JUDGMENT 1. -Aggrieved by the judgment dated 16.11.1990, passed by the Court of Sessions, Sikar, the accused-appellants, Arvind Kumar @ Nemichand, Surja Ram @ Surajmal, Ramnarayan, Birbal, Birju @ Brij Mohan have approached this court by filing D. B. Criminal Appeal No.449/1990. Meanwhile, aggrieved by the same judgment, the State of Rajasthan has filed D. B. Criminal Appeal No.523/1991. Since both these appeals arise out of the same impugned judgment, they are being decided by this common judgment. 2. By the said judgment the learned Judge had convicted and sentenced the accused appellants as under: Arvind Kumar @ Nemichand, Surja Ram @ Surajmal, Ramnarayan, Birbal and Birju @ Brij Mohan were convicted for offences under Sections 148, 448 IPC. Arvind Kumar @ Nemichand and Surja Ram @ Surajmal were substantively convicted for offence under Section 302 IPC; Ramnarayan, Birbal and Birju @ Brij Mohan were convicted for offence under Section 302 read with Section 149 IPC. By a separate order of even date appellants, Arvind Kumar @ Nemichand and Surja Ram @ Surajmal, for offence under Section 302 IPC, and Ramnarayan, Birbal and Birju @ Brij Mohan, for offence under Section 302 read with 149 IPC, were sentenced to life imprisonment and pay a fine of Rs. 1000/-, in default whereof they were directed to further undergo six months of additional sentence. For offence under Section 148 IPC, all the five appellants were sentenced to six months imprisonment, and for offence under Section 448 IPC they were sentenced to three months of imprisonment. All the sentences were directed to run concurrently. 3. Moreover, by the impugned judgment, the learned Judge had acquitted Arvind Kumar, Surjaram, Ramnarayan, Birbal, Brij Mohan for offences under Sections 323/149, 148, and 448 IPC. The learned Judge had also acquitted Harlal and Harphool of offences under Sections 147, 323/149, 302/149, and 447 IPC. Hence, the State of Rajasthan has filed the criminal appeal against the accused respondents. 4. Briefly, the facts of the case are that on 19.7.1989, Harlal Singh (P.W.5) lodged a written report (Ex.P.12) with the S.H.O., Police Station, Laxmangarh, Distt. Sikar. When translated into English, the said written report (Ex.P.12) reads as under: To, The SHO, Police Station Laxmangarh, Distt. Sikar Sir, It is humbly submitted that yesterday, on 18.7.1989, around midnight my brother Laduram s/o Baksaram, and his two sons, Surendra and Prakash were sleeping in the courtyard. Sikar. When translated into English, the said written report (Ex.P.12) reads as under: To, The SHO, Police Station Laxmangarh, Distt. Sikar Sir, It is humbly submitted that yesterday, on 18.7.1989, around midnight my brother Laduram s/o Baksaram, and his two sons, Surendra and Prakash were sleeping in the courtyard. My brother Ladurams brother-in-law, Chandraram, and Ramlal s/o Juwara, by caste Jat, resident of Madhopura were also sleeping with us. Ladurams elder son, Brijendra, and his younger son, Mohan, were sleeping at a separate house constructed by Brijendra on the western side of the well. Suddenly, about 20-25 persons came, cursed and dragged out Brijendra and Mohan from the homes. They started assaulting them with barchhi (small axe), bhala (spear), lathies (wooden sticks), and swords. Brijendras wife raised an alarm. Then, I, my brother Laduram, my nephews Surendra, Prakash and Chandraram, and Ramlal rushed to their rescue. We carried lathis with us. The moment we reached there, Surjaram s/o Hukumaram, by caste Jat, resident of Rehnawa, and his son, Arvind @ Nemichand said now the true enemy, Laduram has come. Saying this, both of them attacked him with farsies which they were carrying. With this, Birju s/o Khumaram, by caste Jat, resident of Khevasar, Ramnarayan s/o Rambux started attacking him. Laduram was killed at the spot; Mohan, Brijendra, Prakash, Surendra sons of Laduram, and Chandraram were badly injured. Thinking that they had expired, the accused ran away. Brijendra and Surendra in order to protect themselves, inflicted lathi blows on Arvind and Ramnarayan. Arvind and Ramnarayans companions also said, while leaving, that they had killed Tara Singh Jat of Roru, so then who are we? Those whom I have named, I know them. Others I dont know them, but I can recognise them if they were brought before me. This gang of persons had come in two jeeps; they boarded the two jeeps and went towards Navalgarh. One jeep belonged to Surjaram s/o Hukumaram, by caste Jat, r/o Rehnawa, whose registration numbers are RJB-7669. I do not know the number of the other jeep. I am submitting the report to you and pray that legal action should be taken against the culprits as soon as possible. sd/- Harlal Singh s/o Baksaram Jat Village Post, Rehnawa, Tehsil and Police Station, Laxmangarh. 5. I do not know the number of the other jeep. I am submitting the report to you and pray that legal action should be taken against the culprits as soon as possible. sd/- Harlal Singh s/o Baksaram Jat Village Post, Rehnawa, Tehsil and Police Station, Laxmangarh. 5. On the basis of the written report (Ex.P.12) the police chalked out a formal FIR (Ex.P.13), namely FIR No.124/1989 for offences under Sections 147, 148, 149, 307, 302, 323, 448 IPC against thirteen persons, namely Surjaram, Arvind, Birju, Ramnarayan, Sukhdev, Rameshwar, Mansaram, Phoolaram, Sitaram, Mahendra, Birbal s/o Kushlaram, Birbal @ Vinod son of Surjaram and Harphool Singh Master. However, after a thorough investigation of the case, the police submitted the charge-sheet only against seven persons, namely Arvind Kumar, Harlal, Ramnarayan, Birbal son of Kushla Ram, Birj Mohan @ Birju, Surjaram and Harphool Singh Master. It kept the investigation pending under Section 173(8) CrPC against Mamraj, Mansaram, Sukhdevram, Rameshwar, Phoolaram, Mahendra, Mangilal, Tarachand, Birbal @ Vinod and Murlidhar. Eventually the case was committed to the Addl. Sessions Judge No.1, Sikar. The learned Judge framed charges against those who were put up for trial for offences under Sections 147, 148, 442, 302 read with 149 and 323 read with 149 IPC. In order to support its case, the prosecution examined twenty-one witnesses and submitted fifty-nine documents. 6. After completion of the prosecution evidence, the statement of the accused were recorded under Section 313 CrPC. According to the accused persons they claimed that a lane, through the fields of Surjaram, is the bone of contention between the two parties. The complainant party wanted to open this passage way, but the accused party was resisting the said move. There was even a litigation pending between the parties before the Board of Revenue. The Board of Revenue had given a stay in favour of the accused party. Therefore, the complainant party took the law into their own hands, and at the dead of the night they came and started breaking the boundary wall of the field in order to open the lane. Hearing the noise, Arvind and Ramnarayan went to their fields. There they found Laduram and others breaking the boundary wall on the western side and on the eastern side. When Arvind and Ramnarayan tried to stop the complainant party, they were attacked by the complainant party. Due to the attack, Arvind and Ramnarayan were injured. Hearing the noise, Arvind and Ramnarayan went to their fields. There they found Laduram and others breaking the boundary wall on the western side and on the eastern side. When Arvind and Ramnarayan tried to stop the complainant party, they were attacked by the complainant party. Due to the attack, Arvind and Ramnarayan were injured. Hearing the noise, Sitaram brought a farsi. Thus in their self-defence they fought back with the complainant party. Hence, they pleaded the right of private defence. 7. Harphool examined three witnesses in order to establish his plea of alibi. He had claimed that on 18th of July, in the afternoon since the panchayat which was called by the parties to resolve their dispute had failed, in the evening he had left the place with Shivram. Going through Garwalon Ki Dhani, he had reached the house of Kabodmal in the village Pahlawa. He had stayed at his house for the night. The next morning he had gone to his own village. 8. Harlal, on the other hand, pleaded that he has nothing to do with the dispute with regard to the lane. But because of an animosity that exists between him and Mamraj, Mamraj had threatened him that he would get him falsely implicated in a criminal case. Therefore, he has been implicated in the case. 9. After going through the oral and documentary evidence, the learned Judge has convicted and acquitted the accused appellants, and Harphool and Harlal, as mentioned above. Hence, both these appeals before this court. 10. Mr. A.K. Gupta, the learned counsel for the appellants has raised the following contentions before this court: firstly, it is a case of over implication. The over-implication is obvious from the fact that although Harlal, the complainant had named thirteen persons in the FIR, and had also claimed that there were other thirteen unknown persons, yet after thorough investigation the police discovered that not more than eighteen persons were involved. 11. Secondly, there is an inordinate delay in lodging of the FIR. For, according to Harlal, the incident took place in the midnight of 18.7.1989 at 12 O clock, yet the FIR was not lodged till 6:00 AM on 19.7.1989. Thirdly, although the FIR is said to have been lodged at 6:10 AM on 19.7.1989, it did not reach the Area Magistrate till 5:00 PM of 19.7.1989. For, according to Harlal, the incident took place in the midnight of 18.7.1989 at 12 O clock, yet the FIR was not lodged till 6:00 AM on 19.7.1989. Thirdly, although the FIR is said to have been lodged at 6:10 AM on 19.7.1989, it did not reach the Area Magistrate till 5:00 PM of 19.7.1989. Thus, there is almost a gap of eleven hours in the lodging of the FIR, and the reaching of the said FIR to the Area Magistrate. This inordinate delay in sending of the FIR has been used for concocting a false story and for implicating innocent persons. 12. Fourthly, even the learned Trial Court, on the basis of same evidence, has acquitted Harlal and Harphool by extending benefit of doubt to them. Therefore, it is clearly a case of over-implication. Fifthly, the prosecution case has not come with clean hands. For, admittedly Arvind and Ramnarayan have suffered a large number of injuries, as is apparent from Ex.D.15, the injury report of Arvind Kumar, and Ex.D.16, the injury report of Ramnarayan. Therefore, the prosecution has intentionally suppressed the genesis of the case. Sixthly, the defence has consistently pleaded that Surjaram had been granted a stay in his favour which prevented the complainant party from using the lane through the fields of Surjaram. While ignoring the said stay order, in order to take law in their own hands, it is the complainant party which had come and broken the boundary walls of Surjaram's fields. In order to protect their property, and once Arvind and Ramnarayan were attacked by the complainant party, the accused person in their right of private defence, assaulted the complainant party. However, in order to favour the complainant party, the Investigating Agency has purposefully changed the site of the occurrence, and has falsely drawn up the site-plan (Ex.P.3). Lastly, the learned Judge has erred in not appreciating the evidence in proper perspective, and in convicting the accused appellants. 13. On the other hand Mr. V.R. Bajwa and Mr. Rajesh Choudhary, the learned counsel for the complainant, and Mr. N.S. Dhakad, the learned Public Prosecutor, have vehemently contended that even if it were a case of over implication, the police has already reduced the number of accused persons to merely eighteen persons. 13. On the other hand Mr. V.R. Bajwa and Mr. Rajesh Choudhary, the learned counsel for the complainant, and Mr. N.S. Dhakad, the learned Public Prosecutor, have vehemently contended that even if it were a case of over implication, the police has already reduced the number of accused persons to merely eighteen persons. Thus, the police through a thorough investigation, has already narrowed down the criminal liability on those persons who were found to be actually involved in the occurrence. Therefore, even if there was a delay in sending the FIR to the concerned Magistrate, such a delay is not fatal to the case of the prosecution. Secondly, the injured witnesses, whose presence is clearly stamped, have given a consistent story about the role of each of the accused persons. Their testimony is further corroborated by the medical evidence. Thus, there is no scope for doubting the case of the prosecution. Therefore, the learned counsel have supported the impugned judgment. 14. An examination of the record clearly reveals that according to Harlal (P.W.5), the occurrence had occurred in the midnight of 18.7.1989, the formal FIR was registered on 19.7.1989 at 6:10 AM, and yet according to the entry made by the Magistrate's Court, the FIR did not reach the Magistrate's Court till 5:00 PM on 19.7.1989. Hence, there is clearly a delay of almost eleven hours between the registration of the FIR, and its receipt by the concerned Magistrate. 15. Ranglal Kateva (P.W. 20), the S.H.O. of Police Station Laxmangarh, who had registered the FIR, has admitted in his cross-examination that "the distance between the Police Station, and the Court of the concerned Magistrate is fifteen kilometers. The court is situated in Fatehpur." According to him, "both the Police Station and the court are situated on the National Highway and there is constant traffic movement." He also admits that "the police station does have a jeep at all times". He denies the suggestion that the FIR was registered in the afternoon but is ante-timed. Interestingly for the delay, he does not offer a single cogent explanation. 16. In the case of Bijoy Singh & Anr. v. State of Bihar [ (2002) 9 SCC 147 ] , the Hon'ble Supreme Court has elaborately dealt with the effect of delay in sending the FIR to the Area Magistrate as under: 7. Interestingly for the delay, he does not offer a single cogent explanation. 16. In the case of Bijoy Singh & Anr. v. State of Bihar [ (2002) 9 SCC 147 ] , the Hon'ble Supreme Court has elaborately dealt with the effect of delay in sending the FIR to the Area Magistrate as under: 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. Immediate sending of the report mentioned in Section 157 Cr.P.C. 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. It is always for the prosecution to explain such a delay and if plausible and sufficient explanation is tendered, no adverse inference can be drawn against it. 17. Since the delay has not been explained by the prosecution, a grave possibility does exist that innocent persons have been falsely implicated in the present case. 18. Since the delay has not been explained properly by the prosecution, it does caste a shadow of doubt on the prosecution case. But, in such a situation the court is required merely be on guard, to critically analyse the evidence and to separate the wheat from the chaff. 19. Harlal (P.W.5) has basically reiterated the same story which he had narrated in the written report (Ex.P.12). Therefore, his testimony need not be reproduced. But, in such a situation the court is required merely be on guard, to critically analyse the evidence and to separate the wheat from the chaff. 19. Harlal (P.W.5) has basically reiterated the same story which he had narrated in the written report (Ex.P.12). Therefore, his testimony need not be reproduced. The other injured witnesses, namely Brijendra Singh (P.W.10), Om Prakash (P.W. 11), and Surendra (P.W.12) have consistently corroborated the testimony of Harlal. Each of these witnesses have assigned specific roles to Arvind and Surjaram. According to these witnesses, the moment Laduram reached the spot in order to rescue his family members, Surjaram told Arvind that "Laduram is the main enemy, therefore, he should be taught a lesson". Saying so, both of them attacked Surjaram with farsies. They caused farsi blow on his head. Arvind also caused injury on his elbow and on left hand. Similarly, Arvind Kumar struck Mohan on the head - an injury that proved to be fatal. Likewise injuries were also caused to Brijendra, Surendra, Om Prakash and Chandraram. 20. Dr. Rattan Modi performed the Post-Mortem on Laduram and proved the Post-Mortem Report (Ex.P. 34). According to Dr. Modi, Laduram had suffered eleven injuries on his body, as under:- 1) Lacerated wound - 3" x 1" Bone deep on the occipital region having clotted blood. 2) Contusion - Swelling present on the Neck Lt. Side, obliquely placed - 3" x 1" in size. 3) Contusion - 2" x 1" on the Rt elbow jt, Frontal aspect. 4) Contusion - 11/2" x 1" on the Lt elbow jt, external aspect. 5) Contusion - 11/2" x 3/4" on the lower part Rt. Forearm Anter aspect. 6) Contusion - 2" x 1" on the Antr aspect of Rt thigh upper part. 7) Contusion - 11/2" x 3/4" on the back of Lt Leg upper part. 8) Contusion - 3" x 1" on the back Lt. Part. 9) Contusion - 11/2" x 1" on the Lt Gluteal region. 10) Contusion - 11/2" x 3/4" on the Lt. Ankle joint outer aspect. 11) Contusion - 2" x 1" on the Rt. Leg mid part. The cause of death was head injury. 21. While examining the skull Dr. Modi discovered that there was a fracture in many places of the occipital bone. The dura meter within the occipital region was torn and there were cut marks on the occipital bone. 11) Contusion - 2" x 1" on the Rt. Leg mid part. The cause of death was head injury. 21. While examining the skull Dr. Modi discovered that there was a fracture in many places of the occipital bone. The dura meter within the occipital region was torn and there were cut marks on the occipital bone. According to him, the cause of death was the head injuries. 22. Similarly, Dr. B.L. Jangid had performed the Post-Mortem on Mohan Singh. He has proven the Post-Mortem Report Ex.P.50. According to the Post-Mortem Report, Mohan Singh had suffered the following injuries:- 1) Stitched wound - 7cm long on left parietal region of scalp 5 black stitches appear - On exploration there was hematoma under surface of scalp tissue. No bone injury visible. 2) Abrasion 4cm x 3cm on back of right shoulder. 3) Swelling rt and around 1st melacarp and kannelee. No bone injury seen on x-ray at the site. 4) Stitched wound 3cm long 7" below knee. Two stitches seen - On exploration there was hematoma on right side of leg upper part with fracture of right tibia - compound fracture. 5) Bony deformity with stitched wound 2cm long. Two stitch-marks seen on left leg lower part - On exploration there was fracture of lower end of tibia and fibula with hematoma seen. 6) Swelling left FA. - On exploration there was fracture of shaft of left radius and ulna seen with hematoma. 7) Swelling over right forearm 2/3 part - On exploration there is fracture of shaft of right radius bone is seen with hematoma in tissues. 8) Abrasion 5cm x 3cm triangular on right side of front of thorax lower part. 9) Bruise 7cm x 4cm iliac on the rt hypochondrial - On exploration there is (illegible) and contusion of iliac jegmea (small intestine) and right hepetriflean of colour with hematoma 10) Bruise 10cm x 0.5cm lenear on back of rt side of lumber region. Dark blood red colour. Effusion of blood interior under tissue seen. 11) Abrasion 1.5cm x 1cm on lt little finger kneelee. All injuries are ante-mortem in nature. The cause of death was shock and hemorrhage as a result of multiple fractures, injuries to intestine. 23. Thus, the testimony of the injured witnesses is corroborated by the medical evidence. 24. It is true that according to Dr. 11) Abrasion 1.5cm x 1cm on lt little finger kneelee. All injuries are ante-mortem in nature. The cause of death was shock and hemorrhage as a result of multiple fractures, injuries to intestine. 23. Thus, the testimony of the injured witnesses is corroborated by the medical evidence. 24. It is true that according to Dr. B.L. Jangid (P.W. 18), he had examined both Arvind Kumar and Ramnarayan. He had discovered that Arvind had suffered twenty-five injuries and Ramnarayan had suffered twenty injuries. He had proved the injury report of Arvind (Ex.D. 15), and the injury report of Ramnarayan (Ex.D. 16). 25. The learned counsel for the appellants has vehemently contended that the police in collusion with the complainant party, had changed site of the occurrence. Despite his vehement arguments over the site-plan (Ex.P. 3), he has not been able to show any evidence to buttress this contention. 26. Moreover, he has contended that on the fateful night, the accused had merely gone to look after their farms. Meanwhile, it is the complainant who had transgressed into their fields and had demolished the boundary wall. He said argument, at the first blush looks attractive, but on a deeper probing is found baseless. Firstly, according to the site-plan (Ex.P.3), according to the police the occurrence had taken place within the field belonging to the complainant. Secondly, although the site-plan does show that the field of the complainant is surrounded by the field of Surjaram on the east and Harphool on the north, but there is no indication that the wall of either of these fields is broken. Since men may lie and documents do not, therefore, the plea raised by the accused that it is their boundary wall which had been damaged by the complainant, is not borne out by the site-plan. Furthermore, the fact cannot be ignored that the incident had occurred in the midnight of July 18th. It is a time when there is neither any sowing, nor is a crop standing. It is a time when a farmer tends to wait for the monsoon to strike. But mostly the land lies barren. Thus, there was no occasion for the accused to go and "take care" of their land at the dead of the night. It is a time when there is neither any sowing, nor is a crop standing. It is a time when a farmer tends to wait for the monsoon to strike. But mostly the land lies barren. Thus, there was no occasion for the accused to go and "take care" of their land at the dead of the night. The consistent story of the prosecution is that the accused persons had gone well armed to the house of the complainant party, and had dragged out Brijendra and Mohan, had assaulted them. When Laduram and his other family members intervened, they too were assaulted. While Laduram died at the spot, Mohan expired in the hospital. Therefore, as far as those for whom overt acts have been specified, the prosecution case is cogent and convincing. 27. However, a critical analysis of the case of the prosecution equally reveals that the complainant and his witnesses from the very beginning had left the net wide open for implicating innocent persons. Harlal (P.W.5), while mentioning thirteen persons, had also claimed that there were other thirteen unknown persons present at the spot. Further, the injured witnesses give a specific overt act to Arvind Kumar and Ramnarayan, to Surjaram and Birbal, but when it comes to Birju, their statements have become vague and general. In fact interestingly, Birju has been giving different names. At times he was called Brij Mohan. Thus, even his identity is uncertain. Therefore, this court has no other option but to give the benefit of doubt to Birju. 28. As far as the acquittal of Harphool Singh is concerned, we need not examine the same as the view taken by the learned Trial Court is certainly a possible view on the facts of the case. It is, indeed, trite to state that if two views are possible and one view has been taken by the trial court, the appellate court is not permitted to substitute its view to that of the view of the trial court. Although it is true that the appellate court does have the power to reassess the evidence, but the limitation is that if two views are possible, then the appellate could not substitute its view for the view of the appellate court. 29. Consequently, as a result of the above discussion, appeal preferred by State of Rajasthan is dismissed. Although it is true that the appellate court does have the power to reassess the evidence, but the limitation is that if two views are possible, then the appellate could not substitute its view for the view of the appellate court. 29. Consequently, as a result of the above discussion, appeal preferred by State of Rajasthan is dismissed. Appeal of Birju @ Brij Mohan is accepted by granting him benefit of doubt as a matter of abundant caution, and the appeal preferred by Arvind Kumar @ Nemichand, Ramnarayan, Birbal and Surjaram is dismissed. 30. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely Birju @ Brij Mohan is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only), and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effected for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeals disposed of. *******