JUDGMENT 1. - Rajendra Singh @ Deena s/o. Hanuman Singh, Sawai Singh s/o. Matusingh, Rameshwar s/o. Bhagwana, Girdhari s/o. Beharilal, Rajendra Prasad s/o. Banshidhar, Ram Niwas s/o. Madanlal, Moolchand s/o. Prabhat, Madan s/o. Behari, and Sube Singh s/o. Madan, have instituted D.B. Criminal Appeal No. 1420/2007. We have been told that out of nine appellants, the appellant No.8, Madan s/o. Behari has expired on 13.3.2014. Roshan lal s/o. Bhagwana, Hanuman Singh s/o. Godsingh, Mahesh s/o. Madanlal, Arjun s/o. Sardara, Mahesh s/o. Ramkaran, Sheoram s/o. Baluram, Rajendra s/o. Sugad Singh, Prakash s/o. Moturam and Devendra s/o. Girdhari, have preferred D.B. Criminal Appeal No. 1431/2007. We have been told that Hanuman s/o. Godsingh died on 16.6.2014. 2. By filing these two appeals, the accused appellants have assailed the judgment dated 27.6.2007, rendered by the court of Additional Sessions Judge, Kotputli, District Jaipur, whereby, the trial Judge convicted Girdhari s/o. Behari, Ramniwas s/o. Madan, Sube Singh s/o. Madan, Rajendra @ Deena s/o. Hanuman, Rajendra s/o. Banshidhar, Sawai Singh s/o. Matusingh, Mahesh s/o. Madan, Devendra s/o. Girdhari, Moolchand s/o. Prabhat, Madan s/o. Behari, Prakash s/o. Motu, Rajendra s/o. Sugad Singh, Hanuman s/o. Godsingh, Rameshwar s/o. Bhagwana, Roshan s/o. Bhagwana, Sheoram s/o. Baluram, Mahesh s/o. Ramkaran, Arjun s/o. Sardara, for the offences under sections 148, 325/149, 324/149, 323/149, 427, 455/149, 302/149 IPC. Vide separate order of even date, the appellants were sentenced as under:- Accused-Girdhari s/o. Behari, Ramniwas s/o. Madan, Sube Singh s/o. Madan, Rajendra @ Deena s/o. Hanuman, Rajendra s/o. Banshidhar, Sawai Singh s/o. Matusingh, Mahesh s/o. Madan, Devendra s/o. Girdhari, Moolchand s/o. Prabhat, Madan s/o. Behari, Prakash s/o. Motu, Rajendra s/o. Sugad Singh, Hanuman s/o. Godsingh, Rameshwar s/o. Bhagwana, Roshan s/o. Bhagwana, Sheoram s/o. Baluram, Mahesh s/o. Ramkaran, Arjun s/o. Sardara: U/s. 148 IPC- To suffer one and a half years R.I. U/s. 325/149 IPC- To suffer two years' R.I., and pay a fine of Rs. 5,00/- each, in default of payment of fine to further undergo three months' R.I. U/s. 324/149 IPC- To suffer one year's R.I., and pay a fine of Rs. 2,00/- each, in default of payment of fine to further undergo two months' R.I. U/s. 323/149 IPC- To suffer six months' R.I. and pay a fine of Rs. 2,00/- each, in default of payment of fine to further undergo two months' imprisonment. U/s. 427 IPC- To suffer six months' R.I. and pay a fine of Rs. 2,00/- each, in default of payment of fine to further undergo two months' R.I. U/s. 323/149 IPC- To suffer six months' R.I. and pay a fine of Rs. 2,00/- each, in default of payment of fine to further undergo two months' imprisonment. U/s. 427 IPC- To suffer six months' R.I. and pay a fine of Rs. 5,00/- each, in default of payment of fine to further undergo two months' R.I. U/s. 455/149 IPC- To suffer three years' R.I. and pay a fine of Rs. 5,00/- each, in default of payment of fine to further undergo six months' R.I. U/s. 302/149 IPC- To suffer life imprisonment and pay a fine of Rs. 10,000/- each, in default of payment of fine to further undergo two years' R.I. 3. However, the trial Judge, acquitted Rohitash s/o. Moolchand, Deshraj s/o. Matadeen, Chhitar s/o. Sugad, Lalchand s/o. Devi Sahai, Ashok s/o. Bagdawat Singh, Prakash s/o. Moolchand @ Moola, Jagdish s/o. Makkhan, Moola s/o. Deena, Ramjilal s/o. Bhagwana, Ramnath s/o. Narayan, Jagdish s/o. Bhaguta, Puran s/o. Devi Sahai, Sundaram s/o. Maturam, Sunil s/o. Hanuman Singh, Bhagwana s/o. Deena, Puran s/o. Bhagwana, Ramniwas s/o. Sagra, Gyanchand s/o. Sagra, Bhawani s/o. Gokul Singh, Jai Singh s/o. Sultan, Gugan Singh s/o. Jai Singh, Sardara s/o. Gheesa, Gheesa s/o. Bhola, Subhash s/o. Moola, Raj Singh s/o. Bagdawat Singh, Ajay Singh s/o. Bagdawat Singh, Madan Singh s/o. Mool Singh, Pusa Ram s/o. Ramnath, Ruda @ Madan s/o. Bhaguta, Hardayal s/o. Shri Ram, Kailash s/o. Sohan Lal, of offences under Sections 148, 325/149, 324/149, 323/149, 427, 455/149 and 302/149 IPC. State of Rajasthan, sought a leave to appeal to assail the acquittal of above 31 persons. 4. In all, the prosecution had sent fifty-one persons for the trial, in a case arising out of FIR No. 343/2001, registered at police station Kotputli, Jaipur, for offence under Sections 147, 148, 149, 341, 323, 307, 302, 427 and 448 IPC. Out of fifty-one persons sent for trial, two accused, namely Matu Singh s/o. Moola, and Bagdawat Singh s/o. Mool Singh, had died during the trial. The trial Judge acquitted thirty-one persons and convicted eighteen persons. As stated earlier, eighteen persons convicted, have filed two separate appeals, whereas, the State of Rajasthan, after grant of leave to appeal, had instituted D.B. Criminal Appeal No. 1183/2008 to challenge the acquittal of the respondents to the State appeal. The trial Judge acquitted thirty-one persons and convicted eighteen persons. As stated earlier, eighteen persons convicted, have filed two separate appeals, whereas, the State of Rajasthan, after grant of leave to appeal, had instituted D.B. Criminal Appeal No. 1183/2008 to challenge the acquittal of the respondents to the State appeal. By this common judgment, we shall decide all the three appeals, together. 5. In the present case, criminal proceedings were set into motion on presentation of written complaint (Exhibit-P/2) by Gajraj Singh (P.W.5). Gajraj Singh had presented the written report (Exhibit-P/2) on 12.5.2001 at 7:30 PM at BDM Hospital, Kotputali, before Gopi Singh (P.W.32), SHO, Police Station Kotputli. On the basis of written report (Exhibit-P/2), formal FIR (Exhibit-P/56) was registered at the police station on 12.5.2001 at 8:00 PM. Thus, it is to be noted that in the present case, occurrence had taken place on 12.5.2001 at 5/6 PM and the written complaint was submitted by Gajraj Singh (P.W.5) on 12.5.2001 at 7:30 PM and the case was registered at police station Kotputli, on 12.5.2001 at 8:00 PM. The special report at the same place, i.e. Kotpuli reached the concerned Illaqa Magistrate on 14.5.2001 at 8:00 AM. The special report was carried by the Constable, Rajendra Yadav (P.W.38). The written report (Exhibit-P/2), when translated into English, reads as under:- "To, SHO, Police Station Kotputli, Sir, Today, i.e. on 12.5.2001 at about 5/6 PM, on the land which is on lease with me, have raised permanent boundary by affixing bamboos. I have also filled foundation of the house. Towards north of my land, there is a public passage (Rasta-e-aam). Girdhari s/o. Behari, Madan s/o. Behari, Sube Singh, Ramniwas, Mahesh s/o. Madan, Devendra s/o. Girdhari, their nephews Kailash, Sohan, Rajendra s/o. Bansidhar, after removing bamboos, by digging foundation were doing brick work. On learning, I along with Moolchand Yadav s/o. Richhpal Yadav, former Sarpanch, on tractor reached at the spot to restrain those person and told them that the case is already pending in the court. Therefore, they should not carry the brick work. Feeling annoyed, Girdhari and Madan, immediately started causing injuries to Mool Chand with lathi and Barchhi. Girdhari called the other persons who were concealing themselves. He exhorted them saying "Kill them. Therefore, they should not carry the brick work. Feeling annoyed, Girdhari and Madan, immediately started causing injuries to Mool Chand with lathi and Barchhi. Girdhari called the other persons who were concealing themselves. He exhorted them saying "Kill them. Today, there is an opportunity and they will forget to institute a case." On calling of Girdhari, the other persons, namely Ramnath s/o. Narayan, Pusaram s/o. Ramnath, Jagdish s/o. Bhagutaram, Ramniwas s/o. Sagraram, Moolchand s/o. Prabhat, Mahesh s/o. Ramkaran, Arjun s/o. Sardara, Sheoram s/o. Baluram, Hanuman s/o. Godsingh, Deenaram s/o. Hanuman, Anil s/o. Hanuman, Sunil s/o. Hanuman, Sawai Singh s/o. Matusingh, Deshraj s/o. Maturam, Sundaram s/o. Maturam, Maturam s/o. Moolaram, Bhawani Singh s/o. Gokul Singh, Madan Singh s/o. Mool Singh, Bhagwana s/o. Deena Meena, Moola s/o. Deena Meena, Rameshwar, Roshan, Hariram, Ramji Lal, Puran, Bhagwana Meena, Prakash, Rohitash, Raghuveer, Moola Meena, Rajendra s/o. Sugad Singh, Chhitar s/o. Sugad Singh, Jai Singh s/o. Sultan Thakur, Gugan Singh s/o. Jai Singh, Raj Singh s/o. Bagdawat Singh, Ajay, Ashok s/o. Bagdawat Singh, Bagdawat Singh s/o. Mool Singh, Gyan Chand s/o. Sugadaram, Ruda Ram s/o Bhaguta, Puran s/o Devi Sahai, all armed with lathis and Farsi came out of their hiding and encircled Gajraj and Mool Chand Yadav from all the corners. On hearing over entreaties, Gheesaram, Rajkumar, Rohitash, Ramotar, Radheyshyam and Raghuveer Bawariya, were attracted at the spot. They were also caused injuries with lathis and Farsi. Mool Chand due to receipt of injuries died at the spot. Other also received grievous injuries. Seeing them bleeding and seing people of the village coming, all the accused decamped from the spot. They had also caused damage to the tractor. Those who received injuries are in the hospital. Dead body of Mool Chand is lying at the spot." 6. A perusal of the written complaint reveals that initially attack was made by Girdhari and Madan and they had caused injuries to Mool Chand, the deceased, with lathi and Barchhi. Subsequent thereto, other persons were attracted to the spot, and they had caused injuries to all the other persons including eight persons, namely Gheesa Ram (P.W.1), Rajkumar (P.W.2), Lal Chand (P.W.3), Ramotar (P.W.4), Gajraj Singh (P.W.5), Radheyshyam (P.W.6), Rohitash (P.W.7). 7. Raghuveer (P.W.10), another injured, when examined has turned hostile to the prosecution, he was duly confronted with his previous statement by public prosecutor. 8. 7. Raghuveer (P.W.10), another injured, when examined has turned hostile to the prosecution, he was duly confronted with his previous statement by public prosecutor. 8. The prosecution in all had examined forty-six witnesses, whereas the accused in their defence had examined twelve witnesses. The prosecution relied upon 109 documents and photographs (Exhibit-P/105-A). 9. For decision of these three appeals, we shall confine ourselves to testimonies of Gheesa Ram (P.W.1), Rajkumar (P.W.2), Lal Chand (P.W.3), Ramotar (P.W.4), Gajraj Singh (P.W.5), Radheyshyam (P.W.6), Rohitash (P.W.7). 10. Dr. Girwar Singh Meena (P.W.16), on 13.5.2001, conducted autopsy on the dead body of Mool Chand. He proved the post mortem report (Exhibit-P/31). Injury No.1 was incised wound measuring 5cm x 0.5 cm, bone deep on right parietal region placed transversely. Injury No.2 was 'L' shaped lacerated wound, measuring 3cm x 1cm, bone deep placed in occipital region. Injury No.3 was lacerated wound, measuring 3cm x 0.5cm, bone deep on the right side of forehead, due to which there was discharge of blood from the nostrils. Rest of the injuries were abrasions and bruises on the various parts of the body. On opening of skull, haematoma of 3cm size was found beneath right frontal bone. Another haematoma of 5cm size was present on the right parietal region and haematoma of 7cm x 4cm size was found in the occipital region. There was a linear fracture near right parieto-occipital bone and there was presence of subdural haematoma. As per opinion of the Medical Board, cause of death is neurogenic shock due to head injury. All the injuries were found ante mortem in nature. 11. On person of Rajkumar (P.W.2), three simiple injuries were found and the same were proved vide medico-legal report (Exhibit-P/32). On person of Gajraj Singh (P.W.5), three simple injuries were found vide medico-legal report (Exhibit-P/33). Similarly, Gheesa Ram (P.W.1) had received two simple injuries and his medico-legal report was brought on record as Exhibit-P/34. Raghuveer (P.W.10), who was declared hostile, had received two abrasions and both were declared simiple in nature vide medico-legal report (Exhibit-P/35). Rohitash (P.W.7) had received five injuries. Injury No.1 was fracture of left ulna, whereas remaining four injuries were declared simple in nature, vide medico-legal report (Exhibit-P/36). Radheyshyam (P.W.6) had received two injuries, both were simple in nature, his medico-legal report is (Exhibit-P/37). Ramotar (P.W.4) had received two injuries both simple in nature, vide his medico-legal report (Exhibit-P/38). Rohitash (P.W.7) had received five injuries. Injury No.1 was fracture of left ulna, whereas remaining four injuries were declared simple in nature, vide medico-legal report (Exhibit-P/36). Radheyshyam (P.W.6) had received two injuries, both were simple in nature, his medico-legal report is (Exhibit-P/37). Ramotar (P.W.4) had received two injuries both simple in nature, vide his medico-legal report (Exhibit-P/38). Lalchand (P.W.3) had received two abrasions on his person, both the injuries were declared simple in nature, vide his medico-legal report (Exhibit-P/39). 12. Thus, a perusal of medico-legal examination report, reveals that eight persons had received simple injuries except, one injury on the person of Rohitash, which is a fracture of left ulna bone. Similarly, out of thirteen injuries received by Mool Chand, Injury No. 1 to 3 were present on head. Initially in the first version, which has emerged in the FIR and is spontaneous, the injuries on the person of Mool Chand deceased are attributed to Girdhari s/o. Behari and Madan s/o. Behari. All witnesses have stated in the court that Girdhari was armed with Barchhi (spear) and Madan was armed with lathi. 13. Mr. Ashvin Garg and Mr. Sudhir Jain, the counsel appearing for the appellants, have urged before us that Mool Chand had died on the spot. It has come in the FIR that his dead body was lying at the spot. Therefore, on 12.5.2001, at 8:00 PM, FIR was registered for the offence under Section 302 IPC itself. It is stated that the police station Kotputli and the court of the Magistrate, are situated in close vicinity and they are in the same town. Therefore, no cogent explanation has been furnished by the prosecution as to why special report reached the concerned area Magistrate after 36 hours. It is urged before us that the delay in reaching special report should be construed adversely, as a result of consultations and deliberations, the witnesses have concocted a false version by inflating number of accused. It is urged before us that it is a case of large scale over implication of the accused. 14. It is contended that eight injured witnesses had suffered in all twenty-two injuries and the deceased suffered thirteen injuries. For thirty-five injuries, fifty-one persons have been implicated. 15. Mr. N.S. Dhakad, the learned Public Prosecutor and Mr. It is urged before us that it is a case of large scale over implication of the accused. 14. It is contended that eight injured witnesses had suffered in all twenty-two injuries and the deceased suffered thirteen injuries. For thirty-five injuries, fifty-one persons have been implicated. 15. Mr. N.S. Dhakad, the learned Public Prosecutor and Mr. Rinesh Gupta, appearing for the complainant, have urged that since all the accused constituted an unlawful assembly, they are liable to be convicted with the aid of Section 149 IPC. 16. After examining the evidence, we find that no doubt in the present case, the complainant and his witnesses have falsely implicated number of persons. As who were falsely implcated, we have been saved to carry out this exercise, as all the witnesses in the court have not named all fifty-one accused, but has confined the number and names of the accused to nineteen or twenty one or twenty four persons only. 17. Gajraj Singh (P.W.5) in the court has only named twenty-two persons, i.e. Girdhari s/o. Behari, Devendra s/o. Girdhari, Madan s/o. Behari, Sube Singh s/o. Madan, Ramnath s/o. Madan, Mahesh s/o. Madan, Rajendra s/o. Banshi, Hanuman s/o. Gohan Singh, Deena @ Rajendra s/o. Hanuman, Sunil s/o. Hanuman, Rajendra s/o. Sugad Singh, Sawai Singh s/o. Matu Singh, Prakash s/o. Motu, Subhash s/o. Moola, Bhagwana Meena s/o. Deena Meena, Rameshwar s/o. Bhagwana Meena, Roshan s/o. Bhagwana Meena, Jagdish s/o. Makkhan, Sheoram s/o. Balu, Moola s/o. Prabhat, Mahesh s/o. Ramkaran. Furthermore, the trial court had disected the case of persons who were not named by the witnesses in the court and who have not been assigned any injury. Furthermore, the trial court had disected the case of persons who were not named by the witnesses in the court and who have not been assigned any injury. It will be apposite for us to reproduce well reasoned finding given by the trial court in Para 132 and 135 of the impugned judgment, as under:- " 132- lk{kh xtjkt ih0M0 5 us izFke lwpuk fjiksVZ esa 47 O;fDr uketn fd;s Fksa fdUrq U;k;ky; esa vkdj mlus dqy 21 O;fDr;ksa dks ?kVuk esa lafyIr crk;k gS yxHkx oSlh gh ckr vU; ?kk;y ?khlkjke] jktdqekj] jkeksrkj] jk/ks';ke] jksfgrk'k] ykypan Hkh dgdj x;s gSaA ih0M+0 20 jkes'oj us eqyfteku dh la[;k 18&19 ds vklikl crk;h gSA vfHk;kstu dh i=koyh ij miyC/k lk{; ds vk/kkj ij fxj/kkjh iq= fcgkjh] jkefuokl iq= enu] lqcsflag iq= enu] nhuk mQZ jktsUnz iq= guqeku flag] jktsUnz iq= ca'kh] lokbZflag iq= ekrwflag] egs'k iq= enu] nsosUnz iq= fxj/kkjh] ewyk iq= izHkkr] enu iq= fcgkjh] izdk'k iq= eksBw] jktsUnz iq= lqXxMflag] guqekuflag iq= xksnflag] jkes'oj iq= Hkqxokuk] jks'ku iq= Hkxokuk] ';ksjke iq= ckywjke] egs'k iq= jkedj.k] vtqZu iq= ljnkjk dh fof/k fo:) lEesyu ds lnL; ds :i esa ?kVuk LFky ij mifLFkfr ,oa muds ;ksxnku ;qfDr;qDr lansg ls ijs lkfcr gks jgs gSa D;ksafd fxj/kkjh }kjk /kkjnkj gfFk;kj Qjlh dks ewypan ds flj esa nka;h rjQ jkethyky ds edku ds ckgj ekjs tkus dh iqf"V ih0M01 ls ih0M0 7 o ih0M0 20 ls gqbZ gS ,oa MkWDVj fxjoj flag dh lk{; 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us iq"B fd;k gSA vfHk;qDr nsosUnz ds gkFk dh ykBh dh pksV ih0M0 1 ls ih0M0 7 us ewypan ds nka;s iSj ds ?kqVus ij ekjs tkuk iq"B fd;k gS] iksLVekVZe fjiksVZ ,oa MkW0 fxjojflag dh lk{; ls iq"B gqvk gSA ewyk iq= izHkkr vfHk;qDr ds gkFk dh ewypan ds nka;s iSj ds V[kus ds ikl lCcy dh yxuk ih0M0 1 ls ih0M0 7 ,oa ih0M0 20 us iq"B fd;k gS rFkk iksLVekVZe fjiksVZ o MkW0 fxjojflag dh lk{; ls iqf"V gksrh gSA vfHk;qDr enu iq= fcgkjh ds gkFk dh ykBh dh pksV ewypan ds cka;s iSj ds ?kqVus ds ikl ekjs tkuk ih0M0 1 ls ih0M0 7 us iq"B fd;k gS ftldh iqf"V MkW0 fxjojflag dh lk{; ls gksrh gS rFkk lk{kh jksfgrk'k ih0M0 7 ds flj esa cka;h rjQ pksV bl lk{kh ds ekjs tkuk jksfgrk'k dh lk{; ls rFkk mlds pksV izfrosnu o MkW0 fxjojflag dh lk{; ls iq"B gksrk gSA izdk'k iq= eksBw vfHk;qDr ds gkFk dh ykBh dh pksV ewypan ds cka;s iSj ds ?kqVus ds uhps ih0M0 1 ls ih0M0 7 us ekjk tkuk iq"B fd;k gS ftldk vuqleFkZu MkW0 fxjojflag dh lk{; ls o iksLVekVZe fjiksVZ ls gqvk gSA vfHk;qDr jktsUnz iq= lqXxM flag ds gkFk dh ewypan ds cka;s iSj ds V[kus ij ykBh dh yxuk ih0M0 1 ls ih0M0 7 ,oa ih0M0 20 dh lk{; ls i`"B gqvk gS rFkk iksLVekVZe fjiksVZ o MkW0 fxjojflag dh lk{; ls mldh iqf"V gqbZ gSA vfHk;qDr guqeku flag iq= xksnflag Hkh izFke lwpuk fjiksVZ esa uketn gSaA mlds gkFk dh ykBh dh pksV ewypan ds yxuk ihM0 1 ls ih0M0 7 crkdj x;s gSaA fdl Hkkx ij yxh ,slk Li"V ugha dj ik;k gSA eqyfte dh lwpuk ij cjken ykBh ij [kwu QnZ tCrh ij crk;k gS lhycUn gkyr esa mls fof/k foKku iz;ksx'kkyk tfj;s izn'kZ ih0 54 tek djok;s tkuk ij tkap ds ckn esa ,Q0,l0,y0 fjiksVZ dk tks urhtk vk;k gS mlesa eqyfte us cjken ykBh ij Hkh ekuo jDr ik;k x;k gS rFkk urhtk vk;k gS mlesa eqyfte ls cjken ykBh ij Hkh ekuo jDr ik;k x;k gS rFkk ewypan ds ikpsatkr ,oa [kwuluh feV~Vh ij Hkh ekuo jDr ik;k x;k gSA blds vykok lk{kh jk/ks';ke ih0M0 6 us vius nk;s iSj ij bl vfHk;qDr ds gkFk dh ykBh dh pksV yxuh iq"B dh gS ftldh iqf"V pksV izfrosnu ,oa MkW0 fxjojflag ds c;kuksa ;s gqbZ gSA vfHk;qDr jkes'oj ,Q vkbZ vkj esa Hkh uketn gS ewypan ds 'kjhj ij ekjs tkuk fdlh xokg ds c;kuksa esa ugha vk;k gS fd bl vfHk;qDr us ewypan ds fdl Hkkx ij ekjh fdUrq fof/k fo:) lEesyu ds lnL; dh gSfl;r ls mldh ?kVuk LFky ij mifLFkfr bl dkj.k ls gks jgh gS fd ih0M0 1 ls ih0M0 7 lHkh us mldh ogkWa mifLFkfr crk;h gS vkSj xtjkt ih0M0 5 us mlds gkFk dh ykBh dh pksaV Lo;a ds cka;s iSj ds vaxwBs ij ekjk tkuk i`"B fd;k gS ftldh i`f"V mlds pksV izfrosnu o MkW0 fxjojflag ds c;kuksa ls Hkh gksrh gSA vfHk;qDr jks'ku Hkh izFke lwpuk fjiksVZ esa uketn gS mldh ?kVuk LFky ij mifLFkfr ih0M0 1 ls ih0M0 7 lHkh us crk;h gSA ewypan ds 'kjhj ij fdlh vax ij pksV rks mlds gkFk dh ekjs tkus dk C;ksjk bu xokgksa ds c;kuksa esa ugha vk;k gS fdUrq fof/k fo:) lEesyu ds lnL; ds :i esa mldh mifLFkfr dk lanHkZ bu lHkh xokgksa ds c;kuksa esa rks vk;k gh gS mlds lkFk lkFk gh ih0M0 1 ?khlk us vius cka;s ?kqVus ij bl vfHk;qDr }kjk ykBh dh pksV ekjs tkuk iq"B fd;k gS ftldh iqf"B fd;k gS ftldh iqf"V pksV izfrosnu o MkW0 fxjojflag ds c;kuksa ls Hkh gksrh gSA vfHk;qDr ';ksjke izFke lwpuk fjiksVZ esa Hkh uketn gS mldh mifLFkfr ih0M0 1 ls ih0M0 7 lHkh us ?kVuk LFky ij crk;h gSA ewypan ds 'kjhj ds fdlh vax ij bl eqyfte }kjk ekjs tkus dk dksbZ Li"V lUnHkZ fdlh xokg ds c;kuksa esa ugha vk;k gS fdUrq fof/k lEesyu ds lnL; ds :i esa ?kVuk LFky ij bl vfHk;qDr dh mifLFkfr mDr lHkh xokgksa us rks crkbZ gh gS mlds lkFk&lkFk mldh mifLFkfr dh iqf"V bl ckr ls Hkh gksrh gS fd xtjkt us vius cka;s gkFk ykBh dh pksV bl eqyfte }kjk ekjs tkuk lkfcr fd;k gS ftldh iqf"V mlds pksV izfrosnu o MkW0 fxjojflag dh lk{; ls gksrh gSA vfHk;qDr egs'k iq= jkedj.k izFke lwpuk fjiksVZ esa uketn gSA ih0M01] ih0M02] ih0M03] ih0M04] ih0M06 lHkh mldh ?kVuk LFky ij mifLFkfr crkrs gSa ,slk Li"V lanHkZ rks ugha vk;k gS fd mlds gkFk dh ewypan ds fdl vax fo'ks"k ij pksV yxh gS fdUrq mldh mifLFkfr ?kVuk LFky ij bl dkj.k ls Hkh izekf.kr gks jgh gS fd jkeksrkj ih0M0 4 us egs'k ds gkFk dh ykBh dh pksV vius cka;s gkFk ij crkbZ gS ftldh iqf"V mlds pksV izfrosnu o MkW0 fxjojflag ds lk{; ls gksrh gSA ;gkWa ;g Li"V dj nsuk mi;qZDr le>rk gwWa fd bl ekeys esa egs'k uke ds nks vfHk;qDr uketn gSa ,d egs'k ds firk dk uke enu gS] ftlds gkFk esa ;g xokg ,ao vU; xokg xsarh crkdj vk;s gSa] nwljs egs'k ds gkFk esa ykBh crkdj vk;s gSa bl n`f"V ls egs'k iq= jkedj.k ds lEcU/k esa gh bl xokg dk ;g dFku fd;k gqvk yxrk gSA mlh ds gkFk dh ykBh dh pksV vius cka;s gkFk ij crkbZ gS ftldh iqf"V pksV izfrosnu o MkW0 fxjojflag us dh gSA vfHk;qDr vtqZu izFke lwpuk fjiksVZ esa uketn gS mldh mifLFkfr dk vU; fdlh xokg c;kuksa esa lanHkZ ugha gSA ih0M0 1 ?khlk us mldh mifLFkfr crkrs gq, bl vfHk;qDr }kjk vius flj esa pksV ekjuk crk;k gS ftldh iqf"V mlds pksV izfrosnu o MkW0 fxjojflag dh lk{; ls i`"B gqbZ gS blfy, mldh mifLFkfr ?kVuk LFky ij oDr ?kVuk izekf.kr gks jgh gSA 135- vfHk;qDr lquhy iq= guqeku] Hkxokuk iq= nhuk jke izFke lwpuk fjiksVZ esa rks uketn gS rFkk buds fo:) pktZ'khV Hkh is'k dh xbZ gS rFkk ihih0M0 1] 2] 3] 4] 5] 6] 7 ds c;kuksa esa mudh mifLFkfr dk ftdz Hkh vk;k gS fdUrq tgkWa rd lquhy dk loky gS mlds gkFk dh dksbZ pksV ewypan ds fdlh vax ij crkbZ ugha xbZ gS u gh njoktk rksM+us esa] Vs~DVj rksM+us esa mldk Li"V :i ls lanHkZ vk;k gSA ?kk;y jktdqekj ds 'kjhj ij ykBh dh pksV flj esa lquhy vfHk;qDr }kjk ekjs tkuk og dgdj x;k gS fdUrq ,slh dksbZ pksV mlds flj ij mlds pksV izfrosnu esa ugha ikbZ xbZ gS u gh MkWDVj us ikbZ gSA vfHk;qDr Hkxokuk dh ifLFkfr dk ftdz ih0M0 1 ls ih0M0 7 djds x;s gSa fdUrq mlds gkFk dh Hkh dksbZ pksV ewypan ds 'kjhj ds fdlh vax ij ekjs tkus dks lanHkZ ugha vk;k gSA mldh mifLFkfr n'kkZus ds fy, ykypan ih0M0 3 us mlds gkFk dh ykBh dh pksV viuh ihB ij yxuh crkbZ gS fdUrq mlds pksV izfrosnu izn'kZ 39 esa ihB ij dksbZ pksV ugha crkbZ gS MkW0 fxjojflag us Hkh iqf"V ugha dh gSA tc lqfuy vkSj Hkxokuk ds gkFk dh dksbZ pksV ewypan ds 'kjhj ij ugha crkbZ tkrh] VsDVj rksM+us esa] jkethyky ds edku dk njoktk rksM+us esa dksbZ Li"V lanHkZ ugha vk;k gS] mudh mifLFkfr ogkWa n'kkZus ds fy, ftu ?kk;yksa us muds gkFkksa dh pksVsa vius 'kjhj ij crkbZ gS muds 'kjhj ij ,slh pksVsa ikbZ ugha xbZ gSa rFkk izFke lwpuk fjiksVZ esa 47 eqyfte uketn fd;s x;s gSa] U;k;ky; esa vkdj dksbZ xokg 21] dksbZ 18&19 O;fDr crk jgk gS bl fLFkfr dks ns[krs gq, lquhy vkSj Hkxokuk vfHk;qDrx.k dh esjh jk; esa ?kVukLFky ij mifLFkfr ;qfDr;qDr lansg ls ijs izekf.kr ugha gSA " 18. The learned Public Prosecutor and the counsel for the complainant, could not advance any tenable argument as to why we should set aside the acquittal of the respondents to the State appeal as the witnesses at best have not named more than twenty-four persons. It is to be noted that some witnesses have named only twenty-one persons as accused, another as 24 persons or others as 18/19 accused. Since the trial court, after analyzing evidence, convicted eighteen persons, we will not disturb the acquittal of the respondents to State Appeal preferred by State of Rajasthan [D.B. Criminal Appeal No. 1183/2008]. Thus, taking into consideration delay in reaching of the special report and the fact that witnesses have improved their case in the court, from the first version given in the FIR in the statements made before the police u/s 161 Criminal Procedure Code.we find no merit in the appeal preferred by the State of Rajasthan. Hence, we dismiss the state appeal, i.e. D.B. Criminal Appeal No. 1183/2008 [State of Rajasthan v. Rohitash & Ors.] , without causing any interference. 19. What is the effect of delay in reaching of special report, this question has been raised by the counsel for the appellants to urge that we should throw the entire case of the prosecution. Taking totality of evidence which has emerged before us, we are of the considered opinion that delay in reaching of special report, per se, is not fatal to the case of the prosecution. The Hon'ble Supreme Court in the case of Bijoy Singh & Anr. v. State of Bihar, 2002 (9) SCC 147 . , while considering the effect of reaching of special report, has observed as under:- "6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. 8. In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be"and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said reprt in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission. " 20. In the light of the observations, made by the Hon'ble Supreme Court in the case of Bijoy Singh (supra), we cannot rule out that in the present case, testimony of eyewitnesses suffered from embelishment and same is result of after thought, thus by applying rules of prudence, we shall sift grain from the chaft. 21. By granting maximum leeway to the prosecution, we shall accept the version given in the FIR, same being spontaneous. Specific injuries in the FIR have been attributed to Girdhari s/o. Behari Lal, appellant No. 4, and Madan s/o. Behari, appellant No. 8 to D.B. Criminal Appeal No. 1420/2007. To similar effect is the statement made u/s 161 Cr.P.C. by the witnesses before the police. Initial version has been brought on record by confronting the witnesses with their previous statements recorded u/s 161 Cr.P.C. by the police. It is later that the witnesses have assigned three injuries on the head of Mool Chand to Girdhari, Ramniwas and Sube Singh. The witnesses have made departure from the case in FIR and their police statement. It is not a case of simple deviation but the witnesses in court have created entirely new version. 22. Gheesa Ram (P.W.1) stated that Mool Chand had gone inside the house of Ramji Lal. The witnesses have made departure from the case in FIR and their police statement. It is not a case of simple deviation but the witnesses in court have created entirely new version. 22. Gheesa Ram (P.W.1) stated that Mool Chand had gone inside the house of Ramji Lal. Accused dragged him and then Girdhari gave an injury on right side of head of Mool Chand, due to which he fell down and then Ramniwas gave a Barchhi blow to Mool Chand and thereafter, Sube Singh caused injury with Sambal on the back side of the head of Mool Chand. 23. In cross-examination, this witness stated that police inquired him about the occurrence on 12.5.2001 and 13.5.2001. This witness was duly confronted with the statement under Section 161 Cr.P.C. This witness stated that he had not stated to police that Girdhari and his brother Madan, had caused injuries to Mool Chand. The witness was duly confronted with the statement recorded under Section 161 Cr.P.C. regarding the improvement made by him in the court. It is to be noted that in his initial version to police under Section 161 Criminal Procedure Code.this witness has attributed injuries on person of Mool Chand to Girdhari and Madan. 24. Similarly, Rajkumar (P.W.2) in the court attributed three injuries on the head of Mool Chand to Girdhari, Ramniwas and Sube Singh. This witness was also confronted with the statement recorded by police under Section 161 Cr.P.C. This witness stated that he had told the police that deceased Mool Chand was dragged from the house of Ramji Lal. As to why this was not recorded in the statement recorded under Section 161 Criminal Procedure Code.the witness could not give any explanation. Thus, defence by confronting the witness with the statement recorded under Section 161 Cr.P.C. has duly proved that this witness has also improved the case for prosecution and had unnecessarily attributed injuries to Ramniwas and Sube Singh. The witness could not furnish any reasonable explanation as to why from the initial version, wherein injuries to Mool Chand were attributed to Girdhari and Madan, he had shifted the case from initial version. 25. To save ourselves from the repetition, we must notice that all the witnesses have been duly confronted with the statement recorded under Section 161 Cr.P.C. 26. 25. To save ourselves from the repetition, we must notice that all the witnesses have been duly confronted with the statement recorded under Section 161 Cr.P.C. 26. We reproduce the following version of the statement of Gajraj Singh (P.W.5) to highlight the blemish from which all witnesses suffered, in their testimony recorded by the court. izn'kZ& 5 essa ,s ls ch Hkkx esa ;g ughs fy[kk;k fd tSls gh ge igqap uho Hkjus o fpukbZ dk dke can djus ds fy, dgk rks fxj/kkjh o enu ftuds gkFkksa esa ykBh o Qjlh Fkh] ekjihV 'kq: dj nh] eSaus ,slk c;ku iqfyl dks ugha fn;kA iqfyl c;ku izn'kZ&5 esa lh ls Mh esa tksj ls vkokt nsus yxk& egs'k fuoklh iokuk vk x,** lqudj dgk fd ,slk c;ku fy[kk;k ;k ugha /;ku ugha------------------ " 27. Thus, noticing that after recording of the FIR, the complainant, Gajraj Singh (P.W.5) and other witnesses have made deviation from their statements recorded under Section 161 Cr.P.C. on 12.5.2001, and 13.5.2001. We are of the view that such departure on the part of the witnesses is to be taken with a pinch of salt. They had made no effort to bring to notice of any authority that police had recorded their incorrect statements. For the first time, they have shifted their version in the court by making material improvements. We are of the view that it is safe to lend credence to the version contained in the FIR and the statement made by witnesses to the police, as subsequent improvement made by witnesses in the court is to be ignored. Especially, when we are of opinion that the departure on the part of the witnesses has been duly brought on record by the defence by confronting the witnesses. Thus, we hold that Mool Chand was caused injuries by Girdhari s/o. Behari Lal and Madan s/o. Behari Lal, and they are responsible for his death. 28. Especially, when we are of opinion that the departure on the part of the witnesses has been duly brought on record by the defence by confronting the witnesses. Thus, we hold that Mool Chand was caused injuries by Girdhari s/o. Behari Lal and Madan s/o. Behari Lal, and they are responsible for his death. 28. Taking the version, which has emerged in the FIR, we are of the view that remaining appellants [Rajendra Singh @ Deena s/o. Hanuman Singh, Sawai Singh s/o. Matusingh, Rameshwar s/o. Bhagwana, Rajendra Prasad s/o. Banshidhar, Ram Niwas s/o. Madanlal, Moolchand s/o. Prabhat, Sube Singh s/o. Madan, Roshan Lal s/o. Bhagwana, Hanuman Singh s/o. Godsingh, Mahesh s/o. Madanlal, Arjun s/o. Sardara, Mahesh s/o. Ramkaran, Sheoram s/o. Baluram, Rajendra s/o. Sugad Singh, Prakash s/o. Moturam, Devendra s/o. Girdhari] had reached at the spot while injuries had already been caused to Mool Chand and Gajraj Singh. Therefore, there is no denying the fact that in the present case, dispute was over the possession of the land. The accused had gone to the spot to assert their possession over the land and in process thereto, the common object of unlawful assembly was to give sound thrashing or beating to anybody who may restrain the accused from establishing their possession over the land. Since all the appellants, except Girdhari and Madan, had caused injuries after injuries were caused to deceased Mool Chand, who had already received fatal injuries and thereafater remaining accused had caused simiple injuries to the witnesses, except one injury on the person of Rohitash, which is fracture of left ulna bone, attributed to Mahesh s/o. Madan Lal. Hence, we are of the view that it is not safe to uphold the conviction of Rajendra Singh @ Deena s/o. Hanuman Singh, Sawai Singh s/o. Matusingh, Rameshwar s/o. Bhagwana, Rajendra Prasad s/o. Banshidhar, Ram Niwas s/o. Madanlal, Moolchand s/o. Prabhat, Sube Singh s/o. Madan, Roshan Lal s/o. Bhagwana, Hanuman Singh s/o. Godsingh, Mahesh s/o. Madanlal, Arjun s/o. Sardara, Mahesh s/o. Ramkaran, Sheoram s/o. Baluram, Rajendra s/o. Sugad Singh, Prakash s/o. Moturam, Devendra s/o. Girdhari, for the offence under Section 302/149 IPC, as we are of the firm view that common object of the unlawful assembly was to give beating, sound thrashing and to cause grievous injuries in order to establish possession over the land and not to commit murder. Girdhari s/o. Behari Lal and Madan s/o. Behari Lal, exceeded the common object of the assembly and alone are responsible for murder of Mool Chand for offence under Section 302/34 IPC. At cost of repetition, we say again that remaining accused have caused simple injuries except one grievous injury to Rohitash (P.W.7), after fatal injuries had already been caused. 29. Therefore, after holding Girdhari s/o. Behari and Madan s/o Behari, responsible for murder, so far as the remaining appellants are concerned, namely Rajendra Singh @ Deena s/o. Hanuman Singh, Sawai Singh s/o. Matusingh, Rameshwar s/o. Bhagwana, Rajendra Prasad s/o. Banshidhar, Ram Niwas s/o. Madanlal, Moolchand s/o. Prabhat, Sube Singh s/o. Madan, Roshan Lal s/o. Bhagwana, Hanuman Singh s/o. Godsingh, Mahesh s/o. Madanlal, Arjun s/o. Sardara, Mahesh s/o. Ramkaran, Sheoram s/o. Baluram, Rajendra s/o. Sugad Singh, Prakash s/o. Moturam, Devendra s/o. Girdhari, we acquit them of offence under Section 302/149 IPC. However, we uphold their conviction for the offence under Sections 325/149, 324/149, 323/149, 427, and 455/149 IPC, we also uphold the sentence awarded to them on these counts by the trial court. 30. Consequently, the appeal preferred by Girdhari s/o. Behari Lal and Madan s/o. Behari, is dismissed. Remaining appellants are acquitted for the offence under Section 302/149 IPC by upholding their conviction and sentence for other offences. 31. We have been informed that the appellant Madan s/o. Behari and Hanuman s/o. Godsingh, have expired during the trial. We direct the trial court to hold an inquiry to this effect. In case, after recording the evidence of concerned SHO, the trial court comes to the conclusion that Madan and Hanuman have died, the present appeal qua them shall be treated as having abated.Appeals are disposed of. *******