ORDER : MOHAMMAD RAFIQ, J. 1. All these three appeals are directed against the common judgment dated 5.6.2015 passed by the Special Judge, SC/ST Cases Bharatpur, District Bharatpur in Sessions Case No.65/2012 by which the accused-appellants Man Singh and Jagdish have been convicted for offence u/s.302 IPC and Tejveer @ Gulta for offence u/s.302/149 IPC and sentenced to undergo life imprisonment with a fine of Rs. 5000/-, in default of payment of fine, each of them was to further undergo three months simple imprisonment. They have also been convicted for offence u/s.148 IPC and sentenced to simple imprisonment of two years; for offence u/s.341 IPC and sentenced to simple imprisonment of one month; for offence u/s.323 IPC and sentenced to simple imprisonment of one year. Accused-appellant Man Singh has also been convicted for offence u/s.325 IPC and accused-appellant Jagdish and Tejveer @ Gulta for offence u/s.325/149 IPC and each of them has been sentenced to rigorous imprisonment of three years with a fine of Rs. 1000/-, in default of payment of fine, to further undergo one month simple imprisonment. All the sentences were ordered to run concurrently. 2. Brief facts of the case are that on 09.09.2010 a written report was submitted by Mukesh at Police Station Kumher, District Bharatpur stating therein that at about 11.00 AM in the morning, the accused appellants and their family members were trying to take the possession of the piece of land and when they were forbade by Mohar Singh, all of them started beating Mohar Singh, who died during treatment. On the basis of this written report, FIR No.340/2010 came to be registered for the offence under Sections 147, 148, 149, 323, 341, and 302 IPC and investigation commenced. Charge sheet was submitted by the police in the Court against the appellants and others for offences under Sections 147, 148, 149, 323, 325, 341 and 302 IPC. Charges for the offence under Sections 148, 341, 323 or 323/149, 325 and 302 IPC were framed against accused-appellants who denied the charges and claimed trial. The prosecution in support of its case, has examined as many as 17 witnesses and got 37 documents exhibited. Thereafter, the appellants were examined under Section 313 Cr.P.C., in which it was specifically stated that they have been falsely implicated. In defence, four witnesses were examined viz. Dr. R.D. Sharma (DW1), Amar Singh (DW2), Dr. The prosecution in support of its case, has examined as many as 17 witnesses and got 37 documents exhibited. Thereafter, the appellants were examined under Section 313 Cr.P.C., in which it was specifically stated that they have been falsely implicated. In defence, four witnesses were examined viz. Dr. R.D. Sharma (DW1), Amar Singh (DW2), Dr. Sanjay Choudhary (DW3) and Buddiram Parewa (DW4) and 12 documents were exhibited. After hearing both the parties, the learned trial court recorded conviction and sentence as mentioned above. Hence these appeals. 3. Shri Anil Upman, learned counsel for the accused-appellants has argued that there are material contradictions/improvements/omissions in the testimony of the prosecution witnesses as they have stated lie on the important points and have improved upon their original version and true facts were withheld by them. All the prosecution witnesses are close relatives of the deceased and prosecution failed to produce single independent witness in this case. Therefore, learned trial court has committed grave illegality in recording conviction on the testimony of such interested witnesses. 4. Learned counsel argued that prosecution failed to explain injuries found on the person of the accused persons. Specific questions were put to the prosecution witnesses in this regard but no answer was given by them and only ignorance was shown. The cross cases were registered at the instance of accused-appellant Man Singh with regard to injuries sustained by him vide injury report Ex.D8A, which has been proved by production of defence witness Dr. Santosh Choudhary (DW3). The x-ray report of accused-appellant Man Singh (Ex.P5A) has been proved by Dr. R.D. Sharma (DW1). Amar Singh (DW2), the Investigating Officer of the cross case has proved the filing of charge sheet. Learned counsel has produced certified copy of the judgment dated 5.6.2015 passed by Special Judge, SC/ST Prevention of Atrocities Cases, Bharatpur in Sessions Case No.208/2012 showing that four members of the complainant party namely; Bhola @ Mukesh, Ramveer, Vijendra Singh and Santoshi, who are witnesses in the present case, have been convicted for offence u/s.323 IPC and each of them has been sentenced to simple imprisonment of one year. Bhola @ Mukesh was also convicted for offence u/s.325 IPC and Ramveer, Vijendra Singh and Santosh were convicted for offence u/s.325/34 IPC and sentenced to rigorous imprisonment of three years each. It is argued that this Court can take judicial cognizance of this fact. 5. Bhola @ Mukesh was also convicted for offence u/s.325 IPC and Ramveer, Vijendra Singh and Santosh were convicted for offence u/s.325/34 IPC and sentenced to rigorous imprisonment of three years each. It is argued that this Court can take judicial cognizance of this fact. 5. Learned counsel argued that incident in the present case had taken place suddenly with regard to dispute over a piece of land, which according to accused belonged to them, whereas the complainant wanted to forcibly occupy the same. The allegation of the complainant party was that accused wanted to forcibly take possession of the land in question is false. As per the statement of Vijendra (PW1), who though has in earlier part of the statement has stated that Man Singh and Jagdish inflicted a ‘lathi’ blow each on the head of Mohar Singh, but later clarified by saying that blow of ‘lathi’ delivered by Jagdish hit the deceased Mohar Singh on his chest and similarly blow delivered by Tejveer @ Gulta hit the deceased Mohar Singh on his back. This witness in cross examination has stated that when he was in his house, he heard the sound of hue and cry raised by the injured and when he reached there, he found Mohar Singh already lying on the ground, who was bleeding from his head. Thus, this witness cannot be said to be an eye witness. In the light of the statement of this witness, the statement of Mukesh Kumar (PW2) that after first ‘lathi’ blow was delivered by Man Singh on the head of Mohar Singh, second ‘lathi’ blow was delivered by Jagdish, cannot be read to mean that this second ‘lathi’ blow was delivered by him on the head. Moreover, in the last line of cross examination, Mukesh Kumar has stated that he first of all reached the place of incident and all other persons came thereafter, which means that he is ruling out the presence of Vijendra (PW1) and Ramveer (PW3) as eye witnesses. The statement of Ramveer (PW3) therefore cannot be believed. 6. Learned counsel for the appellants argued that all other injuries sustained by the deceased Mohar Singh as per Ex.P17 except injury no.1 and the injuries sustained by Bijendra Singh, Mukesh, Ramesh and Santoshi are simple in nature, as would be evident from their injury reports viz. Ex.P1, Ex.P6, Ex.P7 and Ex.P9 respectively. 6. Learned counsel for the appellants argued that all other injuries sustained by the deceased Mohar Singh as per Ex.P17 except injury no.1 and the injuries sustained by Bijendra Singh, Mukesh, Ramesh and Santoshi are simple in nature, as would be evident from their injury reports viz. Ex.P1, Ex.P6, Ex.P7 and Ex.P9 respectively. He in this connection has also referred to the statement of Dr. Sanjay Chaudhary (PW17). As regards the injuries of the deceased Mohar Singh, learned counsel has referred to the statement of Dr. Ashok Mathur (PW12), who has stated that injury no.1 i.e. lacerated wound in the size of 2 x 1 cm being scalp tissue deep on right occipitoparietal area of scalp was responsible for the death of Mohar Singh. The other two injuries viz. abrasion in the size of 2 x 1 cm on left parietal area of scalp and lacerated wound in the size of 2.5 x 1 cm muscle deep with fresh clotted blood on left hand sustained by him were simple in nature. The postmortem report of Mohar Singh (Ex.P33) has been proved by Dr. Ashok Mathur (PW12). Learned counsel therefore submitted that it was a cross case of free fight where even as per the allegation of complainant party, the accused wanted to take possession of piece of land and the number and nature of injuries sustained by members of the complainant party. Facts therefore do not indicate that accused had formed an unlawful assembly for the common object of committing murder of Mohar Singh. Considering all injuries sustained by the members of the complainant party, the offence does not travel beyond Section 325 of IPC and even if the accused is taken to have formed such unlawful assembly and if one of the accused exceeded the common object of the unlawful assembly by using more force than was necessary and caused a fatal blow on the deceased, he must be held responsible for his individual act and the remaining accused should not be held responsible for doing so. The incident had taken place suddenly at the spur of moment in a heat of passion over a dispute with regard to act of Man Singh, the offence would therefore fall even in exception 4 of Section 300 IPC and therefore he alone at the maximum can be convicted for offence u/s.304 Part-II IPC. The incident had taken place suddenly at the spur of moment in a heat of passion over a dispute with regard to act of Man Singh, the offence would therefore fall even in exception 4 of Section 300 IPC and therefore he alone at the maximum can be convicted for offence u/s.304 Part-II IPC. However, considering that he has already remained in jail for last seven years and half months, he should be sentenced to the period already undergone by him. 7. Shri Prakash Thakuriya, learned Public Prosecutor has opposed the appeals and submitted that the learned trial court is fully justified in convicting the accused-appellants for the alleged offence on the basis of statement of prosecution witnesses and evidence available on record. There is no reason therefore for this Court to make interference in the impugned judgment. The appeals be therefore dismissed. 8. We have given our anxious consideration to the rival submissions and perused the material on record. 9. In the written report (Ex.P2), which was submitted on the date of incident i.e. 9.9.2010, the case set up by the informant Mukesh is that the accused Man Singh S/o Lohre along with Jagdish, Tejveer @ Gulta, Satish @ Santo, Surendra, Sonu S/o Man Singh, Shakultana W/o Man Singh, Neetu W/o Jagdish, Anju W/o Tejveer and other 5-6 persons came in a planned manner to take possession of the disputed land. They were armed with ‘lathis’ and ‘dandas’. Mohar Singh forbade them from doing so thereupon these accused attacked him. The informant alleged that first of all Man Singh inflicted ‘lathi’ blow on the head of Mohar Singh followed by Jagdish, who too inflicted ‘lathi’ blow on his head and then Tejveer inflicted a ‘lathi’ blow on his hand. When informant reached, a ‘lathi’ blow was delivered on his left leg by Jagdish. The police after thorough investigation filed charge sheet against only four accused, which apparently show that the Investigating Officer found it to be a case of over/false implication to the extent of Satto @ Satish, Surendra, Sonu, Shakuntala, Neetu and Anju and 5-6 unnamed person. When informant reached, a ‘lathi’ blow was delivered on his left leg by Jagdish. The police after thorough investigation filed charge sheet against only four accused, which apparently show that the Investigating Officer found it to be a case of over/false implication to the extent of Satto @ Satish, Surendra, Sonu, Shakuntala, Neetu and Anju and 5-6 unnamed person. Clearly, effort of the complainant party since the beginning has been to implicate as many family members of accused persons as possible, including females of their family namely; Neetu wife of Jagdish, Anju W/o Tejveer as also Shakuntala W/o Man Singh, who though were charged, but eventually acquitted by the learned trial court and in our view rightly. Second important circumstance that cast shadow of doubt on the correctness of the testimony of the prosecution witness is that they absolutely have not given any explanation for the injuries of the accused though it has been proved by production of defence witnesses. 10. As per injury report of Man Singh (Ex.D8A), he has sustained four injuries; the first two injuries were grievous in nature being fracture of first proximal metacarpal bone of the right hand and fracture of lower 1/3rd ulna bone of the left forearm. This Court considers the certified copy of the judgment, which has been produced by the learned counsel for the appellant showing that Bhola @ Mukesh, Ramveer, Vijendra Singh and Santoshi, the prosecution witnesses in the present case have been convicted by the trial court. 11. Indisputably even as per the case of the prosecution and that of the defence, the dispute had taken place over a piece of land. According to the complainant party, the accused were trying to forcibly take possession of the said land. The informant Mukesh Kumar (PW2) has in the opening of the statement deposed that Man Singh and other accused wanted to forcibly take possession of their land. Jagdish, Kulta, Satto, Surendra, Sonu, Shankuntala, Anju and Neetu were also trying to take possession of their land. When his uncle Mohar Singh forbade them, Man Singh inflicted a ‘lathi’ blow on his head. Second ‘lathi’ blow was delivered by Jagdish. It is significant to note that this witness has not given location of the body part of deceased Mohar Singh, on which the ‘lathi’ blow was allegedly delivered by Jagdish. When his uncle Mohar Singh forbade them, Man Singh inflicted a ‘lathi’ blow on his head. Second ‘lathi’ blow was delivered by Jagdish. It is significant to note that this witness has not given location of the body part of deceased Mohar Singh, on which the ‘lathi’ blow was allegedly delivered by Jagdish. Then his further version is that Kulta inflicted ‘lathi’ blow on the hand of deceased. In cross examination, when he was confronted with his police statement (Ex.D2) where he stated that he reached the place of incident after hearing hue and cry to save Mohar Singh, this witness denied having given such statement to the police, thus failed to explain such a discrepancy. He, in fact, in the written report (Ex.P2) which forms the basis for first information report (Ex.P3), has stated that he reached the place of incident to save the injured where obviously he meant to refer that Mohar Singh was beaten by Jagdish by ‘lathi’ on his left leg. This witness even denied having stated so in the written report. Thus, he cannot be accepted as an eye witness. 12. Coming now to the testimony of Vijendra (PW1), according to which, the incident took place when the accused attempted to take possession of the piece of land forcibly, which was resisted by the complainant party, Mohar Singh reached the disputed land and forbade the accused from occupying possession of the same. Then this witness has stated that Jagdish and Man Singh inflicted ‘lathi’ blow on the head of Mohar Singh, but in the next sentence he uttered that the ‘lathi’ blow delivered by Jagdish hit his chest, whereas the ‘lathi’ blow of Kulta hit him on his neck. But he has in cross examination indeed stated that at the relevant time, he was at his house and reached the place of incident after he heard the sound of hue and cry and that he was the first one to have reached the place of incident and thereafter Mukesh, Ajmat etc. reached there. By the time, he reached there, Mohar Singh was already lying on the ground and was bleeding from his head. He too thus cannot be accepted as an eye witness. 13. Ramveer (PW3), yet another eye witness too indicated that genesis of the incident was dispute on a piece of land. reached there. By the time, he reached there, Mohar Singh was already lying on the ground and was bleeding from his head. He too thus cannot be accepted as an eye witness. 13. Ramveer (PW3), yet another eye witness too indicated that genesis of the incident was dispute on a piece of land. He has alleged that Man Singh inflicted a ‘lathi’ blow on the head of Mohar Singh and thereafter Jagdish also inflicted a ‘lathi’ blow on his head. Gulta also inflicted a ‘lathi’ blow on his hand. Man Singh inflicted a ‘lathi’ blow on the forearm of this witness. Jaggo inflicted a lathi blow above the eye of his witness. Gulta inflicted a ‘lathi’ blow on his neck. Satto inflicted another ‘lathi’ blow on leg of this witness. Surendra inflicted a ‘lathi’ blow on the toe of his leg. Santosh (PW6) is also an injured eye witness. He too has stated that Man Singh, Satto, Gulta, Surendra and Shakuntala were digging foundation in their land. Man Singh caused a ‘lathi’ blow to Mohar Singh. Second ‘lathi’ blow was delivered by elder brother of Man Singh and third ‘lathi’ blow was delivered by Gulta. Significantly, this witness did not name Jagdish in specific, although mentioned that second ‘lathi’ blow was delivered by elder brother of Man Singh, but not only he did not mention as to on which part of the body of Mohar Singh, such ‘lathi’ blow was delivered by Man Singh, but also he does not say as to on which part of the body of Mohar Singh, second ‘lathi’ blow was delivered by elder brother of Man Singh. Besides, he also did not mention as to third ‘lathi’ blow delivered by Gunta and also, on which body part of Mohar Singh. 14. Dr. Ashok Mathur (PW12), who has proved the postmortem of deceased Mohar Singh (Ex.P33) has categorically stated that it was owing to injury no.1 that deceased went into comma and this injury was sufficient in the ordinary course of nature to cause death. The other injuries i.e. injury no.2 and 3 were simple in nature. The suggestion given to this witness in cross examination that whether injury no.1 could have been caused by stone and injury no.2 and 3 could have been reason of fall, is in the like of direct evidence and is meaningless. The other injuries i.e. injury no.2 and 3 were simple in nature. The suggestion given to this witness in cross examination that whether injury no.1 could have been caused by stone and injury no.2 and 3 could have been reason of fall, is in the like of direct evidence and is meaningless. The injuries of the other three injured namely; Mukesh, Ramesh and Santoshi have been proved by Dr. Sanjay Chaudhary (PW17), but at the same time injuries of the members of the accused-party namely; Man Singh, Tejveer and Shakuntala have been proved by Dr. Sanjay Choudhary (DW3). The circumstances of the injuries sustained by the accused in the same incident was put to the prosecution witnesses in their cross examination, but they failed to explain their injury. As against this, a specific defence has been set up by each of the three accused in their examination under Section 313 Cr.P.C. that the complainant party came armed with ‘lathi’ and ‘danda’ to forcibly occupy the land, which the accused claimed to be their own and when they resisted, complainant party started abusing them with reference to their caste and subjected them to beating. When Man Singh went to the house of Ramveer Master for repairing the hand-pump, the complainant party started abusing Shakuntala, member of the accused party and illegally confined her in room and subjected Tejveer to beating. The accused were beaten by the complainant party, in which process both hands of Man Singh got fractured. 15. The analysis of the evidence of prosecution witnesses thus clearly show that attempt of complainant party has been to implicate more number of accused than were actually involved inasmuch as they had also attempted to implicate all the female members of the accused party, but most of them were excluded by the Investigating Officer from the charge sheet and one of the accused namely; Shakuntala against whom charge sheet was filed, had been acquitted by the trial court. The trial court in our opinion was justified in doing so by applying the rule of separating grain from the chaff. 16. The trial court in our opinion was justified in doing so by applying the rule of separating grain from the chaff. 16. From the evidence discussed above, it appears that the incident in the present case had taken place in a sudden fight in heat of passion upon a sudden quarrel after formation of the unlawful assembly by the accused at the maximum to the extent of committing offence under Section 325 of IPC and one of the accused namely; Man Singh exceeded that common object, who applied more force than was necessary by causing head injury to the deceased Mohar Singh with both intention and knowledge of the fact that injury, which he caused, was likely to result in his death. The accused Man Singh however cannot be held to have taken undue advantage of the situation or acted in a cruel or unusual manner. Thus he alone would be guilty of committing offence of culpable homicide not amounting to murder punishable under Section 304 Part-I IPC, whereas two other accused-appellants as members of the unlawful assembly, would be guilty of committing offence under Section 323, 325 and 341 read with Section 149 IPC though in our view, each of them has rightly been convicted individually for offence u/s.148 IPC. 17. In the result, all the appeals aforesaid are allowed in part and are disposed off by modifying the impugned judgment of conviction and sentence in the following terms: (1) The conviction of accused-appellant Man Singh for offence u/s.302 IPC is set aside. He is instead convicted for offence u/s.304 Part-I IPC and sentenced to rigorous imprisonment of ten years with fine of Rs.5,000, in default of which, he shall undergo further imprisonment of three months. His conviction for offence u/s.148 IPC and imprisonment of two years on that count is maintained. So far sentence awarded to him for offence u/s.341 IPC with simple imprisonment of one month and imprisonment of one year for offence u/s.323 IPC and Section 325 IPC for imprisonment of three years is maintained. However, with the modification that he shall be deemed to have been convicted for each of these three offences with the aid of Section 149 IPC. The sentences shall run concurrently. (2) The conviction of accused-appellants Jagdish and Tejveer @ Gulta for offence u/s.148 IPC and imprisonment of two years on this count is maintained. However, with the modification that he shall be deemed to have been convicted for each of these three offences with the aid of Section 149 IPC. The sentences shall run concurrently. (2) The conviction of accused-appellants Jagdish and Tejveer @ Gulta for offence u/s.148 IPC and imprisonment of two years on this count is maintained. They are convicted for offence u/s.323, 325 and 341 of IPC on each of these count with the aid of Section 149 IPC instead of substantive for each of these offences. They remained in jail for a period of three years, one month & six days and one year & sixteen days respectively. They are sentenced to the period already undergone by them with further direction that they shall deposit the amount of fine as directed by the court below in the trial court within a period of two months. They are on bail, therefore, their bail bonds are discharged. They need not surrender and are set at liberty forthwith. 18. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants Jagdish and Tejveer @ Gulta is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court. 19. Office to place a copy of this judgment is each connected file.