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2011 DIGILAW 1536 (RAJ)

Sultan v. State of Rajasthan

2011-07-28

RAGHUVENDRA S.RATHORE, S.S.KOTHARI

body2011
Hon'ble KOTHARI, J.—Being aggrieved of the judgment dated 28.8.1982 passed by the learned Additional District and Sessions Judge, Gangapur City in Sessions Case No. 64/1981, the accused appellant Sultan has preferred this appeal under Section 374 Cr.P.C. The learned trial Court has convicted the accused appellant for the offences under Section 302 IPC and sentenced him for life imprisonment and a fine of Rs. 500/-, in default of which to further undergo six month's R.I.; for the offences under Section 302/149 IPC and sentenced for life imprisonment and a fine of Rs. 500/- in default of which to further undergo six months' R.I. and for the offence under Section 147 IPC and sentenced for six months' R.I. Further, he was convicted for the offences under Section 323/149 and sentenced for three months' S.I.; for the offences under Section 324/149 and sentenced for six months' S.I. and for the offences under Section 325/149 and sentenced for seven months' S.I. and a fine of Rs. 200/- in default of which to further undergo one months' S.I. All the sentences were ordered to run concurrently. 2. In the instant case, where the incident had taken place on 12.4.1978, in all 17 persons had been implicated and they faced trial for the offences, inter alia under Section 302/149 IPC. At the first instance, 11 persons were tried by the learned Court below in Sessions Case No. 39/1978/74/1978. The accused Ganga Sahai died during the trial and as such, proceeding against him was dropped. The trial against the remaining 10 persons was concluded with the judgment passed by the learned trial Court on 29.2.1980, whereby two persons namely Ramjilal and Magliya were acquitted of all the charges levelled against them and 7 persons were acquitted from the charges under Section 302 read with Section 149 IPC. However, they were convicted for the offences under Sections 147, 323, 324/149 and 325/149 IPC and the accused Thandiya was also convicted for the offence under Section 329 IPC. But the accused Raghuveer was convicted for the offences charges, including Section 302/149 IPC and sentenced for life imprisonment as well as the other periods in respect of the offences with which he was charged. All the sentences were to run concurrently. Consequently, the accused Raghuveer filed an appeal through jail (No. 136/1980). But the accused Raghuveer was convicted for the offences charges, including Section 302/149 IPC and sentenced for life imprisonment as well as the other periods in respect of the offences with which he was charged. All the sentences were to run concurrently. Consequently, the accused Raghuveer filed an appeal through jail (No. 136/1980). The remaining accused persons, who had been convicted and sentenced for the offences inter alia under Section 325/149 IPC, preferred an appeal before this Court (S.B. Criminal Appeal No. 149/1980). Thereafter, the accused Mohan Singh (Sessions Case No. 63/1981), Mangla, Ranglal and Sultan (Sessions Case No. 64/1981) and Ramcharan (Sessions Case No. 65/1981) were tried together by the learned Sessions Court. On conclusion of the trial and on passing of the judgment dated 28.8.1982, the accused Mangla, Ranglal and Ramcharan were acquitted of all the charges levelled against them. However, the accused Sultan was convicted and sentenced, as aforementioned. The accused Mohan Singh was also convicted and sentenced and therefore he preferred an appeal against the impugned judgment dated 28.8.1982 (No. 387/1982). However, the accused Mohan Singh son of Misra @ Mithiya died during the pendency of the appeal and therefore, the appeal filed by him was ordered to have been abated on 19.4.2011. The remaining accused Hazari also faced trial (Sessions Case No. 45/1988), which came to be concluded by the judgment dated 31.1.1991. The learned trial Court acquitted Hazari son of Punya of all the charges levelled against him. 3. Therefore, out of total seventeen accused persons against whom criminal cases were initiated in respect of the incident which had taken place on 12.4.1978, the accused Ganga Sahai expired during the trial and the accused Mohan Singh, though convicted by the trial Court, expired during the pendency of the appeal. Amongst the remaining accused persons, the accused Hazari, Mangla, Ranglal, Ramcharan, Ramjilal and Mangliya were acquitted of all the charges levelled against them and seven accused persons were acquitted of the charges under Section 302/149 IPC, by the trial Court. Ultimately Sultan, accused appellant in the present appeal, had been convicted for the offences, inter alia under Section 302 and 302/149 IPC. The accused Raghuveer was convicted for the offences under Section 302/149 IPC. He had preferred a separate appeal (No. 136/1980) which was also considered by us today and the same has been allowed. 4. Ultimately Sultan, accused appellant in the present appeal, had been convicted for the offences, inter alia under Section 302 and 302/149 IPC. The accused Raghuveer was convicted for the offences under Section 302/149 IPC. He had preferred a separate appeal (No. 136/1980) which was also considered by us today and the same has been allowed. 4. Briefly stated, the facts giving rise to the prosecution case are that on 12.4.1978, a report came to be lodged by Murari Lal Agarwal who was accompanied by Sarpanch Padam Chand. It is averred in the report that early in the morning at about 10.00 a.m., a group of persons armed with various weapons came in the market with the purpose of committing robbery. Further, it is alleged in the report that when such persons were sought to be checked by others present in the market, they started giving beating as a result if which Govind Sahai, Madan Singh, etc. received grievous injuries. It is also mentioned in the report that the list of the articles which had been robbed in the incident would be furnished subsequently. On the aforesaid report, a regular first information report came to be registered at Police Station Mundawar, District Sawai Madhopur for the offences under Sections 147, 148, 149, 307 and 380 IPC. Thereafter, the usual investigation commenced and the police, after reaching the place of incident, prepared the Naksha Mauka (Ex. P/2). They had also seized an amount of Rs. 1475/- (Ex. P/3). At the place of incident, Madan Lal Mahajan had handed over two lathis which are said to have been used at the time of incident and left behind by the accused (Ex. P/5). The injured Govind Sahai died on 12.4.1978 and thereafter, Panchayatnama (Ex. P.22) was prepared. After the arrest of the accused Raghuveer, a topidar gun was recovered. It was noted in the seizure memo that smell of gun powder was coming from the barrel. The licence of the gun was also recovered by the police. The injured Madan Lal, Ramji Lal, Ghasi Lal, Indra Chand, Murari Lal, Hukum Chand, Hari Om and Radha Mohan were taken to the hospital for medical examination and M.L.R.s (Ex. P/11 to Ex. P/18) were prepared. Postmortem of the deceased Govind Sahai was conducted and the report (Ex. P/19) was taken on record. 5. The injured Madan Lal, Ramji Lal, Ghasi Lal, Indra Chand, Murari Lal, Hukum Chand, Hari Om and Radha Mohan were taken to the hospital for medical examination and M.L.R.s (Ex. P/11 to Ex. P/18) were prepared. Postmortem of the deceased Govind Sahai was conducted and the report (Ex. P/19) was taken on record. 5. On conclusion of the investigation, the police filed challan before the concerning Magistrate for the offences under Sections 147, 323, 324, 302 and 302/149 IPC. The case was then committed to the Court of Sessions which was later transferred to the Court of Additional Sessions Judge, Gangapur City. The trial commenced by framing of charge against the accused persons on 19.2.1982, for the offences under Sections 147, 325, 325/149, 324, 324/149, 323, 323/149, 395, 302 and 302 and 302/149 IPC. The accused denied the charges and claimed for trial. The prosecution had, in support of its case, produced 13 witnesses which included the injured witnesses, eye-witnesses and the medical jurist. Later on, the statement of the accused persons were recorded under Section 313 Cr.P.C. wherein the accused denied the entire prosecution story. The accused Sultan had further stated that he was in the hospital at Bikaner from 6.4.1978 to 17.4.1978, undergoing treatment of Dr. R.C. Nagar. In support of the said statement, he had produced the certificate (Ex. D/7). Similarly, the accused Ranglal and Mangliya had stated that they had never been employed as Hali by Ramkaran. They themselves were having agricultural land measuring about 30 to 35 bighas. They had produced Ram Prasad as a witness in their defence. On conclusion of the trial and after hearing the parties, the learned trial Court pronounced the judgment on 28.8.1982 whereby it had acquitted the accused Mangla and Ranglal of all the charges levelled against them but convicted and sentenced Sultan as aforementioned. Hence, the present appeal filed by the accused Sultan has come before us for final hearing. 6. The learned counsel for the accused appellant, with his usual vehemence, has submitted that the impugned judgment passed by the learned trial Court is grossly illegal and erroneous which deserves to be quashed and set aside. Further, he has submitted that the findings arrived at by the learned trial Court is not based on the evidence produced by the prosecution before the trial Court, including the medical evidence. Further, he has submitted that the findings arrived at by the learned trial Court is not based on the evidence produced by the prosecution before the trial Court, including the medical evidence. It has been submitted by the learned counsel for the appellant that the learned trial court having convicted the accused Sultan for the offence under Section 302 as well as 302/149 IPC, itself goes to show that the conclusion arrived at by the trial court is uncertain and that the prosecution has also failed to prove its case beyond reasonable doubt for the alleged offence under Section 302 IPC. He has taken us through the medical evidence on record extensively, particularly the postmortem report (Ex.P/19) and the testimony of the medical jurist Dr. Brijendra Singh Rathore (PW.11). While elaborating his aforesaid submission, the learned counsel for the appellant has submitted that the postmortem report reveals three injuries on the body of the deceased Govind Sahai. Injury No. 1 and 2 were punctured wounds and it is the case of the prosecution itself that one of the accused had used a fire arm. Further, he has submitted that a careful consideration of the opinion of the medical jurist in respect of cause of death goes to show that injury No.3, a hematoma, was not the a cause of death of the deceased. He has submitted before us, after referring to the medical dictionary namely Taber's Cyclopedic Medical Dictionary, that hematoma is never an independent injury but a consequence of the injury caused to a person. It has also been submitted by the counsel for the appellant that in fact, hematoma referred to as injury No. 3 is nothing but a result of injury No. 1 and 2 which are punctured wounds on the scalp. The learned counsel for the appellant has also referred to the statement of the medical jurist Dr. Brijendra Singh Rathore (PW.11) wherein he had deposed that Hematoma injury No. 3 is not a result of the blunt object. Further, he had deposed that injury No. 1 and 2, which are punctured wounds could have been caused by fire arm as well as by a fuel wood with irregular margins, if thrown on the head from a height of four to six feet. Further, he had deposed that injury No. 1 and 2, which are punctured wounds could have been caused by fire arm as well as by a fuel wood with irregular margins, if thrown on the head from a height of four to six feet. To buttress his argument, the learned counsel for the appellant has also invited our attention to the statement of the son of the deceased, namely Radha Mohan (PW.10). After referring to his cross-examination, the learned counsel for the accused appellant has emphasised on the deposition made by the witness that the injury by a blunt object was inflicted by the accused Sultan on front side of the head of the deceased Govind Sahai. On the aforesaid premise, the learned counsel for the accused appellant had submitted that the learned trial court had erred in convicting the accused appellant for the offences under Section 302 IPC whereas the prosecution has failed to prove its case beyond reasonable doubt and a bare perusal of the aforesaid evidences goes to show that the accused Sultan has not committed the offence of murder of Govind Sahai. 7. In so far as the other offences alleged against the appellant Sultan are concerned, the learned counsel for the petitioner has submitted that there is no evidence to establish that an unlawful assembly was formed by the accused persons for commission of the crime. He has further submitted that from the finding arrived at by the learned court below in various trials held in respect of the same incident, the net conclusion is that as many as 13 persons were found not to have been involved in murder of Govind Sahai and were acquitted of the charges levelled against them. Above all, he has submitted that the accused Hazari, who was alleged to be one of the main accused in the present case, had been acquitted of all the charges levelled against him by the learned trial court, in Sessions Case No. 45/1988, by its order dated 31.1.1991. Hence, the learned counsel for the appellant has submitted that even otherwise, the offence under Section 149 IPC is not made out because the alleged unlawful assembly is not constituted of a total number of five or more persons. Hence, the learned counsel for the appellant has submitted that even otherwise, the offence under Section 149 IPC is not made out because the alleged unlawful assembly is not constituted of a total number of five or more persons. He has therefore submitted that the conviction awarded to the appellant Sultan under Section 302 as well as 302/149 IPC or any other offence with the aid of Section 149 IPC is neither established nor proved against him. In such view of the matter, the judgment passed by the learned trial Court deserves to be quashed and set aside and the accused appellant be acquitted of all the charges levelled against him. 8. The learned Public Prosecutor, on the other hand, has fully supported the judgment passed by the learned trial Court. He has submitted that even though some of the accused persons had been acquitted on conclusion of the trial, but the alleged offence against the accused Sultan has been established and proved by the prosecution beyond reasonable doubt. Further, he has submitted that the prosecution witnesses have clearly deposed that it was the accused Sultan who had inflicted one of the injuries on the head of the deceased Govind Sahai. The cause of the death of the deceased Govind Sahai was also the direct result of the injury inflicted by the present accused. He has submitted that taking into consideration the manner in which the incident had taken place, in the open market, in broad day light and various weapons with which about a dozen of persons had come for the purpose of committing robbery itself goes to show that they certainly had intention of committing the crime. It was during the incident that they had caused fatal injuries to Govind Sahai with whom they were having enmity, as is reflected from the testimony of the prosecution witnesses that the accused Ganga Sahai had, with open declaration asked the accused Sultan, Hazari and others to murder Govind Sahai as he was the root cause of the whole dispute. The learned Public Prosecutor has therefore submitted that the prosecution has succeeded in proving its case beyond reasonable doubt and there is no illegality or infirmity in the judgment passed by the learned trial Court which deserves to be affirmed by this Court. 9. The prosecution case is that an incident took place on 12.4.1978 at about 10.00 am. The learned Public Prosecutor has therefore submitted that the prosecution has succeeded in proving its case beyond reasonable doubt and there is no illegality or infirmity in the judgment passed by the learned trial Court which deserves to be affirmed by this Court. 9. The prosecution case is that an incident took place on 12.4.1978 at about 10.00 am. when 17 persons had come to the market shouting slogans to give beating. Those persons who tried to intercept and stop the accused, were given beating. Those persons who tried to intercept and stop the accused, were given beating. Further, it is the case of the prosecution that initially Madan Lal was given beating by the accused party and when Govind Sahai came at the scene of occurrence, he was also beaten by the accused persons who had ultimately died on account of the injuries sustained by him. After completion of investigation in the matter, the members of the accused party were brought to trial from time to time. The trial of the accused Raghuveer and ten others had started in the year 1978 and on conclusion of the same, the learned trial court, vide its judgment dated 29.2.1980, had acquitted all the persons except Raghuveer for the offences under Section 302/149 IPC. In other words, the learned trial Court had come to the conclusion that the accused persons neither had the intention to commit murder of Govind Sahai nor they had formed any unlawful assembly for that purpose. It is to be noted that Ganga Sahai had died during the course of trial and as such remaining 10 persons including Rahuveer had faced the trial in Sessions Case No. 39/78/74/78. Later on five other persons, who were alleged to have been involved in the incident of 12.4.1978, were also brought to trial before the learned trial Court (Sessions Case No. 63/81, 64/81 and 65/81) and they were Mohan Singh, Mangla, Ranglal, Sultan and Ramcharan. On conclusion of the trial and by passing of the judgment on 28.8.1982, the learned trial court had again held that no offence had been committed by the accused Mangla, Ranglal and Ramcharan. Consequently, these three persons were acquitted of all the charges levelled against them. However, the accused Sultan was convicted for the offences under Section 302 and also 302/149 IPC. Consequently, these three persons were acquitted of all the charges levelled against them. However, the accused Sultan was convicted for the offences under Section 302 and also 302/149 IPC. The other accused Mohan Singh was convicted for the offence under Section 302/149 IPC and therefore he had filed an appeal (387/1982) but the same was ordered to have been abated on 19.4.2011, as he expired during the pendency of the appeal. Hence, the present appeal filed by Sultan (367/1982) has come up for hearing before us. Another accused person in the present case was Hazari against whom there were specific allegations for participation in the incident, so much so that it was alleged that he had used fire arm which caused injury to the deceased Govind Sahai on his head. The said accused had subsequently faced trial (Sessions Case o. 45/88) and the learned Additional District & Sessions Judge, Karauli had pronounced the judgment on 31.1.1991 by which the accused Hazari was acquitted of all the charges levelled against him. 10. Coming to the case of the prosecution against the present appellant Sultan, it is revealed from the material on record that the prosecution had produced 13 witnesses including the medical jurist for the purpose of proving its case before the learned trial Court. The star witnesses of the prosecution as against the accused Sultan are Padam Chand (PW.1), Banwari Lal (PW.2), Pyare Lal (PW.4), Murari Lal (PW. 5), Madan Lal (PW. 6), Hukum Chand (PW.9) and Radha Mohan (PW.10), A perusal of the impugned judgment passed by the learned court below reveals that on the basis of the testimony of the aforesaid prosecution witnesses, the learned trial Court held that no offence, whatsoever, had been proved by the prosecution against the accused Mangla, Ranglal and Ramcharan. However, in respect of the accused Sultan, the learned trial Court concluded, on the same set of evidence produced by the prosecution, that Sultan was present at the time of incident and he had participated in it. However, in respect of the accused Sultan, the learned trial Court concluded, on the same set of evidence produced by the prosecution, that Sultan was present at the time of incident and he had participated in it. It is to be noted that while considering the allegation and evidence against the accused Mangla, the learned trial court had observed that one person by the name of Mangla had been mentioned in the first information report (Ex.P/1) and in the trial held earlier (Sessions Case No. 39/78/74/78), challan was filed against Mangaliya son of Hariya and on conclusion of the trial, the said person was acquitted. It was also observed that the prosecution has now come with the case that Mangla son of Ram Kishan was present at the time of incident. After having considered the evidence in this regard, the learned trial court gave the finding that the case of the prosecution as against Mangla son of Ram Kishan had not been proved. 11. In respect of the accused Sultan, the prosecution witnesses, such as Padam Chand, Banwari Lal, etc. had deposed that when the deceased Govind Sahai had raised objection in respect of the beating being given to Madan Lal by the accused persons then the accused Ganga Sahai (since dead) had asked his companions to do away with him because he was the root cause of the whole dispute. Thereafter, the accused Sultan is alleged to have given lathi blow on the head of the deceased Govind Sahai. Similar allegations against the accused Sultan have been levelled by Banwari Lal, Murari Lal, etc. A close look to the statement of prosecution witness Murari Lal (PW. 5) goes to show that he had deposed that Sultan had inflicted injuries on the head of deceased Govind Sahai from the front which caused the injury on the middle of the head but then he had further stated that he does not remember that on which part of the body the said injury was sustained by the deceased Govind Sahai. Similarly, Radha Mohan son of deceased Govind Sahai (PW.10) had stated that the accused Sultan had inflicted injuries on the head of his father as a result of which he fell down. Similarly, Radha Mohan son of deceased Govind Sahai (PW.10) had stated that the accused Sultan had inflicted injuries on the head of his father as a result of which he fell down. However in the cross examination, the said prosecution witness had deposed that the accused Sultan inflicted injury by a stick on the front of the head of the deceased Govind Sahai and he does not remember specifically as to on which part of the body the injury was sustained by the deceased. In other words, the case of the prosecution, from the evidence on record, is that the accused Sultan had inflicted injury on the frontal part of the head of the deceased Govind Sahai. 12. Another important piece of evidence produced on record is by the defence who had come with the case that the injuries sustained by the deceased Govind Sahai on the scalp was due to fall of fuel wood having irregular margin which was thrown from the top of the roof. The prosecution witnesses, namely Chhotu (PW.7) and Ram Sahai (PW. 8), though declared hostile, had stated that some persons were having lathis and others were throwing stones as well as irregular margin fire wood from the top of the roof. One such fire wood had struck on the head of the deceased Govind Sahai. From the accused side, suggestions in respect of their case were also put to the other prosecution witnesses like Murari Lal, Radha Mohan, etc. which they had of course denied. It may also be noted that question in this regard was also put to the medical jurist Dr. Brijendra Singh Rathore who replied that "If a fuel wood having irregular margins is thrown from a height of four to six feet upon the head of the deceased both the punctured wounds can be caused alongwith the internal injuries." As mentioned above, it is the case of the prosecution itself that the co-accused Hazari had fired with a katta which had caused injuries on the head of the deceased Govind Sahai. 13. As regard the allegation against the accused for having inflicted injury on the front side of the head of the deceased Govind Sahai, first of all, there is no mention in the Panchayatnama about the said injury resulting in hematoma. Secondly, as per the postmortem report (Ex. 13. As regard the allegation against the accused for having inflicted injury on the front side of the head of the deceased Govind Sahai, first of all, there is no mention in the Panchayatnama about the said injury resulting in hematoma. Secondly, as per the postmortem report (Ex. P/19), the injuries sustained by the deceased Govind Sahai were as under:- Scalp (1) A punctured wound - 1/4" Diameter x Bone Deep - on the anterior Part of Scalp - 1-1/2" behind Hair Line. (2) A Punctured wound - 1/8" Diameter x Bone Deep - Situated on the Scalp 1-1/2" behind and towards left side of Inj. No. (1) (3) A hematoma extending over forehead up to both the eyes. Skull = Hematoma covering all over the vault of skull = Comminuted Fracture of the Frontal and both Parietal Bones of the vault of skull. It is further mentioned that as a result of the injuries sustained on the scalp, the membranes were found to be lacerated and torn. A look to the statement of the medical jurist Dr. Brijendra Singh Rathore (PW. 11) goes to show that he had deposed regarding external injuries on the deceased Govind Sahai, that firstly, a punctured wound on anterior part of scalp behind hair line, edges inverted; secondly, a punctured wound also situated on scalp behind and towards the left side of injury No. 1 and thirdly, a hematoma extending over forehead upto both the eyes. In respect of internal injuries, the medical jurist had stated that there was communited fracture of the frontal and both parietal bone of vault of skull; membranes of the brain were found lacerated and torn and there was laceration with multiple hemorrhage within the brain tissues. As regards the cause of death, he had stated that in his opinion, it was profuse hemorrhage and injury to brain caused by blunt injuries on the scalp. He had also stated that external injury No. 1 ad 2 together, as mentioned above, were sufficient in the ordinary course of nature to cause death. In his cross-examination, the medical jurist has stated that "The hematoma found on the dead body was the result of two punctured wounds found on the head and not a separate injury itself. I have not found any injury caused by blunt weapon upon the head of the deceased. In his cross-examination, the medical jurist has stated that "The hematoma found on the dead body was the result of two punctured wounds found on the head and not a separate injury itself. I have not found any injury caused by blunt weapon upon the head of the deceased. There was no impact of the external violance on the hematoma, therefore, I am of the opinion that no lathi landed at the head of the deceased." It may also be noted that the learned counsel for the accused appellant has invited our attention to the meaning of hematoma as given in the medical dictionary, namely Taber's Cyclopedic Medical Dictionary, which defines the same as under:- "Hematoma- A swelling or mass of blood (usually clotted) confined to an organ, tissue, or space and caused by a break in a blood vessel." 14. From the aforesaid evidence of the prosecution, as deposed by its witnesses, it is clear that though the case of the prosecution was that the accused Sultan had inflicted injuries on the front part of the head of the deceased Govind Sahai but a look to the documentary evidence on record, including the postmortem report goes to show that there is no external injury, corresponding to hematoma, has been found on the forehead of the deceased. Furthermore, the medical jurist has deposed that the hematoma on the head of the deceased was a result of injury No. 1 and 2 sustained by him on the scalp. It is also clear from the testimony of the medical jurist as well as the dictionary meaning that hematoma is a resultant of injury sustained on upper part of the body by way of laceration; tearing of membranes, etc. Therefore, a hematoma is not an independent injury but a consequence of the injuries sustained on the upper part of the body. Even with regard to cause of death of deceased Govind, it is established from the material on record including the testimony of the medical jurist that the death of the deceased was the result of injuries No. 1 and 2 which are the punctured wounds on the scalp as a result of it the membranes under-neath were lacerated; torn and profuse hematoma going upto forehead and the eyes. It is also the case of the prosecution that the punctured wounds on the scalp of the deceased were caused by the co-accused Hazari who is alleged to have used katta. It is significant to note here that on conclusion of the trial, the accused Hazari had been awarded acquittal as the prosecution case against him was not found to have been proved beyond reasonable doubt. In such a situation, the inevitable conclusion is that the prosecution has not succeeded in proving its case beyond reasonable doubt as against the accused Sultan for having committed the offence of murder of the deceased Govind Sahai. 15. In respect of the conviction of the appellant Sultan for the offences under Section 302/149 IPC also, it may be mentioned that the conviction awarded by the trial Court for both the offences i.e. under Section 302 and also under Section 302 read with Section 149 for the death of the deceased Govind Sahai is not only illegal but grossly erroneous and not sustainable in the eyes of law. As a matter of fact, conviction of the appellant for both the aforesaid offences, reveals that the learned trial Court itself had not come to a definite conclusion as to which of the two offences had been committed by the accused. Further, that the prosecution had failed to prove the alleged offence of murder against Sultan. It may also be noted that the co-accused Hazari, who was alleged to have inflicted injury on the deceased by fire arm which was the cause of death, as per the prosecution, had already been acquitted of all the offences alleged against him. In view of the fact that the accused Sultan and accused Hazari have not committed murder of Govind Sahai then the prosecution case as against the accused persons for having formed an unlawful assembly to commit murder is totally shattered. Moreover, there is no evidence to prove the formation of unlawful assembly and therefore the conviction of accused for other offences with the aid of Section 149 Cr.P.C. cannot be sustained. 16. Consequently, the role of each accused person for committing other offences under Sections 323, 324 and 325 IPC in respect of inflicting injuries to the members of the complainant party, are to be looked into. 16. Consequently, the role of each accused person for committing other offences under Sections 323, 324 and 325 IPC in respect of inflicting injuries to the members of the complainant party, are to be looked into. The learned trial Court had held in the case of Raghuveer and others (Sessions Case No. 39/78/74/78) that the remaining persons, such as Ramkaran, Thandiya, Babulal, Premchand, Ramjilal, Mangliya, Mangilal and Kannuram are liable for the said offences. But in any case as far as the accused Sultan is concerned, it had never been the case of the prosecution that he had inflicted injury to any other member of the complainant party so as to attract the said offence against him. 17. For the aforesaid reasons, we are of the considered opinion that the prosecution has failed to prove its case against the accused appellant Sultan for having committed the offence of murder of the deceased Govind Sahai. Similarly, the conviction of the accused Sultan for having committed the offence under Section 302/149 and other offences is not sustainable in law as the prosecution has failed to prove the same beyond reasonable doubt. Consequently, the accused Sultan deserves to be acquitted of all the charges levelled against him, by giving benefit of doubt. 18. In the result, the appeal filed by Sultan is allowed and the impugned judgment passed by the learned trial Court on 28.8.1982 is quashed and set aside. The accused is acquitted of all the charges levelled against him. The accused is on bail. His bail bonds stand discharged and he need not to surrender. However, the accused Sultan shall execute bail bonds in a sum of Rs. 50,000/- with two sureties of 25,000/- each for a period of six months to appear before the higher court as and when such court issues notices in respect of appeal/petition filed against this judgment.