JUDGMENT 1. - Challenge in both these appeals is to the judgment dated October 23, 2001 of the learned Additional Sessions Judge, No. 1 (Fast Track) Kota, whereby accused appellants Shishupal Singh, Shyam Singh, Akheyaraj Singh, Govind Singh and Narpat Singh were convicted and sentenced as under; Shishupal Singh : U/s. 302/149 I PC : to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. U/s. 147 I PC : to suffer rigorous imprisonment for six months. Shyam Singh : U/s. 302/149 I PC : to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. U/s. 147 IPC: to suffer imprisonment for six months. Govind Singh U/s. 302/149 IPC : to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. U/s. 147 IPC: to suffer rigorous imprisonment for six months. Narpat Singh : U/s. 302/149 IPC: to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. U/s. 147 IPC: to suffer rigorous imprisonment for six months. Akheyraj Singh : U/s. 302 IPC : to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. U/s. 147 IPC: to suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently. 2. Briefly stated the prosecution case is that a written report was lodged by Daulatraj Singh R/o Sarola Haveli, Sripura, Kota on May 11, 2000 at 3.25 AM wherein he stated that there was enmity between his younger brother Himmat Raj Singh and Shishupal Singh R/o Village Padam for last few years on account of some dispute regarding money transactions. The said dispute was however resolved through mutual talks few days back and they resumed their relations of going to each others' house. On May 10, 2000 Dashrath Singh was invited on the birthday party of the son of Shishupal Singh in the evening. So, Dashrath Singh along with Udaibhan Singh and Birdi Lal Nai went to Shishupal Singh's house No. 3-M-1 Mahaveer Nagar Kota, on his motor-cycle at about 9-10 in the night. On May 10, 2000 Dashrath Singh was invited on the birthday party of the son of Shishupal Singh in the evening. So, Dashrath Singh along with Udaibhan Singh and Birdi Lal Nai went to Shishupal Singh's house No. 3-M-1 Mahaveer Nagar Kota, on his motor-cycle at about 9-10 in the night. There, as designed, Shishupal Singh, Shyam Singh, Narpat Singh, Akshya Raj Singh, Arun Singh and Govind were drinking at the roof top of the house then Dashrath Singh was made to put off his clothes and Akshyaraj Singh thrust broken glass bottle on his back and Udaibhan Singh was also attacked. Udaibhan Singh and Birdhi Lal Nai who had accompanied Dashrath Singh immediately came down the stairs so as to save themselves. Then in no time, Shishupal Singh, Shyam Singh, Narpat Singh, Akshyaraj Singh, Govind Singh and Arun Singh threw down Dashrath Singh from the first floor roof top with the intention to kill him. Then they all came down and killed Dashrath Singh by striking him on head with big stones. This incident occurred at about 2.00 AM in the night which was seen by Udaibhan Singh and Birdi Lai Nai who narrated the incident to the informant at his residence at Sarola Ki Haveli before he went to lodge the report. On the basis of the report, a case u/s. 302, 147, 148 and 149 was registered and the investigation commenced. During the investigation, the autopsy on the dead body of deceased Dashrath was got conducted, necessary memos were drawn and after completing the investigation challan was filed. In due course, the case came up for trial before Additional Sessions Judge (Fast Track) Kota. Charges u/s. 147 and 302 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses and exhibited 19 documents. In explanation u/s. 313 Cr.RC., the appellants claimed innocence. The appellants Shyam Singh and Shishupal Singh also explained that Dashrath Singh had consumed liquor in excess, he had put off his clothes and challenged to fight, so when Shyam Singh went to make him understand, he threw him down from the roof top and then Shishupal Singh was also thrown and then Dashrath Singh himself fell down from the roof. In defence however 2 witnesses were examined. In defence however 2 witnesses were examined. On hearing final arguments, learned trial Judge convicted and sentenced the appellants as indicated herein above. 3. We have given our anxious consideration to the submissions advanced before us and carefully scrutinised the record. 4. The death of deceased Dashrath Singh was indisputably homicidal nature. As per the post mortem report of deceased Dashrath Singh, the following ante mortem injuries were found on his body : 1. Lacerated wound 11 x 11/2 cmx bone deep with clotted blood, placed vertically on Lt. Front-parietal regions. 2. Abrasion 3x2cm on Lt. side forehead. 3. Two abrasions of size 2x11/2 cm & 1x1 cm at centre of forehead. 4. Abrasion 3x1 cm on Lt. shoulder joint. 5. Multiple abrasions of size 2x1 cm to 1/4 x 1/4 cm on both knee joints anteriorly. 6. Lacerated wound 11/2 x 1/2 cm x skin deep with clotted blood on Lt. side back of chest upper part. 7. Two lacerated wounds of size 3x2 cm x muscle deep & 31/2 x 2 cm x muscle deep with gap of 1.5cm., on Lt. side back of chest. A glass piece present in the first wound, taken out & handed over to police person. Cause of death as per autopsy report was ante mortem head injury with injury to Lt. lung, which were found to be sufficient to cause death in ordinary course of nature. 5. On re-appraisal of the evidence led by the prosecution, it is revealed that the prosecution has examined two eye witnesses of the occurrence, namely Udaibhan Singh (PW 7) and Birdhi Lal Nai (PW. 20). According to the testimony of Udaibhan Singh (PW 7), the occurrence took place in the intervening night of May 10-11, 2000 and he along with Birdhi Lal Nai had gone along with deceased Dashrath Singh to attend the birth day party of appellant Shishupal Singh's son at his house situated at Mahaveer Nagar extension Scheme, Kota at about 9.00 PM in the night. The cock-tail party was arranged at the first floor roof top of the house of appellant Shishupal Singh. There, they had some drinks along with Shishupal Singh, Akheyraj Singh, Shyam Singh, Govind, Narpat Singh (appellants) and Arun Singh. The cock-tail party was arranged at the first floor roof top of the house of appellant Shishupal Singh. There, they had some drinks along with Shishupal Singh, Akheyraj Singh, Shyam Singh, Govind, Narpat Singh (appellants) and Arun Singh. In the night at about 1-1.30 AM, the appellants expressed their displeasure to the compromise which had taken place with the indulgence of Dashrath Singh between his brother and the appellants regarding certain money transaction. On this, the appellants started abusing and got up to assault Dashrath Singh. Akheyraj Singh then broke a glass bottle and thrust on the back of Dashrath Singh. They also tried to assault him and Birdhi Lal Nai so they came down the stairs and Dashrath Singh was thrown down from the roof by the aforesaid persons. Then all of them came down and picked stones lying in a nearby heap and caused injuries on the head of Dashrath Singh. Birdhi Lal Nai ran away from the place of occurrence. Then he (Udaibhan Singh-PW 7) informed Daulat Singh, elder brother of Dashrath Singh. Daulat Singh went to the police station along with Udaibhan Singh and lodged the report to the police. Birdhi Lal Nai(PW 20) has corroborated the testimony of Udaibhan Singh (PW 7) to the extent that he had gone along with Udaibhan Singh and Dashrath Singh to the house of Shishupal Singh on the occasion of birth day party of the son of Shishupal Singh and that a party was going on at the roof of the house of Shishupal Singh there an altercation took place, so he ran away from there out of fear and on next morning he came to know that Dashrath Singh was murdered and his funeral had taken place. 6. The fact of the birth day party of son of Shishupal Singh stands admitted by the appellants as Bheemraj Singh (DW 1) and Ravindra Singh (DW 2) have been examined on the point that Dashrath Singh was present in the party and he took too much liquor but they denied the presence of Udaibhan Singh (PW. 7) in the party. The defence has been led in support of what appellants Shishupal Singh and Shyam Singh stated in their explanation u/s. 313 Cr.PC. 7) in the party. The defence has been led in support of what appellants Shishupal Singh and Shyam Singh stated in their explanation u/s. 313 Cr.PC. wherein it is stated that deceased Dashrath Singh was in a state of intoxication and he put off his clothes except under-wear on his body, challenged to fight and then he threw appellant Shyam Singh from the roof top and when Shishupal Singh tried to make him understand, Shishupal Singh was also thrown from the roof top and then he himself fell down from the roof and died due to injuries sustained due to fall. With a view to support the defence version, the attention has been drawn towards statement of Dr. Rakesh Sharma (PW 14) who examined appellant Shyam Singh on 11.5.2000 and found swelling at his right shoulder and hips, one bruise 4x2 cm on his right arm and also an abrasion at the right side of the back on the front part measuring 5x3 cm. Likewise, Shishupal Singh was found to have sustained swelling on right side of the chest and one abrasion at the back of size 3x2 cm. In view of these injuries, it has been tried to show that they were thrown from the roof top by deceased Dashrath Singh and they sustained the said injuries. But the injuries do not appear to be serious enough which may indicate their fall from roof top as alleged. However, in view of the above defence on examining the evidence led by the prosecution, it is revealed that the presence of Udaibhan Singh (PW 7) at the time of occurrence cannot be denied as he was the person who first after the incident went to inform Daulatraj Singh, the elder brother of deceased Dashrath Singh about the incident. So, the report could be lodged hardly within an hour and half at the police station. The story unfolded in the report further lend confidence that it was the eyewitnesses account of Udaibhan Singh (PW 7) which was incorporated in the report. As noticed earlier, in the report it was stated that appellant Akheyraj Singh thrust a broken glass bottle on the back of deceased Dashrath Singh. This fact stands corroborated from the post mortem report (Ex.R 16) prepared by Dr. PC. Vyas (PW 13) as Dr. As noticed earlier, in the report it was stated that appellant Akheyraj Singh thrust a broken glass bottle on the back of deceased Dashrath Singh. This fact stands corroborated from the post mortem report (Ex.R 16) prepared by Dr. PC. Vyas (PW 13) as Dr. Vyas found two lacerated wounds on left side back of the chest, a glass piece was present which was recovered vide recovery memo (Ex.P 8) and the same as per the FSL report was found to match physically with the brown glass piece 'F-1' which was recovered vide recovery memo Ex.R 5 sealed in the packet marked 'F'. The testimony of Udaibhan Singh further corroborated from the fact that the role assigned to appellant Akheyraj Singh by him causing injury at the back of deceased Dashrath Singh by thrusting broken bottle on his back was further confirmed from the fact that on arrest of Akheyraj Singh on 11.5.2000 at 7.00 AM on the day of occurrence vide Ex.R 11 was found with shirt and pant stained with 'A' group of human blood vide FSL report Ex.P 14 which tallied with group of human blood of' deceased Dashrath Singh collected from the blood smeared hairs and stone recovered vide Ex.R 5 from the spot. 7. Having discussed vital features of the case, we find that the presence of Udaibhan Singh (PW 7) at the time of occurrence is proved beyond doubt and his testimony is found to be worth credence in view of its corroboration from the medical evidence and other evidence. The participation of Akheyraj Singh in the incident by causing fatal injury with the broken glass of bottle piercing back of deceased Dashrath Singh leading to the injures to the left lung which along with the head injury was found to be the cause of death of Dashrath Singh. Thus the specific role assigned to Akheyraj Singh in causing the death of deceased Dashrath Singh, goes to show that he had the requisite intention to cause the death of deceased Dashrath Singh. The evidence against the rest of the appellants on the point of throwing Dashrath Singh from the roof as well as causing injury on his head by stones after he was thrown on the ground is general in nature as it is not clear from the testimony of Udaibhan Singh (PW. The evidence against the rest of the appellants on the point of throwing Dashrath Singh from the roof as well as causing injury on his head by stones after he was thrown on the ground is general in nature as it is not clear from the testimony of Udaibhan Singh (PW. 7) as which one of the appellants played what act in throwing the deceased from the roof top and no specific injury has been assigned to the appellants by hitting with stones after he was thrown on the ground. Moreover, after the injury caused by broken glass bottle by appellant Akheyaraj Singh, Udaibhan Singh (PW. 7) and Birdhi Lal Nai (PW. 20) left the place through stairs so as to save themselves so they had little occasion to ascertain as to who else participated in what manner. There is no doubt that deceased Dashrath Singh and other appellants were present in the party at the occasion of birthday celebration of the son of appellant Shishupal Singh but it could not be proved that they were members of unlawful assembly and had assembled at the place of incident with common object and committed the offence in furtherance thereof. Therefore, in the facts and circumstances of the case, the possibility of over implication of the appellants other than Akheyaraj Singh is not ruled out. Thus, we find that prosecution has proved offence u/s. 302 I PC against appellant Akheyaraj Singh while offences u/s. 302/149 and 147 IPC against appellants Shishupal Singh, Shyam Singh, Govind Singh and Narpat Singh are not proved beyond doubt. 8. For these reasons, we dispose of instant appeals in the following terms : (i) Appeal preferred by appellant Akheyraj Singh being devoid of merits stands dismissed and his conviction and sentence under section 302 IPC are maintained. He however stands acquitted of the charge under section 147 IPC. (ii) We allow the appeals of appellants Shishupal Singh, Shyam Singh, Govind Singh and Narpat Singh and acquit them of the charges under Sections 147 and 302/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of trial court stands modified as indicated above. Appeal of a dismissed but that of others allowed. *******