JUDGMENT 1. - The appellants were tried for committing offence under Section 302 read with Section 149, 148 and 341, IPC in respect of an incident alleged to have taken place on 17.3.1984 at about 7 a.m. in village Sinod in which one Gumana Ram received numerous injuries and ultimately died on 19.3.1984. All the accused were convicted after trial by the court of Addl. Sessions Judge, Nagaur in Criminal Case NO.50/84 vide judgment and order dated 6.4.1987. All the accused were sentenced to life imprisonment under Section 302/149 IPC with fine of Rs.500/- and in default thereof, three months R.I. All the appellants were further convicted and sentenced under Section 148, IPC and sentenced under Section 148, IPC and sentenced to undergo three months' R.I. and fine of Rs.200/- was imposed upon each of the appellants and in default thereof, to undergo one month's R.I., under Section 341,IPC, all the accused-appellants have been sentenced to undergo one month's R.I. and fine of Rs.100/- each and in default thereof, to undergo 15 days R.I. 2. The appellants have challenge the conviction and sentences passed against them by the trial court vide judgment and order dated 6.4.1987 by preferring this appeal. 3. As per the prosecution case, Gumana Ram s/o Salag Ram along with his brother Mohan Ram were going from village Sinod to their village houses in the Dhani on 17.3.1984 in the morning and when they reached near western side of the village, accused Harsukh, Prahalad,Balde, Narayan, Shanker, Sarwan, Om, Hadman,Goma Ram and others attacked with Farsa, Knife and lathis. Mohan immediately ran away and saved his life and reached to the village shouting that his brother Gumana Ram is being killed. About 10-15 persons from the village, along with one Hema Ram, rushed towards the place of incident but by the time they reached to the place of incident, all the accused persons already ran away as the accused persons believed that Gumana Ram has already died. The villagers, including Hema Ram, found Gumana Ram lying with several injuries of knife etc. He was bleeding and his one leg was already cut. The villagers, including Hema Ram, found Gumana Ram lying with several injuries of knife etc. He was bleeding and his one leg was already cut. The victim Gumana Ram was not in senses.The villagers including Hema Ram took Gumana Ram for treatment to Nagaur but condition of Gumana Ram was too serious, therefore, the doctor at Nagaur referred the matter to Jodhpur Hospital, upon which Guramana Ram's brother Mohan Ram with others took Gumana Ram to Jodhpur Hospital in a jeep. Subsequently, Gumana Ram died. FIR was lodged by Hema Ram s/o Mangala Ram r/o Sinod, who according to the prosecution case, reached on the spot when he got the information of attack on Gumana Ram along with other villagers, when Gumana Ram's brother Mohan Ram came shouting in village that his brother is being killed. In the FIR, Hema Ram mentioned that there was old enmity between Gumana Ram with Baldeva Ram and Harsukh Ram since last many years. The incident took place in the morning at 7 a.m. in the village Sinod and the victim Gumana Ram was taken to the Hospital at Nagaur where he was examined on requisition sent by the Police Station, Nagaur at 8.30 a.m. The FIR was lodged in the Police Station, Khinvsar of District Nagaur in the afternoon at 4 p.m. and the case was registered under Sections 147, 149, 148, 341 and 307 IPC by the SHO, Police Station, Khinvsar. After investigation, charge-sheet was submitted and charges were framed against the accused-appellants by the trial court which were denied by the appellants and they sought trial. 4. The prosecution examined PW-1 Meth Ram, PW-2 Hardeen, PW-3 Mala Ram, PW-4 Hema Ram, PW-5 Ram Pal, PW-6 Mohan Ram, PW-7 Bhura Ram, PW-8 Kailash Ram, PW-9 Nar Singh Ram, PW-10 Devi Singh, PW-11 Parsa Ram, PW-12 Bhikh Singh, PW-13 Dr. Vijay Singh, PW-15 Sukhdeo Chand, PW-16 Dr. Dharmendra Sharma and PW-17 Hukam Singh and produced Injury Report (Ex.21) of Gumana Ram given by the Medical Jurist from the Government Hospital, Nagaur and Post-mortem Report (Ex.P.22), FSL Report (Ex.P.7) and Recovery Memo of Knife (Ex.P.4) and other relevant documents. All the nine accused persons were convicted and sentenced as aforesaid. 5. The injuries which were found on the body of deceased Gumana Ram by the Medical Jurist, Government Hospital, Nagaur were as under:- "1. All the nine accused persons were convicted and sentenced as aforesaid. 5. The injuries which were found on the body of deceased Gumana Ram by the Medical Jurist, Government Hospital, Nagaur were as under:- "1. An incised wound 2 cm x 0.5 cm x bone deep on the left side of forehead above the lateral part of left eye-brow, 2. A lacerated would 3 cm x 0.5 cms x muscle deep on left parietal region on scalp. 3. A lacerated would 6 cm x 0.5 cm x muscle deep on parieto occipital half of scalp. 4. A lacerated wound 1.5 cm x 0.2 cm x skin deep on the right side of root of nose. 5. A stab would 1.5 cm x 0.5 cm on the infromammary region of Rt. Side of chest Transverse Air is coming from wound, Edges are clean cut and almost parallel but slight, curved to each other and have sharp on its at two extremities. 6. A stab wound 1.5 cm x 0.4 cm on the right lateral side of chest wall. in scapular region Edges are similar to injury No.5. 7. A lacerated wound 1.5 cm x 0.2 cm x muscle deep on rt. Medial mallelous. 8. A lacerated would 2 cm x 0.5 cm x muscle deep on the back of upper part of rt.thigh. 9. A stab would 1.5 cm x 0.4 cm on the rt. Inter scapular region of back all similar to injury no.5. 10. A lacerated would 1cm x 0.2 cm x skin deep on Lt.post Auricular region of scalp. 11. A brusie 10cm x 2 cm on the lateral side of left leg in upper part. 12. A lacerated would 1 cmx 0.2 cm x skin deep on the middle of frontal of Lt.leg. 13. A lacerated would 4 cmx 0.7 cm.muscle deep on the lower part of front of Lt.leg. 14. Three lacerated would 0.5 cm x 0.5 cm x muscle deep on the lower part of front of left leg." 6. The injuries on the body of Gumana Ram recorded in the Post-mortem Report are as under:- "1. Stitched would 4 cm long with 5 stitches placed 2- 1/2 cm below Rt.nipple Horizontal in nature on opening the margins are clean cut placed bet. 4th & 5th inter castal space cavity deep in intercostal space the size is 2 x 1cm x cavity deep. 2. Stitched would 4 cm long with 5 stitches placed 2- 1/2 cm below Rt.nipple Horizontal in nature on opening the margins are clean cut placed bet. 4th & 5th inter castal space cavity deep in intercostal space the size is 2 x 1cm x cavity deep. 2. Stitched would 2 1/2 cm long with 3 stitches on the Lat.end of Lt.eye brow on opening it is muscle deep. 3. Stitched lac.would 3 cm long 4 stitches on the Lt.Lat.parietal region vertically placed. 4. Stitched Lac.would 2 1/2 cm long 3 stitches on the occipital region. vertically placed. 5. Stitched Lac. Wound 1 cm long vertical over the Rt.side of root of nose, having one stick. 6. Stitched incised would 1 cm long on the Rt.mid scapular region vertically placed having one stick. 7. Stitched incised would 2 1/2 cm long on the Rt.lat. Asp. F chest long posterior 20 cm above iliac crest Horizontal in nature. Het.6th and 7th rib with fracture of 7th rib. On opening margins are clean cut. 8. Stitched incised would horizontal 6 cm long with 6 stitches just below Lt.axilla curved in nature. 9. Compound Lac.wound 2x1 cmx bone deep with fracture of both leg bones at its junction with middle 3rd and long 3rd on its antro-lat.-asp." 7. The cause of death given in the Post-mortem Report is as under:- "The cause of death is shock and haemorrhage as a result of brain injuries & others injuries as mentioned in this PM report which are ante-mortem in nature." 8. The learned counsel for the appellants vehemently submitted that all the accused-appellants are from one family and they have been falsely implicated in this case due to old enmity. Admittedly, there is rivalry between the complainant party and the accused-appellant's family which is clear from the facts mentioned in the FIR itself and which is also proved from the prosecution evidence itself. The story put-forward by the prosecution is proved to be concocted story from the prosecution evidence itself. The learned counsel for the appellants vehemently submitted that as per prosecution case, the incident took place in the morning at 7 a.m. in the village Sinod and as per the prosecution case, two real brothers Gumana Ram and Mohan Ram were going together and only one brother Gumana Ram alone was attacked by as many as 12 persons. The learned counsel for the appellants vehemently submitted that as per prosecution case, the incident took place in the morning at 7 a.m. in the village Sinod and as per the prosecution case, two real brothers Gumana Ram and Mohan Ram were going together and only one brother Gumana Ram alone was attacked by as many as 12 persons. There is no explanation that in a case of rivalry between two families and 12 armed persons attacked then how Mohan Ram could have escaped without suffering a single injury? How assailants will leave one person; only to keep one witness who can depose against them. Learned counsel submitted that Mohan Ram is a planted witness, he did not saw who attacked upon Gumana Ram. Gumana Ram's brother Mohan Ram who was with Gumana Ram at the time of incident, did not choose to lodge the FIR and the FIR has been lodged by one Hema Ram, that too in the Police Station, Khinvsar inspite of the fact that before reaching to the Police Station, Khinvsar, the information was given at the Police Station, Nagaur, which is evident from the statement of the prosecution's own witness PW-14 Dr. Vijay Singh Ghodawat, Medical Jurist of the Government Hospital, Nagaur, who stated on oath that he examined victim Gumana Ram on requisition sent by the Police Station, Nagaur on 17.3.1984. Further from the injury report dated 17.3.1984 (Ex.P.21), the statement of Medical Jurist Dr.Vijay Singh (PW-14) is fully corroborated and, therefore, in fact a report of happening of cognizable offence was already submitted in the Police Station, Nagaur and that report alone can be treated to be FIR. Said FIR has been suppressed by the prosecution and the complainant party deliberately, after full deliberation, concocted the story to implicat all the appellants in this false criminal case, otherwise there was no reason for not producing the information given the Police Station, Nagaur about commission of cognizable offence, which may have the names of real assailants. According to the learned counsel for the appellants, the FIR is information to the police about commission of cognizable offence and even if detail facts are not mentioned in the FIR nor names of the accused have been disclosed even then that report alone can be FIR and the information submitted in the Police Station, Khinvsar cannot be considered to be First Information Report. 9. 9. The learned counsel for the appellants further vehemently submitted that strangely the doctor at Nagaur who examined Gumana Ram immediately after the incident, at 8.30 a.m., i.e. just after half an hour of the incident, noticed as many as 14 injuries on the body of Gumana Ram. Those 14 injuries were noticed by the Medical Jurist at Nagaur when he certified that he could not examine the patient thoroughly because of low general condition of the patient. Contrary to above medical report, in Post-mortem report, there is mention of only 9 injuries. It is also submitted that the convicts are nine persons, therefore, one injury can be attributed to one accused and in that situation, the prosecution case that there were 12 aggressors, is a false plea and if there were 9 or even 14 injuries on the body of the victim Gumana Ram and inflicted by 9 or 12 persons, then it could have taken time of less than a minute only. In that situation, the witness Hardeen (PW-2) is a planted witness who alleged to have reached on the site of incident when he saw Gumana Ram's brother Mohan Ram running shouting that his brother is being killed. According to the learned counsel for the appellant, if one of the appellants inflicted one injury then in such a short period, Hardeen could not have reached to the site before the aggressors would have run away. In fact, if Mohan Ram saw the incident of attack upon Gumana Ram then Hardeen could not have see it and if Hardeen saw the incident then Mohan Ram's statement that he saw beating of Gumana Ram is false. 10. It is also submitted that the conduct of PW-6 Mohan Ram, brother of deceased Gumana Ram as projected and shown by the prosecution, ultimately demonstrates that he was not present when Gumana Ram was killed. It is strange that PW-6 Mohan Ram, brother of deceased Gumana Ram, states that he saw the 12 aggressors coming with Farsi, Knife and Lathis. They attacked upon Gumana Ram and witness Mohan Ram ran away and while running he saw back also. When he was running, he saw witness PW-2 Hardeen who was coming back after easing. Mohan Ram told Hardeen that Gumana Ram is being beaten. Then he reached to his house and there number of persons already gathered. They attacked upon Gumana Ram and witness Mohan Ram ran away and while running he saw back also. When he was running, he saw witness PW-2 Hardeen who was coming back after easing. Mohan Ram told Hardeen that Gumana Ram is being beaten. Then he reached to his house and there number of persons already gathered. Witness Mohan Ram told full story to all, i.e., to Rampal, Kailash Malha, Nazir, Hema and Lassa. Mohan Ram did not disclose the names of assailants at that time as Hema Ram stated that Mohan Ram gave names of assailants at Khinvsar at 12.00 AM. They alongwith Mohan Ram ran towards the place of incident and when they reached there the accused already left the place. They found that witness PW-2 Hardeen was trying to lift the Gumana Ram so as to put him in sitting position. When they were bringing Gumana Ram to Jodhpur PW-4 Hema Ram was dropped down at village Khinvsar where he lodged the FIR (Ex.P/9). As per Hema Ram, who lodged the FIR at Khinvsar Police Station at Khinvsar Mohan Ram gave him the names of aggressors accused. He stated that they reached Khinvsar at 12.00 AM. Mohan Ram did not disclose the names of attackers for about 5 hours to anybody also suggest that allegations against appellant has been levelled after thought full consideration otherwise there was no reason for Mohan Ram to hid the names of aggressors for such a long period. 11. Learned counsel for the appellants vehemently submitted that due to old rivalry between the appellants' family and victims' family, after thoughtful consideration, names of appellants were given in allege First Information Report (Ex.P/9), which was given after 9 hours from the time of incident and which was submitted in Police Station Khinvsar and report Ex.P/9 lodged at Khinvsar Police Station is not the First Information Report as admittedly First Information Report was given at Police Station Nagaur, who in turn issued requisition to the Government Hospital, Nagaur for medical examination of victim Gumana Ram and where Gumana Ram was in fact, examined by PW-14 Dr. Vijay Singh and prosecution submitted the injury report given by said Dr. Vijay Singh as Ex.P/21. Vijay Singh and prosecution submitted the injury report given by said Dr. Vijay Singh as Ex.P/21. The witness PW-4 Hema Ram who lodged the FIR at Khinvsar Police Station and the witness PW-2 Hardeen are planted witnesses and have not seen the aggressors nor they had knowledge who were the aggressors. The witness PW-4 Hema admittedly is not eye witness who in his statement clearly stated that brother of deceased Gumana Ram namely Mohan Ram told Hema Ram the names of aggressors and he did so after 5 hours from the time of incident and after travelling to Khinvsar and before that those names were not disclosed by Mohan Ram. Therefore, all the names of the accused in the FIR are on the basis of what has been told by Mohan Ram to Hema Ram. Therefore, mentioning of names of appellants in FIR lodged at Khinvsar is not from a person who saw the incident. As per prosecution case, Mohan Ram shouted that Gumana Ram is being beaten and it was heard by said Hardeen, who was returning after morning easing. He went on spot and in that situation, according to the witness Hardeen, he saw 12 persons beating Gumana Ram. He also gave name of, interestingly 9 persons - appellants and was not knowing 3 other persons exactly like Mohan Ram and that cannot be co-incidence. The witness Hardeen PW-2 stated that he saw knife in the hands of Narayan and he did not state which weapon was with which accused. He even stated that he was seen by the accused but the accused after giving him threat left the place of incident. 12. It is also submitted that there is no explanation how 14 injuries which were found by doctor at Nagaur reduced to 9 injuries when postmortem was conducted by the doctors at Jodhpur. It is also submitted that police could recover one knife and one Tipai from accused Narayan and Human respectively and there is no recovery from any other accused. Learned counsel for the appellant seriously questioned the above recoveries also. It is also submitted that police could recover one knife and one Tipai from accused Narayan and Human respectively and there is no recovery from any other accused. Learned counsel for the appellant seriously questioned the above recoveries also. It is also submitted that witness Hardeen in his statements in the court below stated that when he tried to lift Gumana Ram, Gumana Ram's cloths were full of blood and blood was oozing out from the body of Gumana Ram, in that situation, there would have been blood stain on the cloths of Hardeen and also on the cloths of other persons, but that is not the position in the present case, which makes presence of all the witnesses on spot doubtful. 13. It is also submitted that if Hardeen might have seen the incident then he would have shown the site and the investigating officer would have prepared the site inspection report Ex.P/2 and P/3 with the assistance of PW-2 Hardeen whereas PW-4 is the person, who has shown the site of incident to the investigating officer and Hardeen has been shown as witness to the report and it is settled law that it is not necessary that witness to any report should know the contents of the report itself. 14. Learned Public Prosecutor vehemently submitted that the appellants-accused mercilessly killed the victim Gumana Ram due to old enmity and prosecution proved its case by cogent evidence oral as well as documentary and the contradictions pointed out by learned counsel for the appellant are insignificant in view of the fact that in cross-examination none of the witnesses credibility has been effected in any manner. It is submitted that since Gumana Ram's condition was critical, therefore, he was taken to hospital at Nagaur and doctor who examined Gumana Ram in his report clearly stated that the said report Ex.P/21 is a provisional report only and the victim has not been thoroughly examined by the doctor and in view of the above if there is some contradiction in two injury reports Ex.P/21 and injury shown in postmortem report dated 19th March, 2004 (Ex.P/22), the postmortem report cannot be ignored. It is submitted that when Mohan Ram saw attackers in large number and coming towards them and could run away from the spot without suffering any injury merely on this ground, his testimony cannot be discarded, which find support from the statements of Hardeen who first heard Mohan Ram shouting and in view of the statement of other witnesses coupled with the facts that his brother Gumana Ram suffered serious injuries. 15. We considered the submissions of learned counsel for the parties and perused the record also. 16. Firstly, we do not find any explanation for not producing of report submitted to S.H.O., Nagaur and the requisition, which was sent to the Nagaur Hospital by the Police Station, Nagaur on the basis of which Medical Jurist PW-16 Dr. Dharmendra Sharma examined Gumana Ram and gave injury report Ex.P/20. The prosecution failed to explain what report was given to the Police Station at Nagaur in pursuance of which, the Police Station, Nagaur issued requisition to the Medical Jurist. It is relevant because of the reason that unless the concerned person at Police Station, Nagaur would have been informed about some incident of causing injury, no requisition could have been issued for examination of injured person by Medial Jurist. Admittedly, Ex.P/21 - injury report given by the Medial Jurist is not on any private request as is evident from the Ex.P/21 wherein request of SHO, Police Station, Nagaur is written. That causes serious doubt about the prosecution case because of the further reason that the FIR was lodged at Khinvsar Police Station after delay of 9 hours and at Kninvsar where according to the witness PW-4 Hema Ram, the victim alongwith other persons reached in the noon at 12.00 AM and by that time according to PW-4 Hema Ram he was not told by Mohan Ram who were attackers and Mohan Ram told him names of the attackers only when he dropped down at Khinvsar, which is about 5 hours after the incident. Further the informant Hema Ram reached to the Police Station at 12.00 AM, but lodged written FIR only at about 4.00 PM and the explanation given by Hema Ram for not lodging of FIR by SHO, Police Station, Khinvsar on the plea that he should give written report, is virtually no explanation and further, the FIR, which was submitted by Hema Ram Ex.P/9 is written report and explanation given by Hema Ram for submitting the written FIR when he was illiterate also is not satisfactory and the possibility of lodging FIR at 4.00 PM at Khinvsar Police Station after delay of about 4 hours could have been the reason and it may have been used for framing the story. In the background of facts that the SHO, Nagaur was informed for the commission of offence, but the report which was submitted to him has not been produced by the prosecution and, thereafter, after delay of about 8 hours, FIR was lodged taking 4 hours in recording the FIR from the time of complainant's reaching to the Police Station even at Khinvsar, it is unsafe to give much credence to the FIR Ex.P/9 and it cannot be ruled out that entire time taken in reporting the matter to Police for investigation under Section 157 Cr.P.C. was used for forming the story by the complainant. 17. As per prosecution case 12 persons attacked when Gumana Ram and Mohan Ram both were together. Mohan Ram, with whom also there was rivalry of the appellants, how he could have escaped without suffering any injury, causes serious doubt about his presence with Gumana Ram when he was attacked. In that situation Hardeen's reaching on place of incident cannot be believed as according to Mohan Ram, Hardeen reached on spot after knowing about Goma Ram's beating from Mohan Ram, which itself is unbelievable. For inflicting 9 injuries on the body of Gumana Ram 12 aggressors or even 9 accused would not have taken so much time that Gumana Ram's brother Mohan Ram could have run shouting about beating of his brother and could have reached to the place where Hardeen was there and in that short period Hardeen could have reached to the place of incident so as to see the beating by accused persons to Gumana Ram. Hardeen stated that Gumana Ram's cloths were full of blood and blood was coming out from the body of Gumana Ram then in that situation, if Hardeen would have supported Gumana Ram and helped Gumana Ram in coming to sitting position then Hardeen's cloths would also have been stained with the blood, but that is not the case of the prosecution. In the facts possibility of planting Mohan Ram and Hardeen cannot be ruled out rather appears to be more plausible. 18. The important witness Mohan Ram is real brother of deceased Gumana Ram. He in his statements admitted that there is rivalry between the accused party and Mohan Ram and Gumana Ram's family and one of the accused persons' father Ramdev lodged a criminal case against Mohan Ram and Gumana Ram and other persons for breaking the leg of appellant Hanuman Das's father Ramdev. He also admitted that other cause of rivalry was due to political reason. Because of that enmity, injuries were inflicted by accused upon Gumana Ram. 19. As stated above, the presence of Mohan Ram and Hardeen on the place of incident at the relevant time is doubtful and further there is no reasonable explanation for not producing the copy of the information given to SHO, Police Station, Nagaur orally or in writing in pursuance of which victim Gumana Ram was examined by the Medical Jurist at Nagaur Hospital and delay in lodging FIR and late disclosure of names of accused may be due to reason of rivalry between the victims' family and appellants' family and possibility of falsely implicating the appellants by the complainant cannot be ruled out rather say, in the facts of the case, probability is more towards falsely implicating the appellants in this criminal case. The prosecution failed to explain serious discrepancies in two injury reports, one given by Medical Jurist, Government Hospital, Nagaur and another recorded in the postmortem report Ex.P/22. The prosecution failed to recover the weapon of offence from 7 accused persons and connect the accused with the injury caused to Gumana Ram. 20. The prosecution failed to explain serious discrepancies in two injury reports, one given by Medical Jurist, Government Hospital, Nagaur and another recorded in the postmortem report Ex.P/22. The prosecution failed to recover the weapon of offence from 7 accused persons and connect the accused with the injury caused to Gumana Ram. 20. In the site inspection report Ex.P/2 and the map spot 'x' has been identified as the place where Gumana Ram was beaten and the spot where accused remain hidden before they attacked on Gumana Ram whereas the persons who has shown the site namely Hema Ram had no knowledge of fact where the accused were hiding before they attacked upon Gumana Ram. The only witness who has knowledge from where and how aggressors came to attack Gumana Ram, was Mohan Ram alone and he was not present when site was inspected by the investigating officer. That makes the site inspection report also doubtful. 21. So far as charge under Section 149 IPC is concerned, since prosecution failed to establish that appellants-accused formed the unlawful assembly and any of the member of the unlawful assembly committed any offence, therefore, the conviction of the appellants Harsukh, Hadman, Narayan, Shanker, Shrawan, Prahlad, Baldeo,Om Prakash and Goma Ram cannot maintained and all the appellants are acquitted from the charge of committing offence under Section 302 read with Section 149 IPC. The prosecution failed to prove that Harsukh, Hadman, Narayan, Shanker, Shrawan, Prahlad, Baldeo,Om Prakash and Goma Ram are guilty of rioting armed with deadly weapon or used the weapon of offence to cause death and, therefore, the appellants are acquitted from the charge under Section 148 IPC and in view of the above discussions, the appellants are entitled to be acquitted from the offence under Section 341 IPC also. 22. Consequently, the appeal is allowed, the convictions of the appellants for committing offence under Section 302 read with Section 149, 148 and 341 IPC are set aside. The appellants are already enlarged on bail, therefore, their bails bonds are cancelled and they need not to surrender.Appeal allowed. *******