between the members of accused party and complainant. Thereafter the complainant and his relatives left the meeting and rushed to their house. When they were on the way, the accused named in the FIR surrounded them. The accused gave beating to Saleem, Roshan and Majid, who were brought to Hospital at Sikri. A criminal case was registered bearing FIR No. 23/88 and investigation commenced. On conclusion of the investigation, charge sheet was filed. The case was committed to the court of Addl. Sessions Judge Deeg. Charge under sections 147,148, 323/149, 324/149, 326 and 326/149 IPC were framed against the accused. The accused denied the charge and claimed trial. The prosecution examined as many as 9 witnesses in support of its case. 20. Mr. N.A. Naqvi, learned counsel appearing for the appellants canvassed that there are several infirmities and contradictions in the statements of the witnesses and therefore no reliance can be placed on their testimony. The accused denied the charge and claimed trial. The prosecution examined as many as 9 witnesses in support of its case. 20. Mr. N.A. Naqvi, learned counsel appearing for the appellants canvassed that there are several infirmities and contradictions in the statements of the witnesses and therefore no reliance can be placed on their testimony. The complainant party was aggressor and in such circumstances even if the accused have caused injuries, it was in exercise of their right of private defence. 21. Per contra, the learned Public Prosecutor supported the conviction. 22. A look at the material on record goes to show that the prosecution could not establish the injuries sustained by the injured person. Medical report was not exhibited. Even FIR was lodged after a delay of one day evidently to create defence. 23. We have closely scrutinised the testimony of the prosecution witnesses Gurmalli PW. 1, Lodan PW. 2, Roshan PW. 3, Najir PW. 4, Islam PW. 5, Rujdar RW.6, Manna PW. 7 and Jai Singh PW. 9 We do not find their statements trustworthy. On absence of medical evidence no reliance can be placed on their testimony. 24. Consequently, we allow the criminal appeal No. 380/1997 and acquit all the appellants from the charges under sections 323 and 336 IPC. All the appellants are on bail. They need not surrender. Their bail bonds stand dismissed.Appeals disposed of as per head Note 'A'. *******