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2014 DIGILAW 169 (RAJ)

RATAN LAL v. STATE OF RAJASTHAN

2014-01-10

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

body2014
JUDGMENT BY THE COURT(PER HON'BLE MR. JUSTICE N.K. JAIN): Heard learned counsels for the accused-appellants as well as learned Public Prosecutor for the State. 2. Since these three appeals arise out of common judgment of conviction and order of sentence dated 19.04.2004 passed by the Additional Sessions Judge(Fast Track) No. 1, Alwar, Rajasthan (hereinafter referred to as 'the Trial Court') in Sessions Case No. 90/2003(99/2003), therefore, they were heard together and are being decided by this common judgment. 3. Instant appeals under Section 374(2) Cr.P.C. have been preferred by the accused-appellants questioning the correctness of the judgment and order dated 19.04.2004 passed by the learned Trial Court in Sessions Case No. 90/2003(99/2003), whereby the learned Trial Court has convicted and sentenced them as under: NAME OF ACCUSED SECTION IMPRISONMENT (1) Ratan Lal S/o. Badlu Ram; (2) Mangi Lal S/o. Ram Sahai 302 IPC To undergo life imprisonment with fine of Rs. 5,000/-, in default of payment of fine to further undergo one year's additional rigorous imprisonment. 148 IPC To undergo three years rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo three months additional rigorous imprisonment. 323/149 IPC To undergo six months rigorous imprisonment 341 IPC To undergo one month's simple imprisonment. (3) Badlu Ram S/o. Bhusarlal; (4) Lallu Ram S/o. Badlu Ram; (5) Kanhaiya Lal S/o. Devi Sahai; (6) Santosh @ Santa W/o. Sohan Lal; (7) Tara W/o. Lallu Ram ; (8) Sukhbai W/o. Ratan Lal and (9) Kamlesh W/o. Hari Kishan Jatav 302/149 IPC To undergo life imprisonment with fine of Rs. 2,000/-, inf default of payment of fine to further undergo one year's additional rigorous imprisonment 148 IPC To undergo three years rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo three months additional rigorous imprisonment. 323 IPC To undergo six months rigorous imprisonment. 341 IPC To undergo one month's simple imprisonment All the sentences were ordered to run concurrently. 4. 500/-, in default of payment of fine to further undergo three months additional rigorous imprisonment. 323 IPC To undergo six months rigorous imprisonment. 341 IPC To undergo one month's simple imprisonment All the sentences were ordered to run concurrently. 4. The brief facts giving rise to the present appeals are that on 27.05.2003, FIR No. 144/2003(Exhibit P-44) was registered under Sections 147, 148, 149, 302 and 323 IPC by Janesh Singh Tanwar(P.W. 11), S.H.O. at Police Station Sadar, Alwar against the accused-appellants and other persons on the basis of Parcha Bayan(Exhibit P-1) of Mukesh S/o. Sohanlal Jatav(P.W.1) resident of Mundia Kheda stating therein that on 26.05.2003, some quarrel took place at the hand pump between the women of complainant party and the women of the house of Sonu S/o. Badlu Jatav, as the accused party was having malice with the complainant party. It was further stated that on 27.05.2003 at about 1.00 P.M., the complainant Mukesh and one Bhhikan S/o. Chiranji Lal were going to the shop of Bhaggo to bring lemons. As soon as they reached near the house of Lallu and Ratan Jatav, suddenly Ratan and Lallu sons of Badlu, Mangi, Sunil S/o. Ram Sahai, Kanhaiya S/o. Namalum, Badlu S/o. Musar, Sonu S/o. Badlu, Santa W/o. Sohan Lal, Smt. Tara W/o. Lallu, Misro W/o. Ram Sahai, Smt. Sukhbai W/o. Ratan Lal, Ku. Kamlesh and Ku. Beena daughters of Sonu, all by caste Jatav, resident of Village Mundia Kheda came with common object and surrounded the complainant and Bhhikan. Ratan was having Farsi; Mangi Lal was having Tanchiya and Beena was having Khasola and all other persons were having lathies. Lallu inflicted injury on the head of the complainant Mukesh by lathi. Accused Ratan and Mangi Lal inflicted injury on the head of Bhhikan and remaining accused inflicted injury on the complainant and other persons also. Bhhikan had then fell down on the ground and died on the way to hospital. When Rajendra, his mother Kamla and aunt Ramdei had come to rescue, the accused inflicted injury on them also. Pradeep and other women were presemt there who had seen the incident. 5. On the basis of aforesaid Parcha Bayan(Exhibit P-1), FIR (Exhibit P-44) was registered against 14 persons. During investigation, the Investigating Officer prepared the relevant memos, inquest report, site plan and took sample of blood stained soil from the spot and collected other incriminating articles. Pradeep and other women were presemt there who had seen the incident. 5. On the basis of aforesaid Parcha Bayan(Exhibit P-1), FIR (Exhibit P-44) was registered against 14 persons. During investigation, the Investigating Officer prepared the relevant memos, inquest report, site plan and took sample of blood stained soil from the spot and collected other incriminating articles. Injured Mukesh, Ramdei, Rajendra and Kamla were medically examined. Statements of witnesses were recorded by the Investigating Officer. On the information received from the accused persons, weapons of offence were recovered. Postmortem of the deceased Bhhikan Ram S/o. Chiranji Lal Jatav(Exhibit P-19) was got conducted and taken on record. 6. After completion of investigation, charge sheet was filed against the accused-appellants for the offences under Sections 148, 149, 302, 323 and 341 IPC. Separate charge sheet was filed against co-accused Beena, before the Juvenile Justice Board. Thereafter, the case was committed to the Court of Sessions and ultimately, it was transferred to the learned Trial Court for conducting the trial. 7. The Trial Court after hearing the arguments of learned counsels for the parties, framed charges against accused-appellants Mangi Lal and Ratan Lal under Section 148, 302, 323/149 and 341 IPC and against other co-accused for the offence under Sections 148, 302/149, 323/149 and 341 IPC. Upon denial of charges by the accused-appellants, trial commenced in the present case. During trial, the prosecution supported its case with the aid of 13 witnesses and exhibited 44 documents. An opportunity was given by the learned Trial Court to the accused-appellants, as per the provisions of Section 313 Cr.P.C., to explain their conduct with regard to adverse material available in the evidence on record adduced by the prosecution. The accused-appellants negated the prosecution evidence and stated that the complainant party had caused injuries to the members on the accused side. In support of it, injury reports of Sukhbai, Badlu, Kanhaiya Lal, Lallu, Santosh and Tarabai were got exhibited. They had also stated that the complainant party had inflicted injuries on them and against that incident, a cross case was also registered and they have falsely been implicated in this case. 8. In support of it, injury reports of Sukhbai, Badlu, Kanhaiya Lal, Lallu, Santosh and Tarabai were got exhibited. They had also stated that the complainant party had inflicted injuries on them and against that incident, a cross case was also registered and they have falsely been implicated in this case. 8. In defence, no witness was produced by the accused-appellants, but nine documents, i.e. injury reports of Sukhbai, Badlu, Kanhaiya Lal, Lallu, Exhibit D-1 to Exhibit D-4 respectively; Copy of X-Ray report of Lallu(Exhibit D-5); Photo copy of injury reports of Santosh and Tarabai(Exhibit D-6 and Exhibit D-7) and statements of Rajendra Kumar and Smt. Kamla under Section 161 Cr.P.C.(Exhibit D-8 and Exhibit D-9) were exhibited. Learned Trial Court, while relying upon the evidence of the injured eye witnesses and other evidence corroborated by medical evidence, recovery of the weapon used by the accused-appellants, convicted and sentenced them vide judgment and order dated 19.04.2004, in terms stated hereinabove. 9. Hence, these three appeals have been preferred by the accused-appellants against the impugned judgment and order passed by the learned Trial Court. It is an undisputed fact that during pendency of these appeals, one of the accused-appellants Kanhaiya Lal S/o. Devi Sahai had expired and a report bearing No. 1778 dated 28.03.2007 was sent by the Superintendent, District Jail, Alwar to the learned Trial Court and the same was forwarded by the learned Trial Court, vide its letter dated 27.09.2007, to this Court and is available on record of Criminal Appeal No. 509/2004. 10. The learned counsels for the accused-appellants mainly reiterated the contentions already advanced before the learned Trial Court and further contended that the Trial Court has erred, while relying upon the statements of prosecution witnesses. The prosecution has failed to prove its case beyond reasonable doubt. The findings arrived at by the learned Trial Court are erroneous, perverse as well as contrary to the facts and circumstances of the case and evidence available on record. The impugned judgment suffers from misreading and non-reading of the vital evidence available on record. The Trial Court has failed to consider that it was the duty of the prosecution to stand on its own legs so as to prove its case against the accused-appellants and the burden cannot be shifted on the accused persons. The duty of the accused persons is only to preponderance of probabilities in their favour. The Trial Court has failed to consider that it was the duty of the prosecution to stand on its own legs so as to prove its case against the accused-appellants and the burden cannot be shifted on the accused persons. The duty of the accused persons is only to preponderance of probabilities in their favour. But the learned Trial Court, by not dealing with the explanation given by the accused-appellants in their statements recorded under Section 313 Cr.P.C. and also in appreciating the fact of cross case, has totally failed to consider this vital aspect of the matter that they have been falsely implicated in this case. 11. Learned counsels for the accused-appellants further contended that the prosecution story as regard to the incident is doubtful. Learned Trial Court has erred in convicting the accused-appellants by not properly appreciating the evidence on record and incorrectly applied legal position. Therefore, the impugned judgment is bad in the eyes of law and the same deserves to be quashed and set aside. Learned Trial Court has failed to appreciate that before appreciation of Section 149 IPC, the exact detail of each and every accused and every stage of the occurrence has to be proved by the prosecution. But in the instant case, instead of the prosecution bringing out individual roles as members of unlawful assembly of the accused-appellants, their witnesses themselves have denied the story brought out in FIR(Exhibit P-44). 12. Learned counsels for the accused-appellants also submitted that the prosecution case is based mainly on the evidence of Mukesh, Informant(P.W.1), Rajendra, injured(P.W.6), Smt. Kamla W/o. Sohan Lal, injured(P.W.7), Ramdei, injured(P.W.8). Mukesh Jatav(P.W.1) and Rajendra(P.W.6) who are not trustworthy witnesses. There are material contradictions in the statements of these witnesses which make the prosecution case doubtful and no conviction can be based on their evidence. Mukesh Jatav(P.W.1) has stated that he was going along with the deceased Bhhikan to bring lemons whereas Ramdei (P.W.8), mother of the deceased Bhhikan has stated that Bhhikan had gone alone to bring lemons. In view of this statement, it is clear that Mukesh(P.W.1) had not gone along with the deceased and his presence at the place of occurrence becomes doubtful. In view of this statement, it is clear that Mukesh(P.W.1) had not gone along with the deceased and his presence at the place of occurrence becomes doubtful. In the same manner, the presence of Rajendra(P.W.6) on the spot is also doubtful as Ramdei (P.W.8) has clearly stated that she, Rajendra and Mukesh had reached at the spot after the incidence had taken place and Bhhikan had died by that time. In these circumstances, no conviction could be based on such prosecution evidence. Kamla(P.W.7) has clearly stated that she reached the spot when occurrence had already taken place. Ramdei (P.W.8), mother of the deceased Bhhikan has also stated that they all reached at the place after the incident had taken place. In these circumstances, evidence of Kamla(P.W.7) and Ramdei(P.W.8) are of no help to the prosecution and other witnesses also cannot be said to be the eye witnesses of the occurrence. 13. Learned counsels for the accused-appellants had submitted that in the statement of Rajendra(P.W.6), recorded under Section 161 Cr.P.C., it has been mentioned that one injury was inflicted on the head of the deceased by accused-appellant Ratan Lal and another by the accused-appellant Sukhbai. But during the trial, the said witness had denied to have made such statement before the police. In the instant matter it has been admitted that on the head of the deceased one injury has been caused by accused Ratan Lal and another by co-accused Sukhbai. In spite of this fact, Mangi Lal has been convicted under Section 302 IPC. Hence, the impugned judgment and order passed by the learned Trial Court, qua the accused Mangi Lal, is not sustainable and liable to be quashed and set aside. 14. It has further been contended by the counsels for the accused-appellants that the learned Trial Court has failed to appreciate the fact that no independent witness was examined by the prosecution and therefore its story is doubtful. No person from the locality was produced by the prosecution. It is clear from the prosecution story that there were many persons residing in the locality where the incident had taken place. They must have come to the place of occurrence. Absence of independent witnesses in this case creates serious doubt on the version of the incident given by prosecution. Only the family members of the deceased were examined by the prosecution. They must have come to the place of occurrence. Absence of independent witnesses in this case creates serious doubt on the version of the incident given by prosecution. Only the family members of the deceased were examined by the prosecution. Therefore, adverse inference should have been drawn, by the learned Trial Court, against the prosecution for withholding and not examining the independent witnesses. 15. Learned counsels for the accused-appellants submitted that a cross case was lodged against the complainant party wherein six accused persons had sustained injuries. Kanhaiya Lal had sustained an injury on his head by sharp edged weapon. Lallu Ram had sustained fracture of fifth rib. No explanation had been given by the prosecution regarding the injuries sustained by the members of the accused party. These injuries included an injury by sharp edged weapon and also fracture of ribs, as such, the injuries should not have been brushed aside lightly by the learned Trial Court. It is settled principle of law that if the accused persons have sustained injuries then the prosecution must explain them and if no explanation is put forward, then their case becomes doubtful and no conviction can be based in such a case. In the instant case, the complainant party were the aggressor and the occurrence had taken place at the house of the accused party. From the prosecution evidence itself, the place of occurrence becomes doubtful as there are material contradictions, omissions and improvements in the prosecution version; the place of occurrence and site plan prepared by the investigating officer. The recoveries have been made from open and common place which cannot be said to be in exclusive possession of the accused appellants. As per the seizure memos of Farsi and Tanchiya recovered from the accused-appellants Ratan Lal and Mangi Lal, there were no blood stains on the weapons at the time of recovery. But as per the FSL Report, human blood was found on these weapons. This clearly shows that some manipulations had been done with the weapons. Learned Trial Court has committed error in holding that injuries to the deceased were caused by these weapons because no blood group was detected on it and there is no evidence on record to show that it was the blood group of the deceased Bhhikan. Therefore, it cannot be held that the weapons recovered were used in the instant crime. 16. Therefore, it cannot be held that the weapons recovered were used in the instant crime. 16. Learned counsel for the accused-appellants further submitted that learned Trial Court has wrongly discarded the defence evidence. Looking to the facts and circumstances of the case, the incident took place all of sudden and the prosecution could not prove the object of commission of offence and learned Trial Court has failed by relying on the story of the prosecution. Hence, the findings recorded by the learned Trial Court are not at all justified and are contrary to the principles of criminal jurisprudence. It has further been submitted that learned Trial Court has failed to consider the medical evidence on record which is different from the statements of witnesses as well as the findings recorded by the learned Trial Court. Hence, the accused-appellants are entitled to be acquitted from the charges levelled against them. There is no motive of the incident and this makes it highly improbable to form an unlawful assembly for committing the offence. In these circumstances, the accused-appellants are entitled to be acquitted from the charges levelled against them. Deceased Bhhikan had sustained two injuries and both are caused by sharp edged weapons. There is no allegation against the accused-appellants Badlu Ram, Lallu Ram, Kanhaiya Lal(died during pendency of the appeal) and the ladies accused-appellants that they caused any injury to deceased Bhhikan. Therefore, their conviction under Section 302 read with Section 149 IPC is not sustainable. The prosecution has failed to bring on record the material to connect the accused-appellants with commission of crime. Therefore, learned counsels for the accused appellants have prayed that the instant appeals be allowed and impugned judgment/order passed by the learned Trial Court be quashed and set aside. The accused-appellants deserve to be acquitted from the charges levelled against them. 17. While opposing the appeal, learned Public Prosecutor supported the impugned judgment/order passed by the learned Trial Court and submitted that there is no reason to disbelieve the evidence of the injured eye witnesses Mukesh Jatav(P.W.1), Rajendra(P.W.6), Smt. Kamla(P.W.7), Smt. Ramdei(P.W.8); medical evidence; recovery of weapons from the accused-appellants, especially from accused-appellant Mangi Lal and Ratan Lal and the FSL report. It is also submitted that prosecution witnesses have fully supported the case and there is neither any improvement, nor any material contradiction or omission in their statements. It is also submitted that prosecution witnesses have fully supported the case and there is neither any improvement, nor any material contradiction or omission in their statements. They are natural, reliable and trustworthy witnesses of the present case. Prosecution witnesses have narrated true facts of the incident. The occurrence took place on the main road of village Mundia Kheda. Mukesh(P.W.1), Ramdei(P.W.8), Kamla (P.W.7) and Rajendra(P.W.6) have also sustained injuries in this incident. FIR has been promptly lodged. Therefore, the case is fully proved by the prosecution and guilt is proved against all the accused-persons beyond any shadow of doubt. There is no reason to disbelieve the evidence of Ramdei, Kamla, Rajendra and Mukesh Jatav, informant of the case. Only for the reason that other witnesses were not examined, the evidence of the injured eye witnesses cannot be discarded. Learned Trial Court has elaborately considered the entire prosecution evidence and rightly convicted and sentenced the accused-appellants, as mentioned hereinabove. Hence, learned Public Prosecutor has submitted that the present appeals of the accused appellants lack merit and the same are liable to be dismissed. 18. We have given our thoughtful consideration to the submissions made by learned counsels for the parties and carefully perused the entire oral and documentary evidence adduced by both the parties, as also the record of the Trial Court. 19. The investigating agency, during the course of investigation, got the autopsy of the deceased Bhhikan S/o. Chiranji Lal Jatav R/o. Mudiyakheda done and as per the statement of Dr. Phool Singh Choudhary(P.W.5) and the Postmortem Report(Exhibit P-19), the deceased was having following ante mortem injuries: “(1) Incised wound on Rt. Parieto Occipital region of 11 cm x 4 cm x bone deep. Margins are sharp clean cut. Elliptical in shape along with unclotted blood. The wound is in Antero-post direction. Hairs are cut at the site of wound. (2) Incised wound as Rt. Mastoid occipital region. 11 cm x 2 cm x bone deep. Elliptical in shape. Margin sharp & clean cut. Wound lane unclotted blood. Haris are also cut at the site of wound. Direction is antero post. Distance between both wounds is 7 cm.” As per the Postmortem Report(Exhibit P-19), Dr. Phool Singh Choudhary clearly stated that the cause of death of Bhhikan was coma due to injury to brain which was sufficient in ordinary course of nature to cause death. 20. Haris are also cut at the site of wound. Direction is antero post. Distance between both wounds is 7 cm.” As per the Postmortem Report(Exhibit P-19), Dr. Phool Singh Choudhary clearly stated that the cause of death of Bhhikan was coma due to injury to brain which was sufficient in ordinary course of nature to cause death. 20. As per the Injury Report(Exhibit P-20) of Mukesh(P.W. 1), he was having following injuries: “(1) Lacerated wound on fore head Rt. Side above eye lining of 6 cm x 2 ½ cm x muscle deep.-Blunt Advise- X Ray. (2) Abrasion Lt. Index finger at distal pholux, aspect of 1 x 1/4 x ¼ cm along with clotted blood. (3) Abrasion on Lt. Arm in Upper part of 3 cm x 1/2 cm along with red colour” All Injuries were caused by blunt weapon and Injury No. 1 after X Ray was found to be simple in nature. 21. As per Injury Report(Exhibit P-21), Ramdei(P.W.8) sustained following injury: “(1) Diffuse Swelling on Rt hand dorsally in whole arm along with redness.” This injury was caused by blunt weapon and was advised for X Ray but he did not got for it. 22. As per Injury Report(Exhibit P-22), Smt. Kamla(P.W.7) sustained following injuries: “(1) Diffuse swelling on Rt elbow post in 10 x 8 cm along red colour, (2) Bruise on Rt. Side of chest post in 10 cm x 2 cm along with red colour.” Both injuries were caused by blunt weapon and advised for X Ray. After X Ray the injuries were found to be simple in nature. 23. As per Injury Report(Exhibit P-23), Rajendra(P.W.6) sustained following injury: “(1) Swelling on fore head Lt. Side of 3 x 3 cm along with red colour, simple/blunt.” 24. According to the statement of Dr. Phool Singh Choudhary (P.W.5), there were injuries on the persons of accused also. As per Injury Report(Exhibit D-1) of accused Sukhbai, she sustained following injuries: “(1) C/o pain Rt shoulder. No visible injury only tenderness present. (2) C/o pain Rt chest No visible injury tenderness only. Tenderness Present. (3) Lacerated wound on Lt toe aneterior of 2 x 1/4 x ¼ cm along with slight pus formation. (4) C/o pain along with tenderness Lt leg lower 1/3rd, no visible injury at finger.” All injuries were caused by blunt weapon. No visible injury only tenderness present. (2) C/o pain Rt chest No visible injury tenderness only. Tenderness Present. (3) Lacerated wound on Lt toe aneterior of 2 x 1/4 x ¼ cm along with slight pus formation. (4) C/o pain along with tenderness Lt leg lower 1/3rd, no visible injury at finger.” All injuries were caused by blunt weapon. For Injury No. 1 and 2, X Ray was advised but the injured did not go for X Ray. Injury No. 3 and 4 were simple in nature. 25. As per Injury Report(Exhibit D-2) of accused Badlu Ram, he sustained following injuries: “(1) Lacerated wound Lt. Pinna anterior in middle part of 2½ cm x ¼ cm x 1/8 cm. (2) Lacerated wound on Lt Pinna post in Middle part of 2 ½ x ¼ x 1/8 cm along with fresh clotted blood and bleeding. (3) C/o pain in Rt hand at palmor aspect. No visible injury at time of ex. Only tenderness present. (4) Diffuse swelling on Lt. Side of head near tempo-mastrad region along with redness.” All injuries were caused by blunt weapon. Injury No. 3 and 4 were advised X Ray. After X Ray report, all the injuries were found to be simple in nature. 26. As per Injury Report(Exhibit D-3) of accused Kanhaiya Lal, he sustained following injuries: “(1) Incised wound on Rt side fore head 5 cm x 3 cm x bone deep along with fresh clotted blood. (2) Lacerated wound in Rt. upper lip at mouth region of ¼ x ¼ x ¼ cm along with fresh clotted blood.” Injury No. 1 was caused by sharp edged weapon and advised X Ray. Injury No. 2 was caused by blunt weapon and was simple in nature. 27. As per Injury Report(Exhibit D-4) of accused Lallu, he sustained following injuries: “(1) Lacerated wound on occipital region 3 cm x ¼ x ¼ cm along with fresh clotted blood. (2) Abrasion on Rt. Middle finger at distant phalanx of ½ cm x ¼ x ¼ cm along with lacerated wound and clotted blood. (3) C/o pain on Rt side of chest and in lower part along with tenderness.” Injury No. 2 was caused by blunt weapon and was simple in nature. Injury No. 1 and 3 were caused by blunt weapon and was advised for X Ray. (3) C/o pain on Rt side of chest and in lower part along with tenderness.” Injury No. 2 was caused by blunt weapon and was simple in nature. Injury No. 1 and 3 were caused by blunt weapon and was advised for X Ray. After X Ray report Injury No. 3 was found to be grievous in nature. 28. As per Injury Report(Exhibit D-6) of accused Santosh, she had sustained following injury: “(1) Swelling on occipital region 3 cm x 3 cm along with red colour. Simple/blunt.” 29. As per Injury Report(Exhibit D-7) of accused Tarabai, she had sustained following injuries: “(1) Lacerated wound on fore head Rt side 2½ cm x ¼ cm x ¼ cm along with clotted blood. (2) C/o pain in chest Rt side. No visible injury present.” Injury No. 1 was caused by blunt weapon and was advised for X Ray. 30. The investigating agency arrested the accused Ratan Lal vide arrest memo(Exhibit P-7) and on the basis of the disclosure made by him under Section 27 of the Evidence Act(Exhibit P-27), one Farsi was recovered(memo Exhibit P-8) and a site plan of place of recovery (Exhibit P-11) was prepared. 31. Accused Mangi Lal was arrested vide arrest memo(Exhibit P6) and on the basis of the disclosure made by him under Section 27 of the Evidence Act(Exhibit P-28), one Tanchiya was recovered (memo Exhibit P-9) and the site plan of place of recovery(Exhibit P-10) was also prepared. Sticks and Kulhadi were also recovered at the instance of other accused persons, during the course of investigation. 32. It is admitted fact that during the investigation, Farsi and Tanchiya were sent for serological examination to Forensic Science Laboratory, Jaipur and F.S.L. had given its report(Exhibit P-25). On examination of both the weapons, human blood was found, but the blood group could not be determined. 33. We have pondered over the prosecution case as well as defence version also. We have also gone through the documentary evidence produced by the parties. The conviction of the accused-appellants in this case is mainly based upon the testimony of the four injured eye witnesses, viz., Mukesh Jatav( informant-PW/1); Ramdei (mother of the deceased-PW/8); Rajendra(injured in the incident-PW/6) and Kamla(wife of Sohan Lal and mother of Mukesh informant-PW/7). 34. We have also gone through the documentary evidence produced by the parties. The conviction of the accused-appellants in this case is mainly based upon the testimony of the four injured eye witnesses, viz., Mukesh Jatav( informant-PW/1); Ramdei (mother of the deceased-PW/8); Rajendra(injured in the incident-PW/6) and Kamla(wife of Sohan Lal and mother of Mukesh informant-PW/7). 34. Mukesh(P.W.1) injured eye witness and informant in this case has reiterated the facts of the FIR and categorically stated that accused Ratan Lal inflicted Farsi blow and accused Mangi Lal by a Tanchiya over the head of the deceased Bhhikan, as a result of which he fell down. The accused Lallu inflicted lathi blow on the head of Bhhikan and other accused persons had also given lathi blows on the body of his mother Kamla, aunt Ramdei and brother Rajendra who had reached there after hearing the noise of quarrel. His family members brought him to the hospital for treatment where the doctor had declared Bhhikan to be died. The police had prepared an inquest report (Exhibit P-2) of dead body of Bhhikan; site plan (Exhibit P-3) and other memos during the course of investigation. 35. Rajendra(P.W.6), an injured eye witness of this case has stated that on 27th May, 2003 at about 1.00-1.30 P.M. while he was at his house, he heard a hue and cry from the house of Hukum Chand. Thereafter, he went there and saw that accused persons had surrounded Mukesh and Bhhikan. Mangi Lal was having Tanchiya, Ratan a Farsi and all other accused persons were having lathies and stones. Mangi Lal inflicted Tanchiya blow and Ratan gave a Farsi blow on the head of Bhhikan. He had gone to rescue them and Sonu inflicted lathi blow on his forehead. His aunt Ramdei came and the accused persons inflicted injuries to her also. In cross-examination by the counsel for the defence, he admitted the fact that 50 persons were present when he had reached the spot. He had not seen Sukhbai inflicting injury to any one. He had also not seen any injury caused on the body of the accused persons. He had also admitted the fact that cross case is pending against him. 36. Kamla(P.W.7) has stated that on the day of incident quarrel had taken place in front of the house of Hukum Chand. When she reached there, Bhhikan was lying on the ground and was bleeding. He had also admitted the fact that cross case is pending against him. 36. Kamla(P.W.7) has stated that on the day of incident quarrel had taken place in front of the house of Hukum Chand. When she reached there, Bhhikan was lying on the ground and was bleeding. Blood was oozing out of the body of Mukesh. Ratan was also there. Mangi Lal was having Tanchiya; Ratan was having Farsi; Sukhbai was having Kulhadi and other accused persons were having lathies. When she reached the spot, all accused persons ran away. Kamlesh had inflicted lathi blow on her which caused injury on hand. Someone had pelted a stone on her chest. In cross-examination by the counsel for the accused-persons she had admitted that Mukesh and Bhhikan had gone to bring lemons. 37. Ramdei(P.W.8), mother of the deceased Bhhikan has stated that on the day of incident she was at her home. She had sent her son Bhhikan to bring lemons from the shop. Thereafter she heard that her son was murdered. She went to the house of Sarpanch where she met Rajendra, Mukesh and Kamla. Later all of them reached the spot and saw that Mangi Lal was having Tanchiya, Ratan Lal a Farsi and Sukhbai was having a Kulhadi with them. When she reached the spot, Sukhbai inflicted Kulhadi blow on her left hand. All other accused persons were also present there. After having seen her son injured, she became unconscious. In her cross examination she has admitted that she reached the spot after the death of her son Bhhikan. Bhhikan had gone alone for bringing lemons from the house. She herself, Mukesh and Rajendra had gone on spot after hearing the hue and cry. She has also admitted the fact that she, Rajendra and Mukesh had reached the spot after the death of Bhhikan. 38. Janesh Singh Tanwar(P.W.11) Investigating Officer of this case deposed that he was posted as S.H.O., Police Station Sadar, Alwar on 27th May, 2003 and on that day, he recorded the Parcha Bayan of Mukesh S/o. Sohan Lal R/o. Mudiyakheda at General Hospital, Alwar and sent it to the police station through Manohar Lal, Constable (P.W.12) for registration of the case. Amar Singh, A.S.I., Incharge Police Station(P.W.13) had registered an FIR(Exhibit P-44) on the same day. Amar Singh, A.S.I., Incharge Police Station(P.W.13) had registered an FIR(Exhibit P-44) on the same day. He prepared inquest report of the dead body of Bhhikan(Exhibit P2); Site Plan(Exhibit P-3) and also prepared various memos. After the arrest of accused persons, on their information, weapons of offence were recovered. After his transfer, he had handed over the file to Jagmohan Sharma, S.H.O.(P.W.10), for further investigation. In cross examination, he has admitted that a cross case of this incident was also registered as FIR No. 145/2003 and he had also investigated the same. During investigation in the cross case, the members of accused party were also got medically examined by the medical officer and accused Lallu had sustained a grievous injury in this incident. 39. The prosecution evidence, as referred above, forms a definite opinion about culpable homicide of Bhhikan. It is also proved by evidence that accused-appellant Badlu Ram, Kanhaiya Lal, Lallu Ram, Sukhbai, Santosh @ Santa, Tara Bai had also sustained injuries in this case and a cross case was registered against the complainant party. So far as the eye witness Kamla(P.W.7) and Ramdei(P.W.8) are concerned they reached at the place of incident after the injuries having been inflicted to Bhhikan. As per the evidence of Ramdei, Rajendra had also reached the spot with her. According to the facts and circumstances of the case, there was a free fight between the parties and accused persons were also injured in the incident. However, Mukesh(P.W.1) had stated in specific terms that on 27.05.2003, at about 1.00 P.M., he and Bhhikan were going to the shop of Bhaggo for bringing lemons. When they had reached near the house of Ratan and Lallu, all the accused persons surrounded them and Ratan Lal as well as Mangi Lal inflicted injuries by Farsi and Tanchiya on the head of the deceased Bhhikan who thereafter fell down on the ground and died. It is true that after inflicting injuries to Bhhikan there was some quarrel between the parties and both the parties had sustained injuries which are proved by the medical evidence. 40. In this case, conviction of accused-appellants Badlu Ram, Lallu Ram, Kanhaiya Lal, Santosh, Tara Bai, Sukhbai and Kamlesh is with the aid of Section 149 IPC. Thus, their involvement is required to be examined after considering the entire facts and evidence of this case. 40. In this case, conviction of accused-appellants Badlu Ram, Lallu Ram, Kanhaiya Lal, Santosh, Tara Bai, Sukhbai and Kamlesh is with the aid of Section 149 IPC. Thus, their involvement is required to be examined after considering the entire facts and evidence of this case. On examination of the evidence on record, as discussed hereinabove, it is apparent that all the accused-appellants were present at the time of incident and some of them were carrying weapons. But merely on this ground alone it cannot be inferred that every one present was intending to commit mischief or any offence. In absence of such intention, an assembly cannot be termed as unlawful one. The assembly has not been found unlawful. Once the assembly has not been found unlawful, the conviction of the aforesaid accused-appellant under Section 302 with the aid of Section 149 IPC is not sustainable. 41. We have gone through the ingredients of Section 149 IPC. The object was to be immediately connected with the common object of the unlawful assembly of which the accused persons were members. In rioting when ever force or violence is used by an unlawful assembly or by any member thereof, in persuasion of the common object of the assembly, every member of such assembly is guilty of the offence of rioting. There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same. However, in the present case, the prosecution has totally failed to prove nexus between the common object and the offence alleged to have been committed. 42. In this case, Mukesh and deceased Bhhikan came in front of the house of accused party and then incident took place as per the site plan(Exhibit P-3) and FIR(Exhibit P-44). It is also true that no independent witness was produced by the prosecution in this case. Thus, individual acts of the accused-appellants acquire significance and in our considered opinion, no case is made out that the accused persons were the members of an unlawful assembly. In the facts and circumstances of the case and from the evidence available on record, the prosecution has failed to prove that accused-appellants have wrongfully restrained the deceased and Mukesh. Thus, individual acts of the accused-appellants acquire significance and in our considered opinion, no case is made out that the accused persons were the members of an unlawful assembly. In the facts and circumstances of the case and from the evidence available on record, the prosecution has failed to prove that accused-appellants have wrongfully restrained the deceased and Mukesh. For the reasons stated above and in our considered opinion, the conclusion of the learned Trial Court would amount to be a perverse one, qua the aforesaid accused persons. Therefore, the impugned judgment and order passed by the learned Trial Court cannot be sustained and the conviction of the accused-appellants Badlu Ram, Lallu Ram, Kanhaiya Lal, Santosh @ Santa, Tara Bai, Sukhbai and Kamlesh under Sections 302 read with Section 149, 148, 323 and 341 IPC and conviction of accused-appellants Ratan Lal and Mangi Lal under Sections 148, 323/149 and 341 IPC deserves to be set aside. 43. In the facts and circumstances of the present case and evidence on record, we do not find any reason to disbelieve the detailed testimony of Mukesh(P.W.1), informant who is otherwise also an injured person. The involvement of the accused Ratan Lal and Mangi Lal in the crime in question, from the evidence on record, is proved beyond any shadow of doubt. In such circumstances, we do not find any thing wrong in the conclusion arrived at by the learned Trial Court in respect of the involvement of accused Ratan Lal and Mangi Lal in commission of the crime in the present case. 44. The only question which requires consideration is whether the act of the accused-appellants Ratan Lal and Mangi Lal amount to commission of an offence of murder punishable under Section 302 IPC or it constitute an offence other than that. In this regard it would be appropriate to consider the essential requirements to invoke Exception 4 of Section 300 IPC. Exception 4 to Section 300 IPC can be invoked if any of the following requirements are satisfied: (i) It was a sudden incident; (ii) There was no premeditation; (iii) The act was done in the heat of passion, and; (iv) Assailant had not taken any undue advantage or acted in a cruel or unusual manner. Exception 4 to Section 300 IPC can be invoked if any of the following requirements are satisfied: (i) It was a sudden incident; (ii) There was no premeditation; (iii) The act was done in the heat of passion, and; (iv) Assailant had not taken any undue advantage or acted in a cruel or unusual manner. From the facts and evidence available on record, it is not established that the accused-appellant Ratan Lal and Mangi Lal were having any common intention to kill Bhhikan. As per the prosecution, the incident had taken place all of a sudden when the deceased Bhhikan and informant Mukesh were going to bring lemons from a shop. There was no premeditation. As per the evidence, occurrence took place in front of house of the accused party and the accused persons had also sustained injuries, including by sharp edged weapon and grievous in nature. Therefore, the act was done in the heat of passion and it is also proved that accused Mangi Lal and Ratan Lal had not taken any undue advantage or acted in a cruel or unusual manner. According to the evidence, the accused Ratan Lal and Mangi Lal had inflicted one injury each. It is true that the injuries inflicted by accused-appellant Mangi Lal and Ratan Lal were serious in nature and sufficient to cause death in ordinary course of nature. Accused Ratan Lal and Mangi Lal must be having knowledge that the bodily injury inflicted by them by sharp edged weapon like Farsi and Tanchiya may cause death, but was not intending to kill Bhhikan as they had not repeated the same. Therefore, we impute only this much intention on the accused-appellants that injuries inflicted by them on the vital parts of the body of deceased Bhhikan were likely to cause death and this act comes within purview of Section 304 Part I IPC instead of Section 302 IPC. Accordingly, sentences of the accused-appellants Ratan Lal and Mangi Lal are reduced to 10 years rigorous imprisonment each, instead of life imprisonment with fine of Rs. 5,000/-; in default of payment of fine, each of the accused-appellant to undergo one year’s additional rigorous imprisonment. 45. Consequently, the appeals filed by Ratan Lal(2/2005) and Mangi Lal(541/2004) are partly allowed. The conviction and sentences awarded to them are modified, as aforementioned. 5,000/-; in default of payment of fine, each of the accused-appellant to undergo one year’s additional rigorous imprisonment. 45. Consequently, the appeals filed by Ratan Lal(2/2005) and Mangi Lal(541/2004) are partly allowed. The conviction and sentences awarded to them are modified, as aforementioned. They are in jail and shall be released forthwith, if not required in any other case. Accordingly, the judgment and order dated 19.04.2004 passed by Additional Sessions Judge(Fast Track) No. 1, Alwar in Sessions Case No. 90/2003(99/2003) is set aside to that extent. The appeal(509/2004) filed by Badlu Ram, Lallu Ram, Ms. Santosh @ Santa, Ms. Tara, Ms. Sukh Bai and Ms. Kamlesh is allowed. The judgment and order dated 19.04.2004 passed by Additional Sessions Judge(Fast Track) No. 1, Alwar in Sessions Case No. 90/2003 (99/2003) is quashed and set aside, qua the appellants. The said accused appellants are acquitted of all the charges levelled against them. The accused appellants Badlu Ram S/o Bhusar Lal Jatav and Lallu Ram S/o Badlu Ram Jatav are in jail and they shall be released forthwith, if not required in any other case. As the accused appellant Kanhiya Lal had died during the pedency of these proceedings, therefore, the appeal filed by him stands abetted. The accused appellants Ms. Santosh @ Santa, Ms. Tara, Ms. Sukh Bai and Ms. Kamlesh are on bail and they need not surrender. Their bail bonds stand discharged.