Per J. P. Singh, J. 1. Judgment dated 03.02.2000 and Order dated 04.02.2000 of learned Additional Sessions Judge, Ramban, (hereinafter referred as Trial Court), has been questioned in Criminal Appeal No. 02/2000 by the accused and in Criminal Acquittal Appeal No. 26/2000, by State of J&K. 2. Whereas, the accused seek their acquittal under Sections 304 Part- II, 307, 342 and 149 R.P.C., the State seeks their conviction under Section 302 R.P.C., besides other offences they committed, which resulted in death of Krishan Lal and severe injuries to Isher Singh. 3. We have heard Sh. O. P. Thakur, learned counsel appearing in support of the appeal and Sh. S. C. Gupta, learned Additional Advocate General, appearing for the State. We will first examine the prosecution case. PROSECUTION CASE: - 4. A written report was lodged by one Vishwa Nath S/o Shiv Saran, Caste Thakkar R/o Chakwa, Batote, on 20.05.1993. It was alleged in the report that one Amar Nath S/o Roda, Caste Gaddi, and his sons nursed an old enmity with the complainant and his sons in respect of a dispute over a piece of land. Dispute is pending in different Courts. One of such case is pending adjudication before Deputy Commissioner, Doda. Amar Nath and others want to forcibly occupy the land in possession of Krishan Lal. It was at about 5.30 p.m., that Amar Nath S/o Roda, Sansar Chand, Hukum Chand, Pritam Singh and sons of Amar Nath and Shankru, son-in-law of Amarnath and Mst. Satya, wife of Sansar Chand, R/o Chakwa, Batote, forcibly entered the land of Krishan Lal and started ploughing it. On this, Krishan Lal told them not to do that, when the afore-mentioned persons, started quarreling. Sansar Chand, armed with an iron rod and other with clubs attacked the complainants son who received grievous injuries. On raising of hue and cry, the complainants another son Isher Singh came on spot and tried to retrieve Krishan Lal from the clutches of the accused, when all the afore-mentioned persons attacked him also with iron rod and clubs, whereafter all the accused dragged the two sons of the complainant to their house. The complainant after some time went to their house where Sansar Chand and his brothers declared that today, they have done them to death. In the meanwhile, complainants other sons Subash Chand, Son-in-law Shamsher Singh reached there. The complainant after some time went to their house where Sansar Chand and his brothers declared that today, they have done them to death. In the meanwhile, complainants other sons Subash Chand, Son-in-law Shamsher Singh reached there. All of them raised alarm which was heard by Safroo S/o Rupa, who also came running on spot. In the meanwhile, from inside room of Amarnath, Isher Singh, son of the complainant, cried on the top of his voice that father they have beaten Krishan Lal with clubs and lathies, and thereafter they have strangulated him to death and that he too had been beaten. 5. This report was registered as FIR No. 52/1993, under Sections 302, 307, 148, 342/34 of the Ranbir Penal Code, in Police Station, Batote. SHO along with his Constables reached the house of Amarnath, where they found Isher Singh in an injured condition tied with a wooden pillar inside the room of the accused, Krishan Lal was found dead as he had succumbed to the injuries received by him. Isher Singh was shifted to Hospital with the help of labourers, who had been putting up at a distance from the place of occurrence, whereas dead body of Krishan Lal was shifted from the house of the accused on the second day. 6. Magistrate, seized of the Police challan, committed the case for trial to the Trial Court, who framed charge against the accused under Sections 302, 447, 148, 149, 342 R.P.C. The accused pleaded NOT GUILTY to the charge and claimed to be tried. The prosecution examined seventeen out of twenty witnesses. These are Isher Singh, Subash Chander, Shanker Singh, Safru, Khazan Singh, Jagdish Chand, Munshi Ram, Sukhdev Singh, Mohd Hussain, Saif Din, Rafiq Ahmed, Pritam Singh, Mir Chand Patwari, Brij Lal Bhagat Medical Officer, Dr.Dinesh Khajuria Radiologist, Dr.Narinder Singh Radiologist, Tanveer Ahmed Sub-Inspector, the then SHO Police Station Batote, the Investigating Police Officer. The accused were examined under Section 342 of the Code of Criminal Procedure. All the circumstances, appearing in the evidence against them were put to them. 7. The accused, in answer to the questions put to them under Section 342 Cr.P.C., replied as follows:- "The arm of Amarnath had been injured by the complainant party and a report to this effect had been lodged by Amarnath in the Police Station. Accused except Amarnath were not there on spot, only children were there. 7. The accused, in answer to the questions put to them under Section 342 Cr.P.C., replied as follows:- "The arm of Amarnath had been injured by the complainant party and a report to this effect had been lodged by Amarnath in the Police Station. Accused except Amarnath were not there on spot, only children were there. The neighbourers had come on spot along with labourers who had been employed in the construction of electric tower. They created trouble on spot. The accused did not know as to how Isher Singh got injuries and how had Krishan Lal died. They came to know only in the next morning that Isher Singh had been brought in an injured condition by the Police and dead body of the accused remained there." 8. Learned trial Court, convicted all the accused under Sections 304 Part II, 307, 342, 149 of the Ranbir Penal Code. Appellants- Sansar Chand, Hukum Chand, Pritam Singh, sons of Amarnath and Shankroo, S/o Bagtu, were sentenced to 10 years rigorous imprisonment and a fine of Rs. 1,000/- (Rupees one thousand) under Section 304 Part II R.P.C., 10 years rigorous imprisonment and a fine of Rs. 1,000/- (Rupees one thousand) under Section 307 R.P.C., and two years rigorous imprisonment and a fine of Rs. 500/- (Rupees five hundred) under Section 342 R.P.C. Accused, Amarnath, was sentenced to imprisonment for the period with effect from 22.5.1997, the period already undergone by him before he was admitted to bail. He was additionally sentenced to pay a fine of Rs. 1,000/- (Rupees one thousand) under Section 304, Rs. 1,000/- (Rupees one thousand) under Section 307 R.P.C and Rs. 500/- (Rupees five hundred) under Section 342 R.P.C. Smt. Shanti W/o Sansar Chand and Satya W/o Hukum Chand, were sentenced to imprisonment for the period already undergone by them in addition to a fine of Rs. 1,000/- (Rupees one thousand) under Section 304 Part II, Rs. 1,000/- (Rupees one thousand) under Section 307 R.P.C and Rs. 500/- (Rupees five hundred) under Section 342 R.P.C. 9. Learned trial Court has given the resume of the witnesses produced by the prosecution and the defence. We shall refer to this evidence while dealing with the submissions of the learned counsel for the parties, wherever the need so arises. 1,000/- (Rupees one thousand) under Section 307 R.P.C and Rs. 500/- (Rupees five hundred) under Section 342 R.P.C. 9. Learned trial Court has given the resume of the witnesses produced by the prosecution and the defence. We shall refer to this evidence while dealing with the submissions of the learned counsel for the parties, wherever the need so arises. It has been urged by learned counsel for the appellants, accused, that the entire prosecution story is un-natural, unbelievable and based on concoction and fabrication. The prosecution has suppressed the genesis of the occurrence, argues the learned counsel for the appellants, accused. While elaborating his submissions the counsel submits that the prosecution has failed to prove that the accused had formed an unlawful assembly and that they were not liable to be convicted with the aid of Section 149 R. P. C. Learned counsel submits that the prosecution story is false and investigation tainted. FIR too has been dubbed as ante dated and ante timed. 10. In reply Sh. S. C. Gupta, learned Additional Advocate General, supported the judgment of the trial Court in so far as, it holds the accused guilty of causing death of Krishan Lal and injuries to PW- Isher Singh. He has further supported the conviction of the accused under Sections 307, 342 and 149 R.P.C. Learned Additional Advocate General submits that the prosecution has succeeded in proving its case and that all the accused have been proved to have committed offences punishable under Sections 302, 307, 342, 148 & 149 R.P.C. He submits that acquittal appeal be accepted and accused punished under law. He questions the finding of conviction and sentence under Section 304 Part-II as erroneous and highly disproportionate. 11. We have considered these submissions of learned counsel for the parties. We would examine these submissions with reference to the evidence produced by the parties, during the trial of the case. 12. The plea of learned counsel for the appellants that the prosecution has suppressed the genesis of occurrence, in fact, covers majority of the submissions raised by Sh. Thakur during the course of the hearing of these appeals. 13. We would first deal with the submission of learned counsel for the appellants as to whether or not F.I.R., has been ante dated and ante timed. Thakur during the course of the hearing of these appeals. 13. We would first deal with the submission of learned counsel for the appellants as to whether or not F.I.R., has been ante dated and ante timed. This would take care of yet another plea of the learned counsel that police had reached house of Amar Nath, accused, on his complaint in connection with the investigation of his report being report no.20. 14. We find, from the records of the Trial Court, that report under Section 173 of the Code of Criminal Procedure accompanied report No.20, lodged by Amar Nath, accused. This report reads as follows:- "Amarnath R/o Chakwan, who is in injured condition, reports that today at about 5.00 p.m, he along with Krishan Lal S/o Vishwanath and their sons Sansar Chand, Hukum Chand and Pritam Singh, had scuffle in connection with their disputed land. He tried to intervene and he does not know as to whose lathi (stick), struck him on his head. He had come to report so that necessary proceedings be taken in the matter. The injuries were noted in the report and the injured was referred to the Hospital." This report further reads that: - "In connection with the dispute, an FIR under Sections 302, 307, 148, 342/34 R.P.C, has already been registered in the Police Station as FIR No. 52/1993." 15. We further find, from the records of the Trial Court, that all the accused in their statements, recorded under Section 342 of the Code of Criminal Procedure, have in answer to the question as to whether they wanted to say anything in addition to what they had replied in answer to the questions put to them by the learned Trial Court, stated as follows: We quote the statement of one of the accused namely Sansar Chand: "Jab Amar Nath ko mustgees party ne baajuon tore diya wo aur muzar police station Batote report dene aye they aur report darz hui, ghar par baki mulzman na they sirf bal-bache they to mustgees party ne ghar par hamla kiya jis vajah se wahan hamsaya logo ka hajoom aya tha aur uske saath bijli tower banane ke mazdoor bhi they, unhonay hi wahan fasadam kiya tha. Muzhar ko pata na hay ke Ishwer Singh ko kaise zarab lagen they aur Krishan Lal kaise faut hua tha. Muzhar ko pata na hay ke Ishwer Singh ko kaise zarab lagen they aur Krishan Lal kaise faut hua tha. Ila subah pata laga tha ke Ishwer Singh ko mazroobi halat mein police layee hai aur naash Krishan Lal wahan padi thee, iskay baad police ne humko girftaar kiya." Rest of the accused have also stated on the similar lines. 16. In view of the admission of all the accused that Amar Nath accompanied by Sansar Chand had lodged a written report with SHO, Police Station, Batote, on 20.05.1993, and that police had removed the injured Isher Singh and allowed the dead body of Krishan Lal to remain in the house of Amar Nath in the night intervening 20th/21st May, 1993, there is no scope for us to take the view that the F.I.R. was either ante timed or ante dated. Occurrence having been admitted by the accused to have taken place on 20.05.1993 and that too, at 5 p.m., leaves no manner of doubt that F.I.R. No.52/1993 was recorded on 20.05.1993 and at the time shown as such in the F.I.R. Plea of Sh. Thakur that F.I.R., is ante dated and ante timed, is, thus, without any merit. 17. The next plea of learned counsel for the appellants that there is delay in filing the F.I.R. and that Special Report contemplated by Section 157 Cr.P.C., has not reached the concerned Magistrate immediately after the registration of F.I.R., be now examined. 18. Learned counsel for appellants submits that the F.I.R., because of the language employed therein, appears to have been drafted by a person specialized in the field and in that view of the matter, it would have taken more time to the complainant to have found such person and got the report drafted, are the factors according to the learned counsel, which unmistakably point out that the date and time of registration of F.I.R., is incorrect. Learned counsel further submits that receipt of the Special Report by the concerned Magistrate on 22.05.1993, too, shows that the prosecution has suppressed the genesis of the occurrence and F.I.R., has been manipulated so as to introduce a version, which was invented much later than the time and date mentioned in the F.I.R. 19. We have examined this aspect of the case too. We have examined this aspect of the case too. Though we notice a days delay in receipt of Special Report by the concerned Magistrate, yet, this aspect of the matter has not been addressed by the accused during the cross-examination of the Investigating Police Officer. Neither any question has been put to the witness in this regard nor has any explanation sought as to why a days delay has been caused in receipt of this Special Report by the concerned Magistrate. 20. Delay in receipt of Special Report contemplated by Section 157 of the Code of Criminal Procedure, may be taken note of only if the accused does his part of the duty in a criminal trial to elicit reasons from the Investigating Police Officer. Unless such a course is adopted by an accused during the trial of a case, the plea of delay in receipt of Special Report by the concerned Magistrate, may not be appropriately taken by the Appellate Court. There may be number of reasons for the delayed receipt of Special Report by the Magistrate. Unless explored at the instance of the accused, the non-receipt of Special Report, cannot be treated to be a circumstance against the prosecution. Seeking of explanation by an accused is, thus, sine-qua-non for projecting such a plea particularly at the appellate stage. We, thus, find that plea raised by the counsel for the appellant is not available to him because of the above-mentioned lapse of the accused. 21. At this stage, it becomes necessary to say that it is not the receipt of report by the Magistrate, which may be relevant under Section 157 of the Code of Criminal Procedure, but on the other hand, it is the dispatch of Special Report, which is contemplated by Section 157 of the Code. For facility of reference, Section 157 is reproduced hereunder: "157. For facility of reference, Section 157 is reproduced hereunder: "157. Procedure where cognizable offence suspected (1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Government may, be general or special order, prescribe in this behalf to proceed the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Provided as follows: Where local investigation dispensed with.- (a) When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of police station need not proceed in person or depute a subordinate officers to make an investigation on the spot; Where Police officer-in-charge sees no sufficient ground for investigation.- (b) If it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer-in-charge of the police station shall state in his said report his reason for not fully complying with the requirements of that sub-section and, in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Government, the fact that he will not investigate the case or cause it to be investigated." 22. Expression shall forthwith send a report of the same to a Magistrate does not contemplate receipt of report by the Magistrate. The act, which is contemplated to be mandatorily complied with by the officer recording the F.I.R., is the dispatch of report by him to the concerned Magistrate. There is no material on records and nor anything has been elicited in this direction from where it could be inferred that dispatch of the Special Report to the Magistrate was not made on 20th or 21st of May, 1993. There is no material on records and nor anything has been elicited in this direction from where it could be inferred that dispatch of the Special Report to the Magistrate was not made on 20th or 21st of May, 1993. Section 114 of the Evidence Act, presumes the regularity of all official actions. We, thus, do not have any material to accept the plea of learned counsel for the appellants. 23. The admission of the accused that they had lodged report on 20.05.1993, disclosing broader details of the incident between the parties, though keeping back the information as to how the accused had received injuries, by itself, is sufficient to reject all the pleas raised by the learned counsel for the appellants that the F.I.R., has not been recorded or sent to the concerned Magistrate on the date and time shown as such in the official records. The genesis of the occurrence cannot, thus, be faulted on the above pleas projected by the learned counsel for the appellant. 24. Appellants counsel argued that the accused were not arrested immediately after the registration of F.I.R., and were arrested only on 22.05.1993, which would prove that the F.I.R., had not been given its present shape, on the date it was recorded. We have examined this submission. 25. In the light of explanation given by Tanvir Ahmed, Investigating Police Officer, the person who recorded F.I.R., that he was busy in arranging police party to take the injured to the hospital during the night and the accused barring Amar Nath were not available at their house, explains sufficiently as to why the accused were not arrested on the day of occurrence. The Investigating Police Officer further testified that immediately after recording Report No. 20 of Amar Nath, accused, he too was shifted to the hospital and a memo of injury form in respect of accused too was filled up when the accused was sent to the hospital. 26. The plea raised by learned counsel for the appellant is, thus, untenable in view of sufficient explanation given by the Investigating Police Officer. Arrest of accused on 22.05.1993, however, settles all such pleas which are raised by learned counsel for the appellants because arrest after a day of the alleged occurrence cannot by any stretch of reasoning, be termed as fatal to the prosecution. 27. Arrest of accused on 22.05.1993, however, settles all such pleas which are raised by learned counsel for the appellants because arrest after a day of the alleged occurrence cannot by any stretch of reasoning, be termed as fatal to the prosecution. 27. Learned counsel then urged that the time of death of the deceased has not been correctly recorded in the F.I.R. He tried to justify his submission on the statement of PW- Dr. B. L. Bhagat, who had opined that the death of Krishan Singh might have taken place in less than 16 hours when the post mortem examination was conducted. 28. This submission has been raised by learned counsel on the strength of time noted in the post mortem report as 2.30 p.m. on 21.05.1993. Learned counsel submits that the doctor had noticed semi-digested food in the stomach of the deceased which was indicative of the fact that prior to his death, the deceased might have taken food three hours earlier. 29. We have considered this submission of learned counsel for appellant. This submission of learned counsel needs to be noticed only for rejection because the evidence of a doctor is only opinionative and would not, otherwise, affect the oral evidence. Even otherwise, we do not find Dr. B. L. Bhagat to be an expert on Forensic Medicine. He appears to have, on the basis of guess work, stated that the death of the deceased could have taken place somewhere less than 16 hours and in this way the deceased could have died on 20.05.1993 around mid-night or night hours. 30. We are not satisfied with this opinion of the doctor for variety of reasons. It cannot be said with exactitude, even on the basis of scientific data, which does not appear to have been collected in the present case as to when exactly, the person whose autopsy had been conducted might have died. Digestion or otherwise of the food material in the stomach too cannot give any indication as to the exact time of death, for it, depends on various factors including the constitution of a person, his capacity to digest and as to whether or not he was suffering from indigestion or other disease, accelerating or reducing the normal period of digestion. Digestion or otherwise of the food material in the stomach too cannot give any indication as to the exact time of death, for it, depends on various factors including the constitution of a person, his capacity to digest and as to whether or not he was suffering from indigestion or other disease, accelerating or reducing the normal period of digestion. The climate of the area and the quality of the food material too affects the determination of the time taken by an individual in digesting the food material. The doctor in the present case has not gone into any data or material required to opine that the death had taken place in the mid night or night hours. 31. This apart, what we find from the post mortem report of the doctor is that he has specifically mentioned possible time between the death and the conducting of post mortem as between 4 hours to 24 hours. In view of this opinion of the doctor, having been recorded by him in the post mortem report marked as EXPW-M14/B admitted in evidence on 09.09.1994, we are not inclined to accept the submission of learned counsel for appellants that the occurrence has not taken place in the manner suggested by the prosecution. 32. The factum of death of Krishan Lal, deceased, on 20.05.1993, is admitted by all the prosecution witnesses as also by the Investigating Police Officer and constables accompanying him, who had found the dead body in the house of accused, Amar Nath, tied to a pillar with a rope. Not only this, even the defence witnesses namely Hukum Chand, Amru, Paras Ram and Nand Lal, have admitted about the quarrel between Amar Nath and the complainant party. 33. DW- Ram Lal, Work Supervisor, PWD, too has admitted about the accused having told him that a scuffle has taken place between accused and Isher Singh and Krishan Lal, and that Krishan Lal had died. 34. In view of the overwhelming evidence of the parties, admitting the death of Krishan Lal, deceased, and causing of injuries to PW- Isher Singh, it may not be necessary for us to detain ourselves any more on the pleas raised by learned counsel for appellants. Pleas raised by learned counsel for appellants are, thus, rejected. 35. 34. In view of the overwhelming evidence of the parties, admitting the death of Krishan Lal, deceased, and causing of injuries to PW- Isher Singh, it may not be necessary for us to detain ourselves any more on the pleas raised by learned counsel for appellants. Pleas raised by learned counsel for appellants are, thus, rejected. 35. Faced with the situation, that even the defence evidence had admitted the occurrence having taken place on 20.05.1993, Krishan Lal having died on the night of 20th May, 1993, injured Isher Singh having been admitted in the hospital alongwith accused Amar Nath, learned counsel for appellants sought to support his appeal on the plea that the story of dragging as projected by the prosecution is concocted and not supported by medical evidence. 36. In order to examine this plea of learned counsel for appellants, statement of Dr. B. L. Bhagat needs to be examined. In examination in chief conducted by learned APP the witness deposed that: "On 20.05.1993, I was posted at Accident Hospital Batote as Surgeon Incharge and Medical Officer. One person Isher Singh was brought in hospital by SHO Batote at 3.25 a.m., on 21.05.1993 with history of assault by some neighbour on some piece of land. I examined the injured and find following injuries on his person: 1. Swelling of left fore arm with multiple abrasions and scraches over the extensor and flexor of the fore arm. 2. A lacerated wound over the the patellar region of left knee joint. The wound is bone deep measuring 1 = x = fresh bleeding present. 3. Multiple scraches and abrasion over the dorsin of both feet. 4. Abrasion over the inter scapular region 3 x 1/ 5. A scrach mark over the right upper chest region measuring three inches and other scrach mark over the left upper chest region measuring 2 =. 6. Suspected fracture of left patulla with haemorthosis. This injury will be confirmed by radiological and orthopidical opinion. For this injury the patient is to be referred to some other hospital where facilities of radiologist and orthopedic specialist are available. Duration of injury 4 hours to 12 hours. In my opinion injury no.1 to 5 are simple in nature and are caused by blunt objects. The opinion regarding injury no.6 was kept reserved till the reports from radiologist and orthopedic specialist is received. Duration of injury 4 hours to 12 hours. In my opinion injury no.1 to 5 are simple in nature and are caused by blunt objects. The opinion regarding injury no.6 was kept reserved till the reports from radiologist and orthopedic specialist is received. The patient was referred to S.M.G.S. Hospital Jammu as such facilities are not available in this hospital. The injured had the following mark of identification. A black mole over the rt. clavicular region. The certificate was issued on the same day. The certificate on file bears my signatures and is in my handwriting. It is correct. It is marked as EXPW-M14. On 6th of July 1993 I issued certificate regarding injury no.6 after perusing and reviewing the reports of radiologist and opined that injury no.6 is grevious in nature and caused by blunt object. This certificate is also in my handwriting and bears my signature. The certificate is on the reverse of EXPW-M14. It is marked as EXPW-M14/A. the injured was referred to S.M.G.S. Hospital on 23.05.1993. On the basis of mark of identification I can recognize the injured. I also conducted autopsy of one deceased body on 21.05.1993 at 3 p.m. The dead body was brought at 2.30 p.m. on 21.05.1993 by SHO Batote. The dead body was identified by one Vishwa Nath the father of the deceased as that of Krishan Lal. The deceased looked about 43 years of age. On external examination the following was observed: 1. The height was 163 cm. Rigor mortis present. An old healed scar over right cheek. Eyes closed. There were no signs of decomposition. The deceased had following external injuries: 1. Swelling and lateral angular deformity of the right thiegh at the junction upper 1/3rd and lower 2/3rd of the same leg. The girth of the right leg at the site of swelling of deformity is 24 and of the left leg at the same level is 20. 2. A vertical lacerated wound on the lateral aspect of the right thigh situated 2 below the right greator trochantor measuring 1 x 3 bone deep. Fluid blood is trickling out of the wound. 3. A compound intra trochantric fracture of right femur with haemotroma and clot formation around the fractured ends of the femur. 2. A vertical lacerated wound on the lateral aspect of the right thigh situated 2 below the right greator trochantor measuring 1 x 3 bone deep. Fluid blood is trickling out of the wound. 3. A compound intra trochantric fracture of right femur with haemotroma and clot formation around the fractured ends of the femur. On opening the right thigh at the sight of lacerated vertical wound of femur it was found the femur is fractured through and through between two trachantics the line of fracture was oblique. There was accumulation of blood between bone and thiegh muscles around the fractured ends of the bone. Some of the accumulated blood has transferred into clot and some is left as fluid blood by the chemical changes. The amount accumulated blood is about one litre. 4. A bruise over the lateral aspect of right thigh 2 below the right greator trochanter measuring 4 x 2 =. 5. A bruise over the lower lamber region measuring 3 x 2. 6. Multiple abrasions and scraches over the whole back and buttocks. I have opened all parts of the body of deceased and on examination found no internal injury except the injuries which I have already stated. The injuries were ante mortem and could not be self inflicted. The clothes of the deceased were intact and not torn but were blood stained in the right thiegh region." 37. Submission of learned counsel for appellants is not supported by the medical evidence. We have scanned the other evidence too on records. The medical evidence, the evidence of the Patwari and the other ocular evidence of almost all the witnesses, support the story of dragging of the injured and deceased by the accused when the latter were busy in their spree of removing the two injured persons namely Krishan Lal and Isher Singh to their house. Injuries noticed on the person of the two injured clearly spell out multiple abrasions and scratches over the whole back and buttocks besides other injuries noticed by the doctor. 38. We do not, thus, find any material on records to accept the plea of learned counsel for the appellants. This plea of the appellants counsel, too, thus, fails and is rejected. 39. Sh. Thakur, thereafter, persuaded us to believe that the prosecution story is unnatural, false and concocted. 38. We do not, thus, find any material on records to accept the plea of learned counsel for the appellants. This plea of the appellants counsel, too, thus, fails and is rejected. 39. Sh. Thakur, thereafter, persuaded us to believe that the prosecution story is unnatural, false and concocted. According to learned counsel, the story projected by the witnesses that one of the sleeves of the shirt of the deceased had been torn but according to learned counsel, this fact is not supported by inquest report. 40. We have examined the Inquest Report. This report does not support the contention of Sh. Thakur and on the other hand what is mentioned against column no.6, may be reproduced hereunder:- DREEDA PARCHAT i.e. TORN CLOTHES GALE MAIN RASSI PARRI HUIE HAI MAQTOOL KAI PAJAMA PER KHOON PARA HUA HAI. It has been mentioned in this report that five injuries were noted and the blood too was found to have coagulated. The report further records marks of dragging on the body of the deceased. This report gives history of the case as is reflected in the F.I.R., which report is signed by the concerned doctor on 21.05.1993. 41. We do not accept the submission of Sh. Thakur because the facts on records and the official documents duly proved by the prosecution do not permit us to take a view contrary to what has come in the evidence and recorded as such in the official records, which carry a presumption under Section 114 of the Evidence Act, and against which there is nothing on records to take a view other than the one taken by learned trial Court. 42. Sh. Thakur was repeatedly asked as to what was the explanation of the accused regarding the presence of the injured and deceased in the house of Amar Nath, accused, and that too when they were found tied with ropes to two pillars in the house of the accused. Sh. Thakur was further repeatedly asked to show as to in whose possession the land in dispute was at the time of the occurrence. Sh. Thakur had only one explanation that the case against the accused is false and fabricated, and that the presence of the deceased and the injured in the house of one of the accused has been just manipulated, which fact, according to learned counsel is not supported by evidence. Sh. Thakur had only one explanation that the case against the accused is false and fabricated, and that the presence of the deceased and the injured in the house of one of the accused has been just manipulated, which fact, according to learned counsel is not supported by evidence. He asserted that the appreciation of evidence by the Trial Court is against law. 43. In order to examine the plea of learned counsel, we refer to the statements of following witnesses:- PW- Mir Chand, Patwari, has stated that: "On 21.05.1993, I was posted at Patwar Halqa Chakwa and is still posted there. Police Batote had approached Naib Tesildar Batote and in turn Naib Tehsildar had directed me to accompany police on spot. On spot I prepared the site plan of the house of Amar Nath accused besides Akas Latha of survey no.53 which are on record. In the site plan I have indicated the dragging marks with dots in red ink. Akas Latha as per the latha is correct. The document has been marked as EXPW 14-R. Extract girdawri dated 25.05.1993 is also in my hand and bears my signatures. Entries in it are correct as per the record that has been marked as EXPW 14-R1. Survey no.53 is Kacharai land and as per record is shown in possession of Krishan Lal. The record also shows that there is Orchard in it and is in possession of Krishan lal. I am posted there since 1991. The entries showing possession of Krishan Lal in the Orchard is also recorded since 1991 in the record of girdawri. I saw the police on spot. I had seen the dead body of Krishan Lal in the room of Amar Nath lying with face towards the ground. One rope was around the throat of Krishan Lal. The rope was of white colour and was made of Jat. Site plan had been prepared on 25.05.1993 and handed over to police. I do not know the date when I went on spot." In cross-examination, he stated that: "In the Site plan EXPW 14-R, he has indicated the place where the dead body was lying in the room. He indicated that place of occurrence with circles in red ink at the instance of police. The dots in red ink too have been shown by him at the instance of police as the marks of dragging. He indicated that place of occurrence with circles in red ink at the instance of police. The dots in red ink too have been shown by him at the instance of police as the marks of dragging. He himself found the marks of dragging there. There was no specialty in those marks of dragging, same could have been caused by some heavy object, mat, duret or piece of wood. In EXPW 14-R, he has given the key regarding the markings. In the site plan of the house, he has shown the Ist floor and the second floor but has not given the details thereof. Adjacent to the survey no.53 is the land of accused. The word Mehfooz Kacherai means that that land is of villagers for grazing of cattle. As a Patwari, it is his duty that whenever he notices that such land has been taken into possession by anyone person, he has to report the matter to his officers. As Patwari, he had come to know that the process for ejectment of Krishan Lal from that land was going on and the order for his eviction had been there. That order of eviction whether had been executed on spot or not he does not know. He has admitted that an application of Krishan Lal had come to him as Patwari that the land under survey no.53 and the land of accused adjacent there to be demarcated. He had reported about same that the original Akas Masavi is not available thus demarcation cannot be affected. The report to this effect (photocopy) produced by counsel for accused has been admitted as correct by the witness and the witness has further stated that the report dated 16.10.1993 is in his hand and bears his signatures, same has been marked as EXD-14." PW- Pritam Singh, Photographer, has stated that: "He has been running a shop at Batote under the name and style of P. S. Studio for the last eight years. On 21.05.1993, one police constable came to him and asked him that SHO has sent for him. He went to Police Station, Batote, where SHO told him that they have to proceed to Chakwa, he went with police to Chakwa. Many people were there. They went inside the house where one man was lying dead. He took photographs of that person and handed over 43 photographs to police. He went to Police Station, Batote, where SHO told him that they have to proceed to Chakwa, he went with police to Chakwa. Many people were there. They went inside the house where one man was lying dead. He took photographs of that person and handed over 43 photographs to police. These photographs had been taken by him at the instance of SHO P/S Batote. He had gone there on spot three times to take the photographs. On first occasion he had taken the photograph of a dead person lying in the room, the next time he had taken the photographs of the land, one shoe and a piece of cloth. He took photographs of the objects as directed by police. The third time he went on spot and took photographs of accused except ladies when male accused were taken to the house and then to the land and at that time some sticks were got recovered by police through accused. Those sticks were kept in the hands of accused and he took the photographs." PW- Rafiq Ahmed has stated that: "In the year 1993, he was engaged in construction of a Tower at Chakwa Batote. Their Deera (residence) is in front of the house of accused across the nallah. At 4 O Clock, they heard noise and cries. They were sitting outside their residence. He and his other companions on humanitarian grounds went towards that side but the forest was there and they did not see anything as to where from the cries were coming out after a little while he found five persons whom he could not identify and cannot identify as it was from a distance of more than 15 chains and thereafter saw two persons being dragged who were taken inside the house of accused, then evening fell. They were asleep in their Deera (residence) but prior to it in the evening they had seen 2-3 persons armed with sticks proceedings towards house of accused but could not identify those persons. One person was wearing Bushirt and that person has something in his hand and whether that was a stick or a gun they could not make difference from a distance. Those persons returned thereafter. One person was wearing Bushirt and that person has something in his hand and whether that was a stick or a gun they could not make difference from a distance. Those persons returned thereafter. When they were asleep, one Police Constable came to their residence and demanded their help whereupon he and some other three persons went with that police constable with the permission of their mate. When they reached the house of accused with that police constable, they found police was there and police was beating. The police was about to beat them when somebody told them that they are the labourers. They fond two persons in the house of accused and one out of those two persons had a cloth over it and the other was lying there and was talking. They were asked by police to take up that person who was talking and thereafter they carried that person on the cot to National Highway and they returned to their home. They do not remember the name of the person whom they had carried on the cot. They had carried that person on the cot at the instance of Police as that man was not able to walk." PW- Saif-Ud-Din has stated that: "In the year 1993, they were engaged in construction of an electricity Tower in village Chakwa of Batote and they were putting up there. It was evening time when he reached his residence and were asleep that police came there and asked them for help, whereupon nine persons from their residence went with police to one house. To whom that house belonged, he does not know. Two persons were lying in that house. Police asked them to pick up those two persons but the moment they went to pick up the persons, they found one was dead and the other was alive. The police then told that till the officer does not come, they cannot lift those two persons. Then after one hour SHO came there, the person who was alive was offered water and that person was able to talk and was carried on a Cot from that place to Ladwal Morh. There they heard that the leg of that person had broken. Police asked them to pick up that person so they did it. Then after one hour SHO came there, the person who was alive was offered water and that person was able to talk and was carried on a Cot from that place to Ladwal Morh. There they heard that the leg of that person had broken. Police asked them to pick up that person so they did it. The person they had carried on Cot from that house to Ladwal Morh, they had not enquired his name. PW- Mohd. Hussain has stated that: "In the year 1993, he was working as a labour in construction of Bimal Tower at Batote. They were having their residence at Chakwa. They noticed the occurrence from a distance. They were at their residence and at ten in the evening, police from Police Station, Batote, came there and asked them to get up, whereupon he, Saif-Ud-Din, Abdul Lalif, Rafiq and the contractor, Yousaf Malik, were taken by police alongwith to the house of some person. They found one dead body tied in that house and other person was also tied. The other person was also half dead. They did not went near. The police asked them to lift the person who was alive. They picked up that person on a Cot and carried that person upto the road and came back. The person they carried on the Cot was not able to talk but was crying with pain. The dead body that was lying in that house was not picked up. The injured after being taken to the road, the police remained there and they returned to their residence." PW- Munshi Ram has stated that: "He is Namberdar of village Chakwa. On 20th of May, 1993, he had gone to pasture and was returning to his home at 7.30 in the evening. He was told by his family members that some fight had taken place and somebody was crying that he has been killed. The man crying had been dragged towards the house of Amar Nath. He hurriedly went to the house of amar Nath and found that police had reached there and police told that dead body of Krishan lal is lying inside. Police opened the room of the house of Amar Nath. The dead body of Krishan Lal was lying there and had rope round the neck. He hurriedly went to the house of amar Nath and found that police had reached there and police told that dead body of Krishan lal is lying inside. Police opened the room of the house of Amar Nath. The dead body of Krishan Lal was lying there and had rope round the neck. With the rope the hands and feet of deceased Krishan lal had been tied and blood had oozed from the mouth of Krishan Lal, deceased, that had coagulated. Besides Isher Singh S/O Bishwa Nath was also found tied to a police with a rope. The hands and feet of Isher Singh also were found tied and was lying on the ground but was alive. Police first opened the ropes of Isher Singh and then carried isher Singh to hospital on a Cot. The dead body remained there. He went to his home thereafter as his minor children were at home. 3-4 police constables remained on spot to take care of the dead body. Next day at seven in the morning, he again went on spot, SHO Batote was there. One photographer was there. The photographs of the dead body in the room were taken. Plain clay and blood stained clay was lifted from the room and separately sealed into bottles. The documents were prepared there. Two ropes made of Jat were also seized by police and the seizure memo was prepared. His signatures were taken on this seizure memo on spot. SHO enquired as to where from the occurrence started and Bishwa Nath told that he will pin point the place where from the occurrence took place. Police persons, the witnesses namely Bishwa Nath, Jagdish, Subash and many other people were there. They went to the place where from the occurrence had started. Photographer took photographs there. The sleeve of the shirt of Krishan Lal, deceased, was found in the path and the marks of dragging were there from the place of initial occurrence to the house of Amar Nath. The police came back to the house of Amar Nath . The dead body of Krishan Lal was picked up and taken to Batote Hospital where the post mortem was conducted. The doctor removed some blood from the dead body and kept the same in a glass bottle that was sealed on spot by police. The police came back to the house of Amar Nath . The dead body of Krishan Lal was picked up and taken to Batote Hospital where the post mortem was conducted. The doctor removed some blood from the dead body and kept the same in a glass bottle that was sealed on spot by police. Seizure memo was prepared for the same and the witness has identified his signatures on seizure EXPWS (XIX). The contents have been admitted as correct by the witness.The sleeve of the shirt of deceased was also seized by police and his signatures were taken. He can identify the clothes and the ropes and seized items. Thereafter 3-4 days on 25th May, 1993, he Bishwa Nath, Safru and Jagdish had gone to Police Station Batote to enquire about the case as to whether accused were apprehended, whereupon they were told that accused have been apprehended and police was enquiring from accused and accused, Sansar Chand, disclosed that the iron rod (Sarya) has been concealed by him near pole in his house, while Shankru, accused, made disclosure about one stick concealed by him under a bed in the house of his father-in-law. Hukam Chand, accused, also made disclosure about a stick that he had concealed beneath Table and Pritam Singh made disclosure about a stick that he had concealed under his bed. Police recorded these statements and he alongwith Bishwa Nath, Jagdish and Safru accompanied police and accused to the house of Amar Nath and there the Sarya was brought by Sansar Chand, accused, from underneath the bed as has been disclosed by him. That Sarya was seized by police. Then Shankru got the stick from underneath the bed that too was seized, thereafter Hukam Chand got the stick from underneath the table that too was seized and thereafter Pritam Singh also got one stick from underneath the bed that was seized. The stick recovered at the instance of Shankru was of 2 = to 3 feet in length and its diameter was from one inch to 1 inch. Seizure memo of stick at the instance of Pritam Singh also gives correct length of the stick but the diameter of the stick was between 1 to 1 = inch and it was not of 4 = inch diameter. Seizure memo of stick at the instance of Pritam Singh also gives correct length of the stick but the diameter of the stick was between 1 to 1 = inch and it was not of 4 = inch diameter. The witness has identified the sticks, the shirt, the trouser of deceased and the rope and Sarya." PW-Khazan Chand has stated that: "Deceased, Krishan Lal, was known to him. He knows Isher Singh and accused as well. On 6th of Jeth last year he had gone to Ladwal Morh to make purchase and on his return when he reached near the house of Krishan Lal, it was 5.30 to 5.45 evening time he heard the voice of Krishan Lal who was crying Mar diya mar diya. He looked to that direction where from the voice had come but did not see Krishan Lal and he ran and saw Sansar Chand, Amar Nath, Hukam Chand, Pritam Singh, shankru, Smt. Satya and Smt. Shanti beating Krishan Lal with sticks. Accused, Sansar Chand was having Sarya in his hands and others were having sticks. The place where Krishan Lal was being beaten is the land of Krishan Lal. He saw this from a distance of 40-50 feet. He started to move on spot but in the meanwhile he saw that Isher Singh also came near Krishan Lal and asked accused that Krishan Lal be spared but Amar Nath, accused, caught hold of Isher Singh from back side and Sansar Chand struck a blow on Isher Singh that was avoided by Isher Singh by turning his head on one side as a result that sarya blow hit Amar Nath in head. The next blow aimed by Sansar Chand hit Amar Nath on his right arm. The sarya blows were aimed on the head of Isher Singh but Isher Singh avoided by tilting his head and both blows hit Amar Nath. When the sarya blow hit Amar Naths arm, he lost his grip over Isher Singh. Sansar Chand then gave a sarya blow to Isher Singh that struck Isher Singh on the leg, in consequence whereof he fell down. Hukam Chand, accused, also beat Isher Singh with stick besides Pritam Singh and Shankru also beat him. Then they started dragging Isher Singh and till that time Krishan lal had been kept overpowered and Krishan Lal was also dragged. Hukam Chand, accused, also beat Isher Singh with stick besides Pritam Singh and Shankru also beat him. Then they started dragging Isher Singh and till that time Krishan lal had been kept overpowered and Krishan Lal was also dragged. Isher Singh and Krishan Lal were dragged in slope towards the house of accused. Hukam Chand and Shankru had caught hold of Isher Singh by legs while dragging whereas Sansar Chand and Pritam Singh had caughthold of the legs of Krishan Lal for dragging. The other accused were beating them with kicks. Amar Nath was telling take them to home. Then he (witness) returned from that place and went his home as he felt sacred. He does not know the shop of Bishwa Nath. There is a separate path from the land of Krishan Lal to the shop of Bishwa Nath and that is not the path he had used for going to Ladwal Morh. The two paths are not visible from each other as in between there are bushes and Orchard. Next day in the morning he came to know that Krishan Lal had been killed . He went to the house of Amar Nath. Some four persons Puran Singh, Vakil Singh, Tilak Raj and Swami Raj were with him and they went to the house of Amar Nath at 7 a.m. in the morning. Before their reaching that place, other 4-5 persons had reached there and they were Safru, Premu, Daya Ram, Jogu, Shamsher Singh and Subash besides two police persons. All the above persons were in the compound of the house. Room of the Amar Naths house was closed. Police came at 9-10 O Clock and one Subedar was with police. The room was opened. He (witness) also went into the room and noticed that Krishan lal was tied with a pole by a rope Gajar and was dead. Another rope was with another pole and no other was tied there. Police recorded his statement there in Veranda and police used to call people turn by turn. He does not know whose statement was taken but his statement was recorded. The dead body of Krishan Lal was taken by police to Ladwal Morh, wherefrom it was taken in police vehicle to Batote Hospital. He also sent in that vehicle. Shirt and trouser were the clothes of Krishan lal. He does not know whose statement was taken but his statement was recorded. The dead body of Krishan Lal was taken by police to Ladwal Morh, wherefrom it was taken in police vehicle to Batote Hospital. He also sent in that vehicle. Shirt and trouser were the clothes of Krishan lal. He can identify the shirt and trouser, and the witness has identified the trouser, torn shirt and pent. The shirt and pent have been marked as Exhibit (IV) & Exhibit (V). The shirt, Krishan Lal, was wearing whether has both the sleeves, he did not pay any attention to that but on seeing the shirt it was found that the shirt has only one sleeve and the other sleeve is torn." PW- Tanvir Ahmed, Inspector, the then SHO, Police Station, Batote, Investigating Officer, has stated that: "On 20.05.1993 at about 7.30 in the evening, the complainant of this case, Sh. Bishwa Nath, lodged a written report in Police Station, Batote, to the effect that there was enmity between the accused and him regarding land which was subjudice before D.C., Doda. His two sons Krishan Lal and Isher Singh had gone into the land and as accused were ploughing said disputed land, Krishan Lal objected, whereupon accused beat them and took them to their own house by dragging. The complainant followed them upto the steps near the house of accused and also raised an alarm whereupon Sansar Chand, accused, told that he had killed them. Many people gathered there and complainant heard voice of his son to the effect that Krishan Lal has been killed and he is also being killed. On receipt of this report, case bearing FIR No.52/93 U/Ss 302, 307, 148, 342, 34 RPC was registered and he went on spot immediately. The application presented by Bishwa Nath is on record and the F.I.R., was registered on the basis of said application. The application has been marked as EXPW 20-A and the F.I.R., being in his hand and bears his signatures and has been marked as EXPW 20-B. The signatures of Bishwa Nath as complainant are also on the F.I.R. After registration of the case, he went on spot alongwith his team of police constables. They opened the door of the house and the room was like a hall having wooden pillars. They opened the door of the house and the room was like a hall having wooden pillars. They found Krishan Lal and Isher Singh tied to wooden poles with ropes made of Jat. Krishan Lal was found dead whereas Isher Singh was injured and was moaning. As Isher Singh was alive so to save his life the ropes were untied and steps were taken to take him to Batote Hospital. The Injury Form of Isher Singh was prepared and the Injury Form is in his hand. The certificate of the Doctor EXPW-M14/A is already marked on the injury certificate. Isher Singh made a statement in Batote Hospital that was attested by the Medical Officer who was on duty there. Isher singh is alive. In the morning he again went on spot and took Photographer and Patwari with. On reaching the spot he called the people and prepared Panchnama of the dead body of Krishan Lal after taking its photographs. The Panchnama of the dead body dated 21.05.1993 is in his hand and bears his signatures, contents are correct and it has been marked as EXPWS (VI). From the spot blood stained and unstained clay was lifted and sealed, the seizure memo to this effect EXPWS (II) and EXPWS (III) respectively are correct. Then the disputed field inspected, he found the marks of dragging there and the dragging marks were upto the house of accused from that place. Patwari was asked to make a mention of these in his site plan. In the path they found the sleeve of the shirt of Krishan Lal that was seized and the seizure memo EXPWS (IV) is correct. From the room of accused where from the dead body was lifted, rope made of Jat was also seized vide seizure EXPWS and the rope that had been used to tie Isher Singh too had been sized vide seizure EXPWs (I). Both these seizure memos are correct. The statement of witnesses were recorded by him under Section 161 Cr.P.C., got the post mortem of Krishan Lal conducted at Batote Hospital and at the time of post mortem the clothes of deceased, Krishan Lal, were also seized vide EXPWS (XVIII). The blood stained touser of Krishan Lal was sealed on spot and it has been marked as EXPWS (XVIII). The blood stained touser of Krishan Lal was sealed on spot and it has been marked as EXPWS (XVIII). The site plan of the room where the dead body had been found was prepared and the site plan of the place where the occurrence had begun was also prepared. The iron rod, sarya and three sticks present in the Court are the same and has identified same. The doctor gave his opinion regarding these sticks and Iron rod vide certificate EXPW-M14/D and EXPW-M14/C. He prepared the site plan of the place of recovery as well, that has been marked as EXPW 20-E. As per his investigation, offences under sections 302, 307, 148, 149, 34 RPC were established against the accused." PW- Isher Singh has stated that: "All the accused are known to him. Deceased Krishan Lal was his brother. He and deceased were putting up at different places. On 20.05.1993, he was preparing his land at Chakwa Batote. The time was between 5.30 to 5.45 p.m., he hard an alarm. The alarm has been raised by his bother Krishan Lal. Krishan Lal was crying at the top of his voice, that land is his land dont enter in that land. This alarm was coming from a distance of 100 meters. That place was adjacent to the house of Krishan Lal where from he had raised the alarm. From the land where he (witness) was doing the job, the land of Krishan Lal was visible. On hearing the cries of Krishan lal he (witness) noticed Amar Nath, Sansar Chand, Hukam Chand, Pritam Singh, Shankru, Mst. Satya w/o Hukam Chand and Mst. Shanti w/o Sansar Chand proceeding towards the land of Krishan Lal with plough and Oxen. The above persons besides carrying the plough and oxen had sticks with them. Accused, Sansar Chand, had one Iron rod (Sarya) in hand. All the above accused entered into the land of Krishan Lal. Krishan Lal prevented them and then Krishan Lal raised a cry beat. The witness ran towards that side and reached the spot. The accused were beating Krishan lal. Sansar Chand, accused, was having Sarya in his hand and other accused were armed with Lathies and sticks. The accused were beating Krishan lal with these arms besides were beating Krishan lal with hands and kicks. The witness ran towards that side and reached the spot. The accused were beating Krishan lal. Sansar Chand, accused, was having Sarya in his hand and other accused were armed with Lathies and sticks. The accused were beating Krishan lal with these arms besides were beating Krishan lal with hands and kicks. He (witness) prevented accused from beating Krishan Lal but accused Amar Nath took him (witness) in the fold of his arms and Sansar Chand, accused, tied to give a blow with a Sarya on the head of the witness but that hit head of Amar Nath, accused, who had caught hold of the witness. Sansar Chand again tried to give a Sarya blow to this witness but that hit the right arm of Amar Nath and the witness saved that blow, thus, Amar Nath got the injury by this blow of Sarya which was inflicted by Sansar Chand. The witness freed himself from the clutches of Amar Nath but all the accused beat him with sticks, lathies and Sarya. The accused thereafter started dragging Krishan lal and witness and carried them dragging towards the house of Amar Nath. He and his brother both were dragged by catching hold of their legs. In the way, there were bushes and they tried their best to free themselves by catching hold of these bushes but accused Shanti and Satya continued to beat him and his brother with kicks, fists and sticks, as a result they could not catch hold the bushes. Amar Nath, accused, that time asked other accused that both the brothers (witness & Krishan Lal) be taken home and they have to be done away with. Both of them were taken inside the room of the house of Amar Nath by dragging. They had been dragged over a distance of 750-800 feet. In the room Krishan Lal and he (witness) were tied with a rope with a pole. He (witness) started vomiting, whereupon Amar Nath, accused, told that he is about to die. The arms, legs and throat of his brother were tied with a rope and then tied with a pole. The poles were different. After tying him and his brother with poles, they were beaten with hands and kicks. His brother cried that he be spared and asked for water but accused, Amar Nath, told that urine be given to him and the beating continued. The poles were different. After tying him and his brother with poles, they were beaten with hands and kicks. His brother cried that he be spared and asked for water but accused, Amar Nath, told that urine be given to him and the beating continued. In the meanwhile, he (witness) heard the voice of his father from outside who was telling that his sons be spared but by that time Krishan Lal had died because of bearing. The witness heard the voice of his father and cried that his brother is dead, he be saved. In the meanwhile, he heard the voice of one Safru who also was telling that he (witness & Krishan Lal) be spared. On hearing, the cries of Safru and father of the witness, accused Sansar Chand, Amar Nath came out of the room and told that they too will be beaten in the same manner as they have done to Krishan Lal and the witness. In the darkness when police came, they were 3-4 persons, whether SHO was there he cannot say. He saw police personnel in uniforms. Besides police some villagers namely Jagdish, Subash, Shamsher Singh, Safru and others were there. He (witness) was freed from the rope and the pole and told that he (witness) be shifted to hospital otherwise he will also die. They did not remove Krishan Lal that time as Krishan Lal was dead. He (witness) was taken to Batote Hospital. He remained for two days in Batote Hospital and was shifted to Jammu Hospital on third day where he remained admitted for 28 days. His leg has been plustered and remained in hospital at Jammu for 28 days with plastered leg and was discharged thereafter. He still is not cured and walks with the help of a crutch. He cannot perform his routine work. Police had recorded his statement at Batote Hospital, the next day after the occurrence. On the day of occurrence, he was wearing pent and shirt. The pent was black in colour. That pent had been seized by police in Batote hospital. There were blood stains on the pent. He can identify his pent. His shirt too had been seized by police. On the day of occurrence, he was wearing pent and shirt. The pent was black in colour. That pent had been seized by police in Batote hospital. There were blood stains on the pent. He can identify his pent. His shirt too had been seized by police. He can identify the shirt as well." In cross-examination, the witness has stated that: "The moment he heard the voice of his father, when he was tied to a pole inside the room, neither he talked to his father nor his father came inside the room. The witness has suo-moto stated that he (witness) had told that brother has been killed and he is not being spared. When police came inside the room, his father Bishwanath was not with police at that time. He (witness) saw his father in Batote Hospital the next day in the morning and at that time the police had recorded his statement and he had stated before police that after hearing the voice of his father he had also heard the voice of Safru as well and at that time he (witness) was in the room. The statement of police does not mention that he (witness) heard the voice of Safru. By the time he had heard the voice of his father and Safru he had not seen any other person there. He has no knowledge as to who saw and witnessed his dragging by accused to the house of Amar Nath. He was being dragged and had called his father as well that he has been tied and his brother after being tied has been beaten to death. He had told this to police as well while making statement. Cases were subjudice regarding land in question. The cases are subjudice before D.C. Doda. The land where Krishan Lal was beaten, is the land regarding which the case is subjudice before D.C. Doda. He does not know as to whether accused are tenants of their land. He does not know the date when he was discharged from the hospital. It takes 20-25 minutes to reach the house of Ram Lal and Meher Chand. It is wrong that the house of Chuni Lal is at a distance of 100 feet from the house of Krishan lal. The house of Amar Nath is across the canal. He does not know the date when he was discharged from the hospital. It takes 20-25 minutes to reach the house of Ram Lal and Meher Chand. It is wrong that the house of Chuni Lal is at a distance of 100 feet from the house of Krishan lal. The house of Amar Nath is across the canal. He was dragged across the canal and then taken inside the house of Amar Nath. No house falls in the way from the place of occurrence to the house of Amar Nath but the houses are at a distance and those houses are of Amru, Paras Ram, Bhagumal, Sirya and others. When he heard the cry of his brother, Krishan Lal, that nobody should enter his land, he (witness) saw that 2-3 oxen were with accused but they had not ploughed the land and only one plough was there. He had stated before the police that when the alarm was raised, he saw from his own land that accused had entered into the land of Krishan Lal and that Krishan Lal was being beaten. He went running to that side. He did not raise any alarm. He went running to save his brother. Sansar Chand, accused, tried to give sarya blow with force that he saved by turning to one side and the blow hit head of Amar Nath. What happened to the head of Amar nath he does not know but Amar nath was holding him and had not left the witness from his grip despite having received the blow on his head. He tried to free himself from the grip of Amar Nath that second blow aimed by accused Sansar Chand with a sarya on the witness hit Amar Nath, as Amar Nath is smaller in size than the witness. During dragging he moved his legs here and there. The dragging was for a distance of 750 feet. His brother Krishan Lal had been dragged simultaneously as such he could not see as to whether Krishan lal was being dragged ahead of him. When police persons came, accused Amar Nath and Sansar Chand were not with them. It is wrong that Amar Nath had brought the police alleging that he (witness) and Krishan Lal had forcibly entered into the room and had broken arm of Amar Nath. When police persons came, accused Amar Nath and Sansar Chand were not with them. It is wrong that Amar Nath had brought the police alleging that he (witness) and Krishan Lal had forcibly entered into the room and had broken arm of Amar Nath. When he came back from the hospital to his home, he was not asked by police to show the plae where from he had been dragged. The witness had stated that from Jammu hospital he went to his brothers residence Shanker Singhs house at village Krode Illaqa Gouri Kund. He was carried on a cot from the house of Amar nath to Ladwal Morh, who had carried that Cot he does not know, but in the same breath had stated that probably the labourers of the tower had carried the cot as police had brought those labourers from their residence. Next day morning when police recorded his statement the dead body of his brother, Krishan lal, had not been brought to Batote by police. His father Bishwanath was a respectable man in the area. He (witness) cannot say as to why the villagers did not came when his father and Safru raised alarm. After hearing the voice of his father and Safru, the witness had cried to them that Krishan Lal has been killed and his hands and arms are tied. The marks of tying were on his hands and arms that were noticed by police but by the time he (witness) reached hospital, those marks had disappeared. When accused were tying him with a pole, he vomited that time. When his statement had been recorded next morning in the hospital, the doctor was not there. When he was released from the pole, that time his statement was not recorded by police. The bushes were having thorns. Whether his clothes were caught in thorns he did not see. When he was shifted from the room to Batote hospital thereafter he was never taken to that room by police. It is wrong that they wanted to forcibly the land that the accused were not allowing as they happened to be tenants. The accused are not tenants of that land. He could see that clothes of Krishan Lal were drenched in blood from the place viz., pole with which he had been tied. The police men were telling that Krishan Lal is dead. The accused are not tenants of that land. He could see that clothes of Krishan Lal were drenched in blood from the place viz., pole with which he had been tied. The police men were telling that Krishan Lal is dead. In his presence Krishan Lal was not freed. He had told police that who amount accused dragged him and who dragged his brother, Krishan Lal. This is mentioned in the last line of his statement under Section 161 Cr.P.C. It is wrong that the iron rod (sarya) was of this witness. It is wrong that he (witness) and his brother inflicted injuries to Amar Nath. He did not state before police that he was freed from the pole that very time his brother was also freed from the pole. Police did not get the Sarya or sticks identified by him. The sarya and sticks were not seized in his presence. 44. We have examined the evidence of the witnesses referred to hereinabove as also other evidence examined by the prosecution. We find that there is no escape except to record the following conclusions: 1. Land comprised in survey no.53 is recorded in possession of Krishan Lal since 1991. 2. The dead body of Krishan lal and injured Isher Singh were found tied with two wooden pillars in the house of Amar Nath, accused. 3. Evidence of scuffle, fight, marks of dragging and belongings of injured and deceased were found in the land in dispute and on the way the two were dragged from the place, where the quarrel originated, to the house of Amar Nath, accused. 4. The injured, Isher Singh and deceased, Krishan lal, were retrieved from the house of Amar Nath where they were found tied with wooden pillars, by the Investigating Police Officer and police constables. 5. The injured was shifted to hospital on the 20th night of May, 1993 by the labourers residing nearby. 6. Independent witnesses i.e. S/Shri Mohd. Hussain, Saif-Ud-Din and Rafiq Ahmed, who had been engaged in the construction of electric tower and were putting up near the place of occurrence, had witnessed the presence of deceased and injured in the house of accused, Amar Nath, and they had carried the injured to the hospital, on being requisitioned by the police to do so. Hussain, Saif-Ud-Din and Rafiq Ahmed, who had been engaged in the construction of electric tower and were putting up near the place of occurrence, had witnessed the presence of deceased and injured in the house of accused, Amar Nath, and they had carried the injured to the hospital, on being requisitioned by the police to do so. Rafiq Ahmed, again an independent witness and a labourer engaged in the construction of electric tower at Chakwa, Batote, had seen two persons being dragged to the house of accused, Amar Nath, in the evening, and he alongwith other labourers were requisitioned by the police in the night to take the injured to the hospital. 7. PW- Dr. B. L. Bhagat, proves the receipt of injuries by the injured and the deceased. 45. In view of the above mentioned factors, it is not possible for us to take a view different from the one taken by the Trial Court. The evidence led by the prosecution is in abundance and proves its story as projected before the Trial Court. All the accused have participated actively in trying to oust Krishan Lal from his possession over his land and had attempted to plough the land, when Krishan Lal, deceased, tried to object, he was attacked by the accused party, which was armed with lethal weapons. The ladies too, did not lag behind in both causing injuries and dragging the two injured to the house of Amar Nath, where they were tied with two wooden pillars. 46. Prosecution witnesses have named all the male accused having caused injuries with sticks, lathies and iron rods, resulting in grievous injuries, to the injured. We, however, do not find any evidence of the female accused having taken part in administering beating to the two injured when they were tied in the house of Amar Nath, accused, where only male accused are shown to have caused injuries to the injured. All this has happened on the directions and instructions of Amar Nath, accused, who appears to be the main actor in the whole episode. 47. In criminal cases, where occurrence is admitted by the accused, the only question which the Criminal Court is required to decide as to which one of two parties i.e., the complainant or the accused was the aggressor. 47. In criminal cases, where occurrence is admitted by the accused, the only question which the Criminal Court is required to decide as to which one of two parties i.e., the complainant or the accused was the aggressor. Another consequent question may also arise for consideration as to whether or not, force more than required was used by a party to ward off threat to his person or property. 48. On the basis of evidence produced by the parties in the present case, learned Trial Court has come to the conclusion that it was the complainant who was in possession of the property. We affirm this finding of the learned Trial Court in the absence of any evidence to the contrary indicating accused to be in possession of the property. 49. It is abundantly clear from the evidence on records that Krishan Lal was unarmed, when attacked by the accused who, were armed with lethal weapons. He had raised alarm whereupon his brother, Isher Singh, reached the land where Krishan Lal was being beaten by the accused with lathies and iron rod. The brother of the complainant, Isher Singh, too, was beaten by the accused and later both of them were dragged to the house of the accused where they were tied with wooden pillars and administered severe beating as a result whereof Krishan Lal died and Isher Singh was beaten so much that his condition was described by the witnesses as half dead. All these factors stand proved from the prosecution evidence and we do not feel any difficulty in holding the accused to be the aggressors. Accused, appellants, after having been held to be the aggressors, the consequent point does not call for any comment because Krishan Lal and his brother were unarmed and there is no question of their having come on the land with a view to cause injuries to the accused. Injuries received by Amar Nath, accused, appears to have been caused in the quarrel and the explanation given by Isher Singh, injured, that Amar Nath had received the injuries at the hands of his own party, becomes plausible. 50. From the evidence produced during the trial of the case, we are satisfied in holding that all the accused had a common object to take possession of the land of Krishan Lal. They were armed with lethal weapons. 50. From the evidence produced during the trial of the case, we are satisfied in holding that all the accused had a common object to take possession of the land of Krishan Lal. They were armed with lethal weapons. They entered into and upon the land in possession of Krishan Lal with an intention to deprive him of his possession. All the accused acted in unison in furtherance of their object of obtaining the possession of the land and with that object caused grievous injuries to Krishan Lal and his brother, Isher Singh, who tried to save Krishan Lal from the clutches of the accused. The accused used sticks and iron rods so as to cause grievous injuries to Krishan Lal and his brother, Isher Singh. Accused had formed an unlawful assembly as contemplated by Section 141 of the Ranbir Penal Code. The accused, caused grievous injuries to the injured and dragged them to the house of Amar Nath, accused, with an intention to kill them. Unlawful assembly of the accused used force and violence in prosecution of their common object. The act of the accused, had death occurred, in the land in possession of Krishan Lal, would have amounted to murder punishable under Section 302 RPC. 51. We, therefore, affirm the findings of learned Trial Court in so far as it holds that the prosecution has succeeded in proving its case against the accused. We, however, are unable to accept the view of the learned Trial Court that the case of the appellants falls in Section 300 Exception 4 RPC i.e., CULPABLE HOMICIDE NOT AMOUNTING TO MURDER. Section 300 Exception 4 RPC may, thus, be examined. For facility of reference Section 300 Exception 4 is reproduced as under: "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Exception 4, for its application, is dependent on the following factors: (I) There is a sudden quarrel. (II) The sudden fight is in the heat of passion. (III) The fight is without premeditation. (IV) The offender does not take undue advantage of the sudden fight. (V) The offender does not act in a cruel or unusual manner. Exception 4, for its application, is dependent on the following factors: (I) There is a sudden quarrel. (II) The sudden fight is in the heat of passion. (III) The fight is without premeditation. (IV) The offender does not take undue advantage of the sudden fight. (V) The offender does not act in a cruel or unusual manner. We do not find, even one of the above extracted elements to have been satisfied in the facts and circumstances of the present case. We are at loss to appreciate as to how the Trial Court invoked Exception 4 of Section 300 RPC for holding the case of the appellants to be a case of culpable homicide not amounting to murder. On the other hand, what we find is that the accused had come at the place of occurrence, after having made preparation to take possession of the land and were armed with lethal weapons. Proceeding to the land of a person with lethal weapons with a view to oust him from the possession of said land, amply proves the resolve of unlawful assembly to take possession of the land, regardless of any obstruction and to meet any expected interruption by the use of lethal weapons, cannot, but, be held to be an intentional act of unlawful assembly to take possession, regardless of the consequences of taking such possession. The accused had the common object of taking possession of the land and in doing so, doing away with the life of any such person who would obstruct their resolve of taking possession. Such an act, cannot be said to be an act without premeditation, in a sudden fight, in the heat of passion, and upon a sudden quarrel. The accused in the present case have acted in a most cruel manner in causing injuries to Krishan Lal and his brother at their land and thereafter dragged them mercilessly for over an area of 700-750 feet which area was rough with bushes around and had tied the two injured with wooden pillars in their house where they were administered beatings to such an extent that one got serious injuries, whereas the other succumbed to the injuries in the house of the accused itself. Both the injured had been requesting the accused to spare them but the accused would not leave them and would keep them beating so that they are ultimately killed. Both the injured had been requesting the accused to spare them but the accused would not leave them and would keep them beating so that they are ultimately killed. Evidence on records further demonstrates that request of the deceased and injured for being provided water, is retorted by accused, Amar Nath, that they would be given urine instead of water to quench their thirst. 52. Such an act of the accused is cruel, which is done in an unusual manner. We, thus, find that the case does not fall in any one or the other ingredients of Section 300 Exception 4, on the basis whereof the case of the accused could be termed as culpable homicide not amounting to murder. 53. We, on the other hand, find that the accused, appellants nos. 1 to 5, are guilty of committing the murder of Krishan Lal, who was beaten to death by the appellants nos. 1 to 5. Appellants nos. 1 to 5 are, thus, held guilty of CULPABLE HOMICIDE punishable under Section 302 read with Section 149 RPC. 54. Appellants nos. 1 to 5 namely Amar Nath, Sansar Chand, Hukam Chand, Pritam Singh and Shankru are held guilty under Sections 302, 307, 447, 342, 148 & 149 RPC. Each one of these appellants is sentenced to: (a) Imprisonment for life and a fine of Rupees Ten Thousands under Sections 302/149 RPC. In default of fine each shall suffer further simple imprisonment for one year; (b) Imprisonment for a term of seven years and a fine of Rupees Five Thousand under Sections 307/149 RPC. In default of fine each shall suffer further simple imprisonment for one month; (c) Imprisonment for a term of one year and a fine of Rupees Five Hundred under Section 447 RPC. In default of fine each shall suffer further simple imprisonment for a week; (d) Imprisonment for a term of six months under Section 342 RPC and a fine of Rupees Five Hundred. In default of fine each shall suffer further simple imprisonment for a week; and (e) Imprisonment for a term of one year and a fine of Rupees Five Hundred under Section 148 RPC. Appellants nos. 6 & 7 namely Smt. Shanti Devi and Smt. Satya Devi are convicted under Sections 307, 149, 447, 342 & 148 RPC. In default of fine each shall suffer further simple imprisonment for a week; and (e) Imprisonment for a term of one year and a fine of Rupees Five Hundred under Section 148 RPC. Appellants nos. 6 & 7 namely Smt. Shanti Devi and Smt. Satya Devi are convicted under Sections 307, 149, 447, 342 & 148 RPC. Each one of these appellants is sentenced to: (a) Imprisonment for a term of seven years and a fine of Rupees Five Thousand under Sections 307 & 149 RPC. In default whereof, each shall suffer further simple imprisonment for one month. (b) Imprisonment for a term of one year and a fine of Rupees Five Hundred under Section 447. In default of fine each shall further suffer simple imprisonment for a week. (c) Simple imprisonment for a term of six months and fine of Rupees Five Hundred under Section 342 RPC. In default of fine, each shall further suffer simple imprisonment for a week. (d) Imprisonment for one year and a fine of Rupees Five Hundred under Section 148 RPC. In default of fine, each shall further suffer imprisonment for a week. 55. All the sentences shall run concurrently. Fine when realized shall be paid to the next of kin of the deceased, Krishan Lal, and injured, Isher Singh, in equal shares. 56. Order admitting the appellants to bail is withdrawn and their bonds cancelled. They shall surrender to custody for undergoing unserved sentences. 57. The upshot of aforesaid discussion is that Criminal Appeal No.02/2000 is dismissed as without merit and Acquittal Appeal No.26/2000 is allowed as indicated hereinabove. 58. The original file be remitted to the Trial Court for taking further proceedings under law.