Judgment N.N. Mathur, J.-The appellants “A1” Abdul Khan, “A2” Motan Khan, “A3” Ali Gawar, “A4” Hanif Khan, “A5” Vali Mohd., “A6” Nijawat Khan & “A7” Beerbal Khan were put to trial on the charge of forming unlawful assembly and in prosecution of the common object committing murder of Kumbha Ram and causing injuries to other prosecution witnesses. The Learned Sessions Judge, Jaisalmer by Judgment dated 25.07.2003 having found the prosecution case proved, held the appellants guilty of offence under Section 302/149 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs. 2000/-and in default, to further undergo six months rigorous imprisonment. The appellants have further been convicted and sentenced as follows:- (a) Under Section 325/149 IPC (Except Motan Khan) Two years R.I. and a fine of Ra. 500/-and in default, to undergo 3 months R.I (b) Under Section 325 IPC (Motan Khan) Two years R.I. and a fine of Rs. 500/-and in default, to undergo 3 months R.I. (c) Under Section 148 IPC Two years R.I. and a fine of Rs. 500/-and in default, to undergo 3 months R.I. (d) Under Section 323/149 IPC : Six months R.I. (e) Under Section 447 IPC Three months R.I. 2. The factual scenario as emerged during the trial is that the appellants and the prosecution witnesses are the allottees of land for temporary cultivation in the colony of Rajasthan Canal Project, District, Jaisalmer. The appellants who belonged to the Muslim community are the old allottees in the area known as Hariar Minor within the jurisdiction of Nachna Colonisation Tehsil. PW 1 Raimal by caste Kumhar and his two brothers namely PW 2 Koja Ram and deceased Kumbha Ram were also allotted a piece of land in Chak No. 3 of Hariar Minor. All the three brothers constructed separate huts on the land allotted to PW 1 Raimal. With the help of deceased Kumbha Ram DW 1 Chima Ram could also get a nearby Muraba allotted in his favour. It appears that the appellants were not happy with the induction of victim party in the area as allottees. It further appears that at the instance of Kumbha Ram a proceeding under Section 107 CrPC was initiated against the appellants and their associates by the police. It appears that the appellants were not happy with the induction of victim party in the area as allottees. It further appears that at the instance of Kumbha Ram a proceeding under Section 107 CrPC was initiated against the appellants and their associates by the police. The untowards incident took place on 07.07.2000 in which one Kumbha Ram died and some of the prosecution witnesses sustained injuries on one side and from among the appellants Nijawat Khan was seriously injured. Two FIRs of the incident came to be lodged at Police Station, Nachna, out of which the first was lodged at 2:00 PM by the first appellant A1 Abdul Khan stating inter alia that having come to know A6 Nijawat Khan being seriously injured as a result of thrashing by Koja Ram (PW 2), Raimal (PW 1) etc. he rushed to the spot alongwith A2 Motan Khan. They were also thrashed by the prosecution witnesses. He brought the injured A6 Nijawat Khan in a Jeep to the Police Station. On this information, Police registered a case being No. 23/2000 for offence under Section 307 IPC. Both the injured Nijawat Khan and Motan Khan were sent to the Primary Health Centre at Pokran for medical examination. The Incharge of the Police Station, Nachna alongwith other police officials reached at the place of incident. PW 2 Koja Ram gave narration of the incident vide Exhibit-P-2. As per the version of incident given by him, he alongwith deceased Kumbha Ram, PW 1 Raimal and Babu Ram with their families were at their place of residence on Chak No. 3 HMR. At about 10-11 A.M. his neighbour DW 1 Chima Ram approached to him. A vehicle carrying slabs and other building material jammed in the sand. There were about 15-20 labourers alongwith the vehicle. Chima Ram made a request to him to arrange tea for the said 15-20 labourers. Chima Ram could manage to take the vehicle to his Muraba. At that time A1 Abdul Khan, A2 Motan Khan, A4 Hanif Khan, A5 Vali Mohd. A6 Nijawat Khan and other namely Mehrab, Mohammad Khan, Magan Khan, Suleman Khan and Peer Bux (not charge sheeted) and some more persons arrived on the land of Chima Ram and took up quarrel with him. They mounted assault on them by diverse weapons like Kulhari, lathies etc. A6 Nijawat Khan and other namely Mehrab, Mohammad Khan, Magan Khan, Suleman Khan and Peer Bux (not charge sheeted) and some more persons arrived on the land of Chima Ram and took up quarrel with him. They mounted assault on them by diverse weapons like Kulhari, lathies etc. In the assault Kumbha Ram died on the spot and number of persons sustained injuries. A1 Abdul Khan took the vehicle to his own Muraba and got the slabs and other building material unloaded. They were threatened not to report the matter to anybody else they may also be killed. Out of fear they did not move from the place of incident. However, they shifted the dead body of Kumbha Ram to the Muraba of PW 3 Multan Singh. The police recorded the statement of PW 2 Koja Ram on the Muraba of Multan Singh. On the basis of said Parch Bayan Exhibit-P-2 police registered a case being No. 24/2000 for offence under Sections 302, 147, 148, 149, 447 and 323 IPC, and proceeded with investigation. After usual investigation police laid charge-sheets in both the FIRs i.e. FIR Case No. 23/2000 and 24/2000. 3. The counter version about the incident was given by one of the appellants namely A6 Nijawat Khan in his statement under Section 313 of the Code of Criminal Procedure. He stated that the deceased Kumbha Ram offered him to collect fodder from his Dhani instead of going elsewhere. Thus, on the date of incident, he had gone to the Dhani of Kumbha Ram for collecting fodder. However, he was pushed inside the hut wherein Kumbha Ram, Chima Ram, Koja Ram, Raimal Ram and other ladies mounted attack on him with intention to kill him. Kumbha Ram and Koja Ram inflicted injuries by giving Kulhari blows. The wives of Raimal Ram and Chima Ram also made assault on him. On account of the said injuries, mandible bone was fractured. He also sustained serious injuries on various parts of the body. He fell down and became unconscious. On gaining consciousness, he found himself admitted in the hospital at Jodhpur. He remained in the hospital at Jodhpur for more than a month for the treatment. The trial Court acquitted the accused persons in FIR Case No. 23/2000. However, having found the prosecution case proved in FIR Case No. 24/2000 convicted and sentenced the appellants in the manner stated above. 4. He remained in the hospital at Jodhpur for more than a month for the treatment. The trial Court acquitted the accused persons in FIR Case No. 23/2000. However, having found the prosecution case proved in FIR Case No. 24/2000 convicted and sentenced the appellants in the manner stated above. 4. It is contended by the learned Counsel for the appellants that it is not safe to accept the evidence of prosecution witnesses more particularly in the instant case, as they are partisans and highly interested. It is also submitted that prosecution has not come forward with the whole truth and that the origin of occurrence has been suppressed inasmuch as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and under these circumstances the truth from falsehood cannot be separated and, therefore, none of the appellants could be convicted. On the other hand it is submitted by the learned Public Prosecutor and the learned Counsel for the complainant that the occurrence had taken place in the broad day light in a well planned manner and merely because the witnesses are interested, their evidence cannot be rejected and the view taken by the trial Court does not call for interference. It is not in dispute that there has been hostility between the parties. The prosecution witnesses belonged to one fraction. It also appears that the accused and the prosecution witnesses sustained injuries in one and the same incident. It is significant to note that both the parties gave their version soon after the occurrence. Thus, the question arises for consideration in this appeal is as to whether the incident had taken place in the manner alleged. It is also to be considered whether the case set up by the defence is acceptable. In view of the peculiar features of the case, we are required to appreciate the evidence of eye witnesses with great caution. 5. The prosecution examined 23 witnesses out of which PW 1 Raimal, PW 2 Koja Ram, PW 6 Miss Santosh and PW 13 Mohini are the injured eye witnesses. Whereas PW 1 Raimal and PW 2 Koja Ram are the brothers of the deceased Kumbha Ram, PW 6 Miss Santosh is the minor daughter and PW 13 Mohini the wife. 5. The prosecution examined 23 witnesses out of which PW 1 Raimal, PW 2 Koja Ram, PW 6 Miss Santosh and PW 13 Mohini are the injured eye witnesses. Whereas PW 1 Raimal and PW 2 Koja Ram are the brothers of the deceased Kumbha Ram, PW 6 Miss Santosh is the minor daughter and PW 13 Mohini the wife. PW 2 Koja Ram deposed that all the three brothers were allottees of different Murabas in Chak No. 3 Hariar Minor. All the three brothers constructed separate huts on his Muraba. All the three lived in the huts with their familes. DW 1 Chima Ram was his neighbor. On the date of incident at about 9-10 A.M. they were ploughing the land. The tractor was being driven by Babu Ram. All the three brothers with their families were sitting outside the huts. At that time Chima Ram arrived and requested them for arranging tea. He stated that the vehicle carrying slabs and other building material had jammed in the sand. He was to provide tea to the labourers. At that time some people in tractor and jeep arrived, which included A1 Abdul Khan, A2 Motan Khan, A3 Ali Gawar, A6 Nijawat, A7 Beerbal. They took up quarrel with Chima Ram and the people on the vehicle carrying slabs. They asked them not to unload the material on the Muraba as there was a stay order in their favour. DW 1 Chima Ram and his companions PW 23 Ramu Ram, PW 4 Chena Ram and about 4-5 persons ran away and took shelter in the Dhani of deceased Kumbha Ram. Appellant Abdul Khan took the vehicle to his field and got the material unloaded. Some more about 15-20 persons joined them. After certain deliberation A7 Beerbal Khan arrived at the hut of Kumbha Ram and gave a call to Chima Ram and Kumbha Ram. He asked them to come out for settlement of the dispute. Kumbha Ram declined to come out of the hut. A7 Beerbal returned back to A1 Abdul Khan. After some time the mob surrounded the hut of Kumbha Ram. A1 Abdul Khan was carrying lathi, Ali Gawar and Hanif Khan Kassi, Beerbal Jayee, Motan Khan, Vali Mohammad and Nijawat Khan lathies in their hands. Magan Khan, Jamal Khan and Peer Bux were also carrying lathies in their hands. There were about 40-50 persons. The quarrel ensued. After some time the mob surrounded the hut of Kumbha Ram. A1 Abdul Khan was carrying lathi, Ali Gawar and Hanif Khan Kassi, Beerbal Jayee, Motan Khan, Vali Mohammad and Nijawat Khan lathies in their hands. Magan Khan, Jamal Khan and Peer Bux were also carrying lathies in their hands. There were about 40-50 persons. The quarrel ensued. DW 1 Chima Ram, who was standing outside the hut of Kumbha Ram returned to his Muraba. A1 Abdul Khan gave a call to Kumbha Ram to come out. Kumbha Ram came out from the hut and pleaded mercy. As soon as he bent down to touch the feet of Abdul Khan, he (Abdul Khan) gave a lathi blow on his head as a result of which Kumbha Ram fell down. All the other accused persons with diverse weapons in their hands also thrashed Kumbha Ram. On intervention, PW 1 Raimal Ram, PW 13 Mst. Mohini the wife of Kumbha Ram and PW 6 Miss Santosh the minor daughter of Kumbha Ram, were also thrashed. He was being assaulted by A2 Motan Khan. He sustained injuries on the back and hand. Raimal Ram sustained injuries on his legs. Driver and other witnesses ran away from the place of incident. Abdul Khan and the other accused persons left the place of incident after giving a threat of life on disclosing the incident to any one. On their departure, they entered in the hut. Kumbha Ram had died. The dead body of Kumbha Ram was taken to the Muraba of Multan Singh on a camel cart. He also stated that all the accused persons arrived on his land after forming an unlawful assembly. They were unhappy with him for getting land allotted to an outsider. He also gave other details of the investigation. The statements of PW 1 Raimal Ram, PW 6 Santosh and PW 13 Mohini Devi are almost on the same line. 6. PW 3 Multan Singh is the neighbour of deceased Kumbha Ram. He stated that Abdul Khan was unhappy with the allotment of land in the colonisation area to Kumbha Ram, Koja Ram, Raimal and Chima Ram. He also stated that a preventive proceeding under Section 107 CrPC was taken against the appellants at the instance of Kumbha Ram. 6. PW 3 Multan Singh is the neighbour of deceased Kumbha Ram. He stated that Abdul Khan was unhappy with the allotment of land in the colonisation area to Kumbha Ram, Koja Ram, Raimal and Chima Ram. He also stated that a preventive proceeding under Section 107 CrPC was taken against the appellants at the instance of Kumbha Ram. He also stated that on the date of incident at about 10-11 Om Prakash son of Koja Ram approached to him and informed that the persons of Muslim community of Village Hariar had surrounded their hut. He immediately rushed to the place of incident. He found the vehicle of A1 Abdul Khan parked. Abdul Khan was standing near the vehicle along with Motan Khan, Ali Gawar, Hanif Khan, Jamal Khan etc. and getting the slabs unloaded from the vehicle. Abdul Khan questioned him as to why outsiders are getting the land allotted in their area. He also stated that he had obtained a stay order with respect to allotment of the Muraba in question. He also stated that he wanted to get the dispute settled. He also stated that the people were sitting in 2-3 groups. Beerbal Khan exhorted Abdul Khan to move towards the field of Kumbha Ram. After some time he heard the cries from the field of Kumbha Ram. He returned to his Dhani. After some time he went to the place of incident and found Koja Ram, Raimal and his family members were lying in injured condition. The dead body of Kumbha Ram was brought to his field on a camel cart. They were not having any means with them to reach police station for reporting the crime. However, at about 5:00 PM police arrived and inquired about the incident. 7. PW 4 Chena Ram is the neighbor of Chima Ram. He stated that Chima had brought the slabs and other building material in a vehicle. While he had got only 9-10 slabs unloaded, about 10-12 persons of Muslim community arrived and asked him to stop. Thereafter they moved towards the field of Kumbha Ram. He had heard the cries of ladies and children from the field of Kumbha Ram. 8. PW 5 Sumer Ram also stated that while DW 1 Chima was getting the t