Judgement GUMAN SINGH, J. :- This appeal under Section 374(2) of the Code of Criminal Procedure is directed against the judgment and order dated 18-7-2003 passed by learned Additional District and Sessions Judge (Fast Track) Behror, District Alwar, in Sessions Case No. 23/2002(4/2002) whereby the accused appellants have been convicted and sentenced as under :- Appellant Pradeep Kumar Under Section 302, I. P. C. To suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer three months simple imprisonment. Under Section 148, I. P. C. One year rigorous imprisonment with fine of Rs. 500/- in default, two months simple imprisonment. Under Section 323/149, I. P. C. Six months rigorous imprisonment with fine of Rs. 200/- in default, one month additional simple imprisonment each. Under Section 447, I. P. C. Three months simple imprisonment. Appellants Prabhati Lal, Sheesh Ram, Pramod, Nand Ram, Subhash Chand, Prahlad, Mahendra, Bodan and Vishambhar Dayal Under Section 302/149 Rigorous imprisonment for life with fine of Rs. 1000/- each in default, three months additional simple imprisonment each. Under Section 148, I. P. C. One year rigorous imprisonment with fine of Rs. 500/- each in default, two months simple imprisonment each. Under Section 323/149, I. P. C. Six months rigorous imprisonment with fine of Rs. 200/- each and in default, one month additional simple imprisonment each. Under Section 447, I. P. C. Three months simple imprisonment. All the sentences were ordered to run concurrently. 2. As per prosecution story the informant Mool Chand s/o. Rajaram Ahir r/o. Kankar, lodged a written report (Ex. P. 9) at Police Station Behror on 29-9-2001 at 9.30 a.m. with the averments that on the date of incident his father Ratiram had gone to his field at about 8 a.m. There was a dispute regarding the field. Vishambhar s/o. Mathuu Ram, Parbhati s/o. Maduram, and Shishram s/o. Prabhati Ahir, inflicted lathi blows, causing him to fall down and then Pradeep s/o Vishambhar Ahir, who was on the driver's seat of the Tractor, along with Pramod s/o. Prabhati and Nandram s/o. Kanharam Ahir, sitting on mudguard of the tractor, ran over Ratiram with front wheels to and fro in two three rounds and killed him. The Family members of the informant who went in rescue were assailed by Roop s/o. Banwari, Subhash s/o. Banwari with lathi and Farsi causing injuries to Jagdish s/o. Ghasiram, Singha alias Ram Singh s/o. Ghisaram who became unconscious. Prahlad s/o. Budhram, Mahendra s/o. Budhram, Bodan s/o. Amar Singh Ahir and Subhash s/o. Gilore, who were armed with lathies and farsi obstructed the informant and others approaching Rati Ram. Then injured Jagdish s/o. Ghisa Ram and Ram Singh s/o. Ghisa Ram were taken to hospital at 'Mandan' while the dead body of Ratiram was left there. 3. On this report, a case under Sections 147, 148, 149, 323, 447, 302, IPC was registered and investigation commenced. Autopsy on the dead body of Ratiram was got conducted, necessary memos were drawn, statements of the witnesses were recorded, appellants were arrested and on completion of investigation, charge-sheet was filed. In due course the case came up for trial before the Additional Sessions Judge (Fast-Track) Behror, District Alwar. Charges under Sections 447, 148, 323, 302 read with 149, IPC were framed against all the appellants and appellant Bodan was also additionally charge sheeted for the offence under Section 4/25 of the Arms Act. The appellants pleaded not guilty to the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313, Cr.P.C., the appellants claimed innocence and also stated that the appellant Shishram was ill in Delhi, the deceased Ratiram was sick and extremely old and that Prabhati had purchased field from Amar Singh and a false case was lodged so as to forcibly take possession of the said field. Three witnesses were examined in defence. Learned trial Judge on hearing final submissions, convicted and sentenced the appellants as indicated above. 4. We have heard learned counsel for the appellants, learned Public Prosecutor for the State, learned counsel for the complainant and with their assistance scanned the material on record. 5. Death of Rati Ram was indisputably homicidal in nature. As per Post Mortem Report (Ex.P6) following ante mortem injuries were found on dead body :- (1) Abrasion 3 cm x 1.5 cm on left iliac crest (2) Abrasion 2 cm x 2 cm on left scapular refix region. (3) Abrasion 3 cm x 2 cm on mid scapular region. Fracture of Left 7, 8, 9, 10th ribs Fracture of Rt. (3) Abrasion 3 cm x 2 cm on mid scapular region. Fracture of Left 7, 8, 9, 10th ribs Fracture of Rt. 8th 9th and 10th rib. In the opinion of doctor the cause of death was because of internal haemorrhage as a result of damage to liver and lungs leading to shock and death. 6. On reappraisal of the evidence adduced by the prosecution it is revealed that the prosecution has examined as many as 11 eye-witnesses to the occurrence. Out of them P.W.4 Mst. Umesh, P.W.9 Jagdish and P.W.23 Ram Singh are injured witnesses while P.W.5 Dharamveer is informant. Out of the remaining seven eye-witnesses, namely, P.W.2 Hoshiyar Singh, P.W.3 Jai Singh, P.W.6 Rohtash, P.W.7 Ramanand, P.W. 10 Ram Singh s/o Sardar Singh, P.W. 17 Babu Lal, P.W. 20 Deep Chand, two witnesses namely P.W. 6 Rohtash and P.W. 7 Ramanand have been declared hostile as they have denied to have witnessed the incident. P.W. 5 Dharamveer, who is son of deceased Ratiram has deposed that on the day of occurrence, he along with his father Rati Ram, his cousin Mool Chand and Jagdish were at their residence. It was 7 in the morning, when appellant Sheesh Ram and Pradeep came to their residence and informed his father that they are going to plough his land (Rati Ram's land) and challenged him to do any thing he linked. Then his father stated that he had obtained a stay order and they could not plough it. Then his father proceed to the field following them. He along with his brother also went there. Accused Pradeep, Sheesh Ram, Prabhati, Nand Ram, Pramod, Vishambhar, Bodan, Prahlad, Mahendra, Roop Chand, Subhash s/o Gilore, Subhash s/o Banwari had gathered there. Bodan and Prahlad had farsi while others were armed with lathies. Then Vishambhar, Prabhati and Sheesh Ram inflicted lathi blows to his father, as a result of which his father fell down. Then, Jagdish and Ram Singh came to save his father, they were also assailed by Bodan and Prahlad with Farsi and Mahendra and Subhash with lathies. Subhash s/o Gilore and Roop Chand s/o Banwari inflicted lathi blows on the person of Ram Singh. When Mst. Umesh came to rescue, she was also inflicted lathi blows by Sheesh Ram. Then, Jagdish and Ram Singh came to save his father, they were also assailed by Bodan and Prahlad with Farsi and Mahendra and Subhash with lathies. Subhash s/o Gilore and Roop Chand s/o Banwari inflicted lathi blows on the person of Ram Singh. When Mst. Umesh came to rescue, she was also inflicted lathi blows by Sheesh Ram. A blue coloured Sonalika Tractor was also standing there with Pramod and Nand Ram sitting on the mud-guard while Pradeep was on driver's seat. That tractor was brought from the house of Prabhati and went in the Northern Side and his father Rati Ram was run over crossing his left thigh, chest and right shoulder as a result of which his father died on the spot. The testimony of this witness is corroborated by the injured witness Mst. Umesh. She has also deposed that she went to the place of occurrence on hearing the noises of quarrel. She saw Prabhati, Vishambhar, Sheeshram, Pramod, Pradeep, Nandram, Prahlad, Bodan Ram, Subhash, Roop Chand, Subhash s/o Gilore armed with lathies and farsies causing injuries to her grand father. Her grand-father fell down and was run over by the tractor. Pradeep was on driver's seat while Pramod and Nandram were sitting on the mud-guard. She also deposed that the accused appellants also inflicted injuries on her right hand and his father Ram Singh P.W. 3 and uncle P.W. 9 Jagdish. P.W. 9 Jagdish is also an injured witness who has also corroborated the prosecution story and deposed that Ratiram was run-over by tractor as a result of which he died on the spot. He further deposed that Gordhan and Prahlad also inflicted injuries on his head from the blunt side of farsi when he went to save his uncle. P.W. 23 Ram Singh has also corroborated the prosecution case and deposed that Rati Ram was run over by tractor driven by Pradeep while Nand Ram and Pramod were sitting on the mud guard. He deposed that he himself was assailed with lathi by Mahendra and Subhash. P.W. 23 Ram Singh has also corroborated the prosecution case and deposed that Rati Ram was run over by tractor driven by Pradeep while Nand Ram and Pramod were sitting on the mud guard. He deposed that he himself was assailed with lathi by Mahendra and Subhash. P.W. 2 Hoshiyar Singh, P.W. 3 Jai Singh, P.W. 10 Ram Singh s/o Sardar Singh, P.W. 17 Babu Lal and P.W. 20 Deep Chand are eye-witness of the occurrence and they have deposed that they saw the appellants in the field and Rati Ram deceased was run over by tractor, which was driven by Pradeep and rest of the accused appellants were armed with lathies and farsies. The fact that P.W. 9 Jagdish, P.W. 4 Mst. Umesh, and P.W. 23 Ram Singh were injured witnesses and P.W. 1 Dr. Veer Singh Yadav had examined the injuries sustained by them. 7. P.W. 1 Dr. Veer Singh Yadav deposed that Rati Ram deceased was examined by him on the date of incident at 1.30 p.m. and he found three external injuries which were ante mortem in nature. However, he found fracture of left 7, 8, 9 and 10th ribs and fracture of rt. 8th, 9th and 10th ribs of the deceased and rupture of pleurae, lungs, lever. The cause of death was haemorrhage as well as the damage caused to lever and lungs. According to him all these injuries could have been caused due to strike by a tractor but in case of run over by the tractor, it could cause laceration or crush. On cross-examination he admitted that the injuries caused to the deceased could be caused by push of the tractor but in that case if the person pushed goes back then all these fractures are not possible. He has also admitted to the suggestion that as there was no crush or laceration, he could not say whether the deceased Rati Ram was run over by the tractor. On being questioned by the Court this witness deposed that if the surface is sandy and one is ran over by the front wheel of the tractor, it is possible that the internal injuries found on the person of deceased could be caused without there being corresponding external injuries. 8. On being questioned by the Court this witness deposed that if the surface is sandy and one is ran over by the front wheel of the tractor, it is possible that the internal injuries found on the person of deceased could be caused without there being corresponding external injuries. 8. It has been argued on behalf of the appellant that the deceased Ratiram was not run over by the tractor as the deceased did not sustain any corresponding crush or lacerated injury. This argument on behalf of the appellants is not of much avail as the deceased Ratiram was run over by the front wheels of the tractor which were small and lighter in weight and as such the corresponding internal injuries found by the doctor corroborates the ocular evidence on the point that the deceased was run over by the front wheel of the tractor. 9. From the evidence adduced by the prosecution as well as by the defence, it is revealed that the appellant Prabhati had purchased 1/3rd share of Amar Singh in the land bearing Khasra Nos. 929, 930 and 931 while other 1/3rd belonged to Ghasi Ram and his brother Rati Ram and remaining 1/3rd belonged to Kanwar Singh. It has also been revealed that though there was no partition but they had possession over three separate portions bearing Khasra Nos. 929, 930 and 931. Khasra No. 929 was in possession of Amar Singh, while Khasra No. 931 was in possession of Gheesa Ram and Ratiram and Khasra No. 928 was in possession of Kanwar Singh. After the aforesaid sale deed in favour of appellant Prabhati, he insisted upon to hand over 1/3rd share of the whole land as Khasra No. 929 was less in area than the other two shares. Therefore, a suit (Ex.D.26) was instituted by Ghasi Ram and Kanwar Singh in the Revenue Court, Behror, with a prayer that appellant Prabhati be restrained from taking forcible possession of the whole land on the pretext of there being joint khata of all there khasras. The occurrence took place in the field of deceased Rati Ram and Ghasi Ram as shown in the site plan Ex.P. 11 while the portion of the field allegedly sold to appellant Prabhati by Amar Singh has been shown in the eastern side of the place of occurrence. The occurrence took place in the field of deceased Rati Ram and Ghasi Ram as shown in the site plan Ex.P. 11 while the portion of the field allegedly sold to appellant Prabhati by Amar Singh has been shown in the eastern side of the place of occurrence. The aforesaid copy of the suit filed in the Revenue Court has been placed on record on behalf of the appellants and hence the state of affairs that existed between the parties stand almost admitted. In view of this position, there is nothing on record to infer that the instant case was lodged so as to forcibly dispossess Prabhati from the portion of the field sold to him by Amar Singh as pleaded in the explanation under Section 313, Cr.P.C. by the appellants. 10. On analyzing the evidence at the trial by yardstick of probabilities and its intrinsic worth, we find that the appellant party had gone to the field armed with lathies while the tractor driven by the accused-appellant Pradeep Kumar came later with two appellants sitting on the mudguard were armed with lathies. It has also been revealed that the tractor was damaged by lathi blows etc. as evident from the recovery memo of the tractor, therefore, in view of the fact situation that existed it could not be said that the tractor was primarily brought there to be used to crush deceased Rati Ram and thus all the appellants cannot be said to have shared any such common object. The internal injuries found on the person of deceased Rati Ram were caused due to run over by the front small wheels of the tractor which were lighter in weight and as such rear wheels were not used so as to cause crush or laceration to the deceased. Thus the appellant Pradeep had no intention to cause death but he can at the most be attributed with the knowledge that running over the deceased with front wheels is likely to cause death of deceased Rati Ram. Thus the act of Pradeep Kumar does not travel beyond Section 304, Part II, IPC. Therefore, we find Pradeep Kumar guilty for the offence under Section 304, Part II, IPC only. Thus the act of Pradeep Kumar does not travel beyond Section 304, Part II, IPC. Therefore, we find Pradeep Kumar guilty for the offence under Section 304, Part II, IPC only. We also find that it is not established that the appellants Pramod, Nand Ram, Subhash Chand, Prahlad, Mahendra and Bodan were members of unlawful assembly and their common object was to kill Rati Ram and as such the possibility of their over implication cannot be ruled out and they are entitled to be given benefit of doubt. The evidence against the appellants Prabhati Lal, Sheesh Ram and Vishambhar Dayal, is however, consistent with regard to their individual act of causing simple hurt to the deceased Rati Ram and as such they are found guilty for the offence under Section 323, IPC while they are entitled to benefit of doubt for the rest of the offences they have been charged. 11. For these reasons, we dispose of instant matter in the following terms :- (i) We allow the appeal of appellants Pramod, Nand Ram, Subhash Chand, Prahlad, Mahendra and Bodan and acquit them of all the charges. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Pradeep Kumar and instead of Section 302 we convict him under Section 304, Part II, IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than five years and ten months, the ends of justice would be served in sentencing him to the period already undergone by him in confinement. We however acquit him of the charges under Sections 148, 323/149 and 447, IPC. Appellants Pradeep Kumar, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) We partly allow the appeal of appellants Prabhati Lal, Sheesh Ram and Vishambhar Dayal and instead of Section 302/149 we convict each of them under Section 323, IPC and sentence them to suffer imprisonment for six months. We however acquit them of the charges under Sections 148 and 447, IPC. Since appellants Prabhati Lal, Sheesh Ram and Vishambhar Dayal have already undergone confinement for a period of more than six months, they shall be set at liberty forthwith, if they are not required to be detained in any other case. We however acquit them of the charges under Sections 148 and 447, IPC. Since appellants Prabhati Lal, Sheesh Ram and Vishambhar Dayal have already undergone confinement for a period of more than six months, they shall be set at liberty forthwith, if they are not required to be detained in any other case. (iv) The impugned judgment of learned trial Court stands modified as indicated above. Order accordingly.