JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant appeal has been filed by the appellants being aggrieved of the judgment dated 25.5.1990 passed by the learned Additional Sessions Judge, Rajsamand in Sessions Case No.17/1989 whereby they were convicted for the offence under Section 325/34 I.P.C and sentenced as below:- Appellant no.1 (Dungar Singh) 325/34 I.P.C. Five years' rigorous imprisonment & a fine of Rs. 500/-, in default of payment of fine, to further undergo one month's further simple imprisonment. Appellant no.3 (Sultan Singh) 325/34 I.P.C. Five years' rigorous imprisonment & a fine of Rs. 500/-, in default of payment of fine, to further undergo one month's further simple imprisonment. Appellant no.2 (Dalpat Singh) 325/34 I.P.C. The appellant no.2 being below 18 years of age on the date of judgment was granted benefit of probation. 3. Briefly stated the facts of the case are that one Kesar Singh gave an oral report Ex.P/1 to the S.H.O., P.S. Delwara on 17.2.1989. It was alleged in the report that on the previous night at about 11 to 12 O' clock, the deceased Karan Singh was standing outside a chowk near his house and was imploring the family of accused Sultan Singh as to why they were attempting to assault Kesar Singh. On hearing this call of Karan Singh, it is alleged that accused Sultan Singh, Dungar Singh, Dalpat Singh, Nirbhay Singh and Amar Singh came out of their house and exhorted that Karan Singh was Kesar Singh's agent and both should be dealt with. Sultan Singh, Dungar Singh and Dalpat Singh were having lathies in their hands. Seeing the accused, Karan Singh and Kesar Singh went into the house of Kesar Singh and closed the door from inside. The accused persons starting throwing stones on the door and also set fire to it. On this, Kesar Singh opened the door. The accused Dalpat Singh and Dungar Singh dragged Karan Singh out and assaulted him with lathies. Sultan Singh also joined the assault and gave lathi blows to Karan Singh and exhorted to kill him. The accused Nirbhay Singh and Amar Singh gave kicks to the victim. Thereafter, the accused took Karan Singh to Sultan Singh's house. There, accused Amar Singh caught hold of Karan Singh and the other four accused launched an assault by lathies and kicks with the intention of killing him. The accused Nirbhay Singh and Amar Singh gave kicks to the victim. Thereafter, the accused took Karan Singh to Sultan Singh's house. There, accused Amar Singh caught hold of Karan Singh and the other four accused launched an assault by lathies and kicks with the intention of killing him. Kesar Singh shouted, on which the witnesses Fateh Singh & Vijay Singh and various other persons came to the spot and saved him from further harm. Karan Singh became unconscious and was reportedly lying in the house in an unconscious situation. 4. On this report, the S.H.O. registered an FIR No.19/1989 for the offences under Sections 147, 148, 342 and 307/149 I.P.C. and commenced the investigation. Karan Singh was taken to the Udaipur hospital and was admitted there. He expired on the same day. Accordingly, offence under Section 302 I.P.C. was added to the case. The dead body of Karan Singh was subjected to post mortem. During the course of investigation, three sticks were recovered at the instance Nirbhay Singh. At the conclusion of investigation, a charge-sheet was filed against the appellants and one Amar Singh for the offences under Sections 147 and 302/149 I.P.C. 5. The case was committed to the Court of learned Additional Sessions Judge, Rajsamand where charges were framed against the accused for the aforesaid offences. The appellants pleaded not guilty and claimed trial. The prosecution examined as many as eleven witnesses in support of its case. The appellants in their statements under Section 313 Cr.P.C. denied the allegations of the prosecution and examined two witnesses in defence. 6. The three principle witnesses of the prosecution namely, PW 1 Kesar Singh, the first informant, PW3 Mohan Bai, the first informant's mother, and PW4 Roopa Bai, the first informant's wife turned hostile and thus, their testimony was held to be of no avail to the prosecution. The learned trial judge concluded that the testimony of four other witnesses namely, PW2 Vijay Singh, PW5 Fateh Singh, both brothers of the deceased, PW6 Prem Bai, mother of the deceased and PW8 Nirbhay Singh, cousin of the deceased, was sufficient for proving the prosecution case as they were the witnesses who had seen the incident at one point or the other. The learned trial judge also found that the participation of the accused Amar Singh and Nirbhay Singh was not proved by the testimony of these prosecution witnesses. The learned trial judge also found that the participation of the accused Amar Singh and Nirbhay Singh was not proved by the testimony of these prosecution witnesses. The learned trial judge also concluded that the accused appellants did not intend to kill the deceased and at the highest, their intention was to assault him. It was also held that the prosecution failed to specifically attribute the fatal blow on the head of the deceased to a particular accused. Accordingly, whilst acquitting all the accused of the offence under Section 302 I.P.C., the learned trial judge proceeded to convict and sentence the appellants for the offence under Section 325/34 I.P.C. Hence, this appeal. 7. Learned counsel for the appellants vehemently contended that the appellants had been falsely implicated in this case. He urged that the prosecution was guilty of suppressing the true genesis of occurrence in this case. He contended that the witnesses Vijay Singh, Fateh Singh, Prem Bai and Nirbhay Singh were all unnatural and cooked up witnesses. He contended that the deceased was hurling abuses towards the accused in an inebriated condition when he was caused the injuries. He further contended that there is no material on the record to establish that the accused appellants assaulted the deceased. In the alternative, he prayed that the appellants have remained in custody for about five months and as such, the sentence awarded to the appellants no.1 and 3 be reduced to the custody period already undergone. 8. Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced on behalf of the appellants. He urged that the learned trial court properly and justly appreciated the evidence and rightly arrived at the finding of guilty. He thus submitted that the conviction of the appellants was rightly recorded by the learned trial judge and does not call for any interference. 9. Heard and considered the arguments advanced at the bar and perused the impugned judgment as well as the record of the case. 10. The learned trial judge relied upon the testimony of four witnesses namely, PW2 Vijay Singh, PW5 Fateh Singh, PW6 Prem Bai and PW8 Nirbhay Singh for concluding that the appellants assaulted the deceased and were responsible for causing grievous injuries to him. 10. The learned trial judge relied upon the testimony of four witnesses namely, PW2 Vijay Singh, PW5 Fateh Singh, PW6 Prem Bai and PW8 Nirbhay Singh for concluding that the appellants assaulted the deceased and were responsible for causing grievous injuries to him. The salient features of the testimony of these witnesses are noted herein below:- PW2 Vijay Singh stated that he and Nirbhay Singh returned back home from Udaipur on the eve of the incident. They were informed that the first informant Kesar Singh called Karan Singh to his house at 6 O' clock in the evening and thereafter made him to consume liquor. After Karan Singh became intoxicated, Kesar Singh turned him out of the house. The witness claimed that Karan Singh was turned out of the house in his presence. Thereafter, Sultan Singh and his sons started assaulting Karan Singh. Kesar Singh's mother came to call them and informed them that Karan Singh was being assaulted by Sultan Singh. On this, the witness Vijay Singh along with Nirbhay Singh, Fateh Singh and Prem Bai went to Sultan Singh's house. The witness further claimed that they saw Amar Singh was holding Karan Singh down. Sultan Singh, Doongar Singh, Dalpat Singh, Amar Singh and Nirbhay Singh were assaulting him by lathies. Karan Singh was caused injuries all over the body including a head injury. Karan Singh walked with the witness for 15-20 steps. While he was standing at the cross roads, Amar Singh came there and prodded Karan Singh due to which he fell down and became immobile. He was lifted and brought back home. He was laid down in the house during night. Karan Singh thereafter expired at the hospital. The witness stated in his examination in chief that the accused were exhorting at the time of assault that VARNACULAR MATTER OMMITED. The witness further stated that Kesar Singh made the deceased Karan Singh to consume liquor. By this, the deceased became excited. He was sent to the house of accused by Kesar Singh intentionally because both the parties were inimical. The witness further stated that the incident took place in the night between 8 to 9 O' clock and continued for about half an hour. Karan Singh was taken back home in an injured condition after the quarrel ended. He was sent to the house of accused by Kesar Singh intentionally because both the parties were inimical. The witness further stated that the incident took place in the night between 8 to 9 O' clock and continued for about half an hour. Karan Singh was taken back home in an injured condition after the quarrel ended. Thereafter, he was laid down and the witness & the other inmates of the family also went to sleep. In the morning, the witness went to Udaipur for attending his job at the petrol pump. PW5 Fateh Singh also gave an almost similar statement. PW6 Smt.Prem stated in her examination in chief that accused Sultan Singh and his three sons caught hold of Karan Singh. She stated that by the time she reached the place of occurrence, Karan Singh had been released by the accused. In the cross examination, she admitted that the night was a pitch dark and nothing was visible. In her cross examination, she further admitted that she saw only one injury on the head of Karan Singh. PW8 Nirbhay Singh stated that he started from Udaipur at about 8 O' clock and reached Village Badisar at about 10 O' clock and thereafter, he claims to have seen the incident. 11. From a careful consideration of the testimony of these witnesses, it would be evident that the conduct of all these witnesses was highly unnatural and suspicious. Despite the fact that the deceased had been caused numerous injuries, none of these witnesses, who are all close relatives of the deceased, took any steps for providing him any treatment. The inception of the prosecution story is shrouded in a cloud of doubt. The first informant Kesar Singh turned hostile and did not stand by the F.I.R. Ex.P/1. It is significant to note that PW2 Vijay Singh stated that Kesar Singh was closely related to Sultan Singh. He also stated that a dispute was going on between the accused party and Kesar Singh. The tenor of testimony of this witness is to the effect that Karan Singh was deliberately made to consume liquor by Kesar Singh with the object of provoking him to pick up a quarrel with the accused. This version apparently does not stand to reason. The tenor of testimony of this witness is to the effect that Karan Singh was deliberately made to consume liquor by Kesar Singh with the object of provoking him to pick up a quarrel with the accused. This version apparently does not stand to reason. If at all, Vijay Singh apprehended that his brother had been deliberately provoked by Kesar Singh to pick up a quarrel, then there was no reason as to why Vijay Singh could not file the F.I.R. regarding the incident of assault with his own brother. It is apparent that the genesis of occurrence has totally been suppressed by the prosecution in this case. The conduct of four witnesses namely, Vijay Singh, Fateh Singh, Prem Bai and Nirbhay Singh in not taking any steps to provide any treatment to the deceased for whole of the night and in not reporting the matter to the police, clearly shows that these persons did not witness the incident. Vijay Singh, Fateh Singh as well as Nirbhay Singh were admittedly working at Udaipur and claimed to have returned back from their respective jobs in the night. Fateh Singh in his examination in chief admitted that Karan Singh went into the house of Sultan Singh where after the incident took place. At that time, Mohan Bai went to Karan Singh's house and informed his relatives that Karan Singh was being assaulted. There is a substantial time gap between the information being received and the witnesses reaching the place of occurrence by which time, the assault must have been completed and that is the probable explanation for the non-reporting of the matter to the police immediately. Apparently, the family members were in dark about the incident and might have realised that the deceased picked up a quarrel after consuming liquor and, therefore, they made him to lie down in the night. None of the witnesses, referred to herein above, are thus actually the eye witness of the incident. 12. In this view of the matter, this Court is of the opinion that the prosecution has failed to prove that the accused assaulted the deceased and caused him injuries which resulted in his death. The impugned judgment passed by the learned trial judge convicting and sentencing the appellants as above cannot be sustained. . Resultantly, this appeal deserves to be allowed and is hereby allowed. The impugned judgment passed by the learned trial judge convicting and sentencing the appellants as above cannot be sustained. . Resultantly, this appeal deserves to be allowed and is hereby allowed. The conviction of the appellants as recorded vide judgment dated 25.5.1990 passed by the learned Additional Sessions Judge, Rajsamand in Sessions Case No.17/1989 is set aside. The appellants are acquitted of the charges levelled against them. The appellant no.1 Dungar Singh and appellant no.3 Sultan Singh are on bail.Their bail bonds are discharged. *******