JUDGMENT 1. - The instant appeal is directed against the judgment and order dated 30.8.2002 passed by the 'earned Additional Sessions Judge (Fast Track), Jhunjhunu in Sessions Case No. 56/2001 whereby accused-appellants Gopal, Mahender Singh, Rajesh Kumar, Hajari, Shankarlal and Devaram have been convicted and sentenced each as under:- U/s 148 IPC R.I. for three years and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days. U/s. 307/149 IPC R.I. for ten years and a fine of Rs.1,000/-, in default of payment of fine to further suffer S.l. for one month. U/s. 325/149 R.I. for seven years and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days each. U/s. 324/149 IPC R.l. for the three years and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days. U/s. 323/149 IPC R.I. for one year and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days. All the substantive sentences were ordered to run concurrently. 2. Briefly stated the facts of the prosecution case are that on 14.12.96 at about 11.30 a.m. PW11 Narendra Singh S/o Ummed Singh, by caste Rajput, R/o Kithana was going to the house of Indrapal from his house, when he reached near the shop of Dayanand situated in front of Gurdayal's house, accused Gopal caught hold of him from behind and thereafter the remaining appellants inflicted injuries with 'Sword' and 'Barchi' on his person. When PW12 Dalip Singh intervened to save Narendra Singh he was also caused injuries. The incident was seen by Leelu, Hanuman and Ummed Singh. Both the injured were taken to Chidawa hospital for treatment. PW12 Dalip Singh submitted written report Ex.P21 at PS. Chidawa at 8.00 p.m. on the same day. On the basis of written report Ex.P21 formal FIR Ex.P22 was registered and investigation commenced. On completion of investigation charge-sheet was filed against the accused appellants in the competent Court. In due course they came to be tried for the offences punishable under Sections 148, 307, 307/149, 323, 324 and 325 r/w Section 149 IPC. To prove these charges the prosecution examined as many as 13 witnesses. In their statement under Section 313 Cr.PC. the appellants pleaded innocence and false implication. In defence DW1 Ummed Singh was examined. 3. In due course they came to be tried for the offences punishable under Sections 148, 307, 307/149, 323, 324 and 325 r/w Section 149 IPC. To prove these charges the prosecution examined as many as 13 witnesses. In their statement under Section 313 Cr.PC. the appellants pleaded innocence and false implication. In defence DW1 Ummed Singh was examined. 3. The learned trial Judge after hearing the final submissions, convicted and sentenced the accused appellants as indicated here-in-above. 4. I have heard the learned counsel for the accused appellants, learned Public Prosecutor for the State and have also perused the impugned judgment as also the prosecution evidence. 5. Learned counsel appearing for the accused appellants contended that it is a case of over-implication. In FIR allegations were made against 14 persons whereas charge-sheet was filed only against six persons. Learned counsel further contended that in view of the contradictory statements of PW11 Narendra Singh and PW12 Dalip Singh (both injured witnesses), involvement of appellant Mahendra Singh in the alleged crime cannot be held proved. As per the version of PW11 Narendra Singh while the remaining appellants were inflicting injuries on his person, appellant Mahendra along with Ummed came in a jeep, a sword was given to Mahendra Singh by Ummed and thereafter Mahendra Singh inflected injuries with sword on his neck and chest whereas as per the testimony of PW12 Dalip Singh, appellant Mahendra Singh was already with the remaining appellants. He did not state that appellant Mahendra had come in a jeep with Ummed. Ummed was named as one of the assailants in written report Ex.P21 but charge- sheet was not filed against him by the police. So far as appellant Gopal is concerned, it was stated by Narendra Singh and Dalip Singh that when the remaining appellants were causing injuries with their respective weapons on the person of Narendra Singh, appellant Gopal was catching hold of him which is not believable. Learned counsel submitted that the learned Court below did not at all meticulously scan and scrutinise the evidence on the record and has committed a manifest error in coming to the finding of the guilt of these appellants. Therefore, both the appellants Mahendra Singh and Gopal are entitled to get acquittal from all the charges. 6. Learned Public Prosecutor appearing for the State has supported the impugned judgment of the trial court. 7. Therefore, both the appellants Mahendra Singh and Gopal are entitled to get acquittal from all the charges. 6. Learned Public Prosecutor appearing for the State has supported the impugned judgment of the trial court. 7. I have given my thoughtful consideration to the submissions made by both the parties. PW11 Narendra Singh stated that on 14.12.96 at about 11.30 a.m. he was going to the house of Indrapal from his house. He found Gopal and Vijay sitting at the shop of Dayanand. On seeing him Gopal started laughing but he did not stop and proceeded ahead. Suddently Gopal caught hold of him from behind and thereafter Hajari, Devi, Shankar and Rajesh inflicted injuries with 'Sword' and 'Barchi' on his person. It was further stated by Narendra Singh that at that time Ummed and appellant Mahendra Singh came in a jeep and Mahendra Singh caused injury on his chest with a sword which was given to him by Ummed. When Leelu, Hanuman and his father arrived on the spot, all the appellants fled away. He became unconscious. He was taken to Jaipur hospital. PW12 Dalip Singh deposed that Gopal caught hold of Narendra Singh and Hajari, Shankar, Mahendra, Devaram and Dharamveer inflicted injuries with sword, barchi and lathies on his person. When he made attempt to save Narendra, appellant Hajari caused injury with 'Barchi' on his head. 8. On close and careful scrutiny of the testimony of PW11 Narendra Singh and PW12 Dalip Singh, I have come to the conclusion that the prosecution has failed to prove the involvement of appellants Mahendra Singh and Gopal in the alleged time. It is not believable that when the remaining appellants were belabouring Narendra Singh with sword and barchi, appellant Gopal was catching hold of him. So far as appellant Mahendra Singh is concerned, both Narendra Singh and Dalip Singh have given contradictory statements. As per the deposition of Narendra Singh, appellant Mahendra Singh came in a jeep along with Ummed and caused injury on the person of Narendra Singh with a sword which was given to him by Ummed whereas Dalip Singh did not say no. As per his version all the appellants came together and assaulted Narendra Singh. As per the deposition of Narendra Singh, appellant Mahendra Singh came in a jeep along with Ummed and caused injury on the person of Narendra Singh with a sword which was given to him by Ummed whereas Dalip Singh did not say no. As per his version all the appellants came together and assaulted Narendra Singh. PW12 Dalip Singh did not name Ummed as one of the accused and it was not stated by him that appellant Mahendra had come in a jeep which was driven by Ummed and on arrival at the spot Ummed gave a sword to appellant Mahendra Singh with which he gave a blow on the person of Narendra Singh. 9. Hence, in the light of the foregoing discussions, I find that the prosecution has failed to prove any of the charges framed against appellants Mahendra Singh and Gopal. 10. It was also submitted by the learned counsel that appellants Rajesh Kumar, Hajari, Shankarlal and Devaram, being four in number were not the members of unlawful assembly and, therefore, they can be held responsible only for their individual act. X-ray plates were not produced. Radiologist and the treating doctor were not examined. The doctor who had conducted operation for the injury of right leg of injured Narendra Singh also was not produced in evidence by the prosecution. In these circumstances, the prosecution, has failed to prove that any of the injuries sustained by injured Narendra Singh was grievous in nature and sufficient in the ordinary course of nature to cause his death. All the injuries allegedly sustained by PW12 Dalip Singh were simple in nature. In view of these facts the prosecution has not succeeded in proving the charges under Section 307/149 and 325/149 against these four appellants and they can be held guilty only under Section 324 IPC. 11. After scanning the prosecution evidence, I find force in the above submissions of the learned counsel. As per the version of PW2 Dalip Punia, all the four injuries found on the person of Dalip Singh at the time of the medical examination were simple in nature. PW13 Dr. 11. After scanning the prosecution evidence, I find force in the above submissions of the learned counsel. As per the version of PW2 Dalip Punia, all the four injuries found on the person of Dalip Singh at the time of the medical examination were simple in nature. PW13 Dr. Ashok Mathur who had conducted the medical examination for the injuries of Narendra Singh has also stated in his deposition that as per the X-ray report, fracture of tibia and fibula bone of right leg of Narendra Singh was found but he had not taken the X-ray to injured Narendra Singh. Radiologist or Radiographer who had taken the X-ray has not been examined by the prosecution. X-ray report was not prepared by Dr. Ashok Mathur. He had not seen the X-ray plates. The treating doctor and the doctor who had conducted operation of Narendra Singh for his right leg injury have not been examined. The doctor who opined that the injuries sustained by Narendra Singh were dangerous to life has not been produced in evidence by the prosecution. 12. Thus, in view of the facts and circumstances of the case and the evidence dicussed above, I find that the prosecution has failed to prove that any of the injuries sustained by injured Narendra Singh was grievous in nature of it was sufficient to cause death in the ordinary course of nature. From the prosecution evidence it has been established that all the injuries sustained by Narendra Singh were simple in nature. 13. As per the testimony of PW12 Dalip Singh, appellant Hajari had caused injury with sharp edged Barchi' on his head but as per medical evidence all the injuries found on his person were caused by blunt weapon. It was not stated by Dalip Singh that appellants Shankar, Rajesh and Devaram had also caused injuries on his person. Therefore, the prosecution has failed to prove that there four appellants had caused injuries to Dalip Singh. 14. As per the testimony of PW11 injured Narendra Singh, appellants Shankar, Hajari, Rajesh and Devaram had caused injuries with sharp weapon on his person. The testimony of Narendra Singh has been corroborated by PW12 Dalip Singh and DW13 Dr. Therefore, the prosecution has failed to prove that there four appellants had caused injuries to Dalip Singh. 14. As per the testimony of PW11 injured Narendra Singh, appellants Shankar, Hajari, Rajesh and Devaram had caused injuries with sharp weapon on his person. The testimony of Narendra Singh has been corroborated by PW12 Dalip Singh and DW13 Dr. Ashok Mathur who has deposed that on medical examination on 15.12.96, following injuries were found on the person of Narendra Singh:- (1) Incised wound 15cm X 4cm vertically placed on left shin of tibia with muscles exposed with dark red clotted blood. (2) Incised wound transversely placed on left leg lower ⅓ lateral aspect with dark red clotted blood, muscles exposed. (3) Incised wound 3 X 1cm on anterior aspect left leg lower ⅓, with dark red clotted blood. (4) Incised wound 1 X 1/2cm. on left knee cap with drak red clotted blood. (5) Linear abrasion 2 X 1/4cm. with dark red clotted blood. (6) Incised wound 4 X 1/4cm. on middle of occipital region with dark red clotted blood. (7) Transverse linear abrasion 4Xlcm. On middle of upper chest, dark red. (8) Transverse abrasion 3 X 1/4cm. on base of neck on anterior aspect, dark red. (9) Incised wound 4 X 1/2cm. on right wrist anterior aspect with muscles exposed, dark red clotted blood. (10) Right leg under POP bandage. (11) Incised wound 2 X 1/2cm. with drak red clotted blood on lateral aspect right arm. (12) Incised wound of size 1 X 1/2cm.Xmuscle deep to 11/2 X 1/2 cm on middle phalanx of left index, middle and ring finger with dark and red clotted blood. (13) Incised wound 1 X 1/2cm. On right ring finger, palm aspect skin deep. 15. After scanning the testimony of injured Narendra Singh and Dalip Singh coupled with the medical evidence on record, I find that the prosecution has succeeded in proving that appellants Shankar, Rajesh, Hajari and Devaram had caused simple injuries with sharp weapon to injured PW11 Narendra Singh and they are guilty of the offence punishable under Section 324 IPC. The incident appears to have taken place all of a sudden and there was no intention of the appellants to cause death of Narendra Singh or to cause such injury which was sufficient in the ordinary course of nature to cause death. 16. The incident appears to have taken place all of a sudden and there was no intention of the appellants to cause death of Narendra Singh or to cause such injury which was sufficient in the ordinary course of nature to cause death. 16. As regards the sentence, the accused appellants Shankar, Rajesh, Hajari and Devaram have already remained in custody for more than two years and six months and therefore, I am of the view that ends of justice would be met if the appellants are sentenced to the period already undergone by them. 17. In the result, the appeal of accused appellants Gopal and Mahendra Singh is allowed and they are acquitted of the charges under Sections 148, 307/149, 325/149, 324/149 and 323/149 of the Indian Penal Code. 18. Appeal of the remaining accused appellants Rajesh Kumar, Hajari, Shankarlal and Devaram is partly allowed. They are acquitted of the charges under Sections 148, 307/149, 325/149, 324/149 and 323/149 of the Indian Penal Code, instead they are convicted under Section 324 IPC and sentenced to the period already undergone by them. 19. All the appellants are in jail. They shall be released forthwith, if not required in any other case. The impugned judgment dated 30.8.2002 passed by the learned Additional Sessions Judge (Fast Track), Jhunjhunu stands modified accordingly. *******