JUDGMENT : Mohammad Rafiq, J. Challenge in this criminal appeal is made to judgment and order dated 17.06.2011 passed by the court of learned Additional District & Sessions Judge (Fast Track) No.2, Ajmer, in Sessions Case No.11/2009, whereby the learned trial court convicted and sentenced the accused-appellants as under :- Name of Accused Appellants Conviction and sentence Sunil Teji For offence under Section 147 IPC - to undergo one year's simple imprisonment For offence under Section 148 IPC - to undergo two years simple imprisonment For offence under Section 302 IPC - to undergo life imprisonment with fine of Rs.1000/-; in default of payment of fine, to further undergo two months simple imprisonment Laxman, Jagdish alias Guddu, Anil and Ravi For offence under Section 147 IPC - each to undergo one year's simple imprisonment For offence under Section 148/149 IPC - each to undergo two years simple imprisonment For offence under Section 302/149 IPC - each to undergo life imprisonment with fine of Rs.1000/- each; in default of payment of fine, each to further undergo two months simple imprisonment All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that one Smt. Sumitra lodged a written report with Police Station Ramganj, Ajmer, on 11.03.2009, wherein she stated that it was next day of 'holi' festival i.e. 'dhulandi' and on that occasion, her 'dewar' (brothers-in-law) Bhagchand and Lalchand were sitting in the 'baithak' and at that time Amit S/o Gordhan, by caste Khatik and Yuvraj @ Butiya S/o late Heeralal came at her residence and took her son Vijay Kumar. At about 4'O Clock they were planning to go at Subash Nagar to collect 'inaam', which is usually given to members of their community by the people of the society on such festivals. Thereafter at about 6'O clock, Amit and Yuvraj came back and informed that when all the three were going to Subhash Nagar on motorcycle, near the bridge Sunil S/o Laxman, Laxman S/o Buddha, Jagdish @ Guddu S/o Buddha, all by caste Harijan, R/o Subhash Nagar, came there armed with 'lathis' and started beating all three of them. It was stated that three other persons of the group of Jagdish @ Guddu were also there, who too attacked on them. Vijay Kumar @ Sonu fell down due to injury of 'lathi' caused by them on his head. It was stated that three other persons of the group of Jagdish @ Guddu were also there, who too attacked on them. Vijay Kumar @ Sonu fell down due to injury of 'lathi' caused by them on his head. Both of them fled from there saving their lives, leaving Vijay Kumar @ Sonu lying there. 3. On hearing this, the complainant along-with her 'dewar' Bhagchand went to Police Station Ramganj and enquired about Vijay. They came to know that Vijay Kumar @ Sonu has been taken by the police to J.L.N. Hospital. The complainant returned back to her house and informed family members and other persons of the locality, who told her to remain at the residence and they went with her 'dewar' Bhagchand and Lalchand to J.L.N. Hospital, where they came to know that Vijay Kumar @ Sonu has expired. The police, on receipt of the written report, registered F.I.R. No.64/2009, for offence under Sections 302, 147, 148, 149 and 34 IPC, and commenced the investigation. The postmortem was conducted on the body of deceased Vijay Kumar @ Sonu and in the opinion of the doctors, cause of death was coma due to ante mortem head injury caused by blunt object, which was sufficient to cause death in the ordinary course of nature. 4. During the course of investigation, the accused-appellants were arrested and after completion of investigation, the police filed challan for offence under Sections 147, 148, 149, 302 read with Section 34 IPC. Charges were framed against the accused-appellants no.2 to 5 for offence under Sections 147, 148, 149 and 302/149 IPC and against accused-appellant no.1 for offence under Sections 147, 148 and 302 IPC. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, produced as many as 14 witnesses and also got 49 documents exhibited from Exhibit P-1 to Exhibit P-49. The accused-appellants were examined under Section 313 Cr.P.C. They did not produce any witness in their defence, however, produced seven documents, which were exhibited as Exhibit D-1 to Exhibit D-7. After hearing both the parties, learned trial court vide impugned judgment and order, convicted and sentenced the accused-appellants as stated above. Hence this appeal on their behalf. 5. Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that according to the prosecution case, the incident took place at about 5:00 PM on 11.03.2009. After hearing both the parties, learned trial court vide impugned judgment and order, convicted and sentenced the accused-appellants as stated above. Hence this appeal on their behalf. 5. Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that according to the prosecution case, the incident took place at about 5:00 PM on 11.03.2009. As per the entry made in the 'rojnamcha' (Exhibit P-48), one Raju gave information at the Police Station and Manoj Kumar Gupta (PW-14), the Investigating Officer, reached there after making entry of his visit in the 'rojnamcha' (Exhibit P-48). He called the ambulance as also the photographer. When the Investigating Officer reached there, he found the injured lying by the side of the 'chabutra' (platform) and his motorcycle was also lying there in damaged condition. The injured was shifted to hospital. It is argued that the facts thus would reveal that it was a case of accident. The injured, who later died, was in the state of intoxication having consumed liquor on the festival of 'holi' and therefore, was unable to control the vehicle. This aspect has been completely overlooked by the learned trial court. 6. Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that as per the prosecution, the incident took place on 'dhulandi', next day of 'holi' and deceased Vijay Kumar @ Sonu had left his house in the morning to collect customary reward given by the people on the festival of 'holi'. Amit (PW-2) and Yuvraj @ Bhutiya (PW-3) informed complainant Sumitra (PW-1) about the incident at 6:00 PM. Such information had already been received by the police at 5:00 PM, as is clear from 'rojnamcha' (Exhibit P-48). As per FSL Report (Exhibit P-41), the quantity of Ethyl Alcohol in blood sample of the deceased was estimated 115.00mg/100ml. This clearly shows that deceased was highly drunk and was unable to control the vehicle while driving the motorcycle, which hit the 'chabutra'. This is also borne out from the fact that the motorcycle was found in damaged condition. The injury report also probabilises this fact that the deceased in fact met with accident. The site plan (Exhibit P-1) also corroborated this story. It is argued that the accused persons were not knowing that the deceased, with his companions, would be coming on the motorcycle at the place of incident. The injury report also probabilises this fact that the deceased in fact met with accident. The site plan (Exhibit P-1) also corroborated this story. It is argued that the accused persons were not knowing that the deceased, with his companions, would be coming on the motorcycle at the place of incident. The incident occurred at the place far away from the residential houses of both the parties. There is possibility that the deceased and his party got into altercation with the accused. Learned trial court failed to consider that aspect of the matter. The prosecution has suppressed the genesis of the incident. The report (Exhibit P-5) was registered at the Police Station at 8:00 PM on 11.03.2009 and the incident took place between 4:30 PM to 5:00 PM as per 'rojnamcha' (Exhibit P- 48). The written report was submitted by Sumitra (PW-1) on the basis of information received from Amit (PW-2) and Yuvraj (PW-3) at 6:00 PM. Mohan Thada (PW-11), the photographer, has admitted that on 11.03.2009 in between 4:00 and 5:00 PM a call was received by him from the police that an incident has taken place near the bridge and some snaps were to be taken, and when he went there, he found one motorcycle lying in damaged condition. Manoj Kumar Gupta (PW-14), the Investigation Officer, also stated that he received information from one Raju that one person is lying in injured condition. Amit (PW-2) has admitted in his statement that he and Yuvraj (PW-3) were detained in the police station in the night. This clearly shows that information furnished by Amit (PW-2) and Yuvraj (PW-3) to the complainant was not mentioned in the F.I.R. and they did not give the true version of the story. In fact, accused Sunil had already lodged the F.I.R. against Amit (PW-2) much prior to the incident. Owing to this fact, Amit (PW-2) had a grudge against the accused-appellant. The prosecution has failed to establish motive as to why the accused-appellants would murder the deceased, particularly when neither there was any enmity between them nor any other reason. 7. Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, further argued that the entire prosecution case is founded on testimony of Amit (PW-2) and Yuvraj (PW-3), but neither of them is reliable witness. 7. Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, further argued that the entire prosecution case is founded on testimony of Amit (PW-2) and Yuvraj (PW-3), but neither of them is reliable witness. Amit (PW-2) has denied the existence of F.I.R. No.233/2001 (Exhibit D-6), registered at Police Station Ramganj, District Ajmer, and charge-sheet No.154/2001 in that F.I.R. (Exhibit D-7). These documents clearly shows his motive for lodging false criminal case against the accused-appellants. Except these two interested witnesses, there is no other independent witness in the case. The testimony of these two witnesses does not find any corroboration from any other source. It is therefore highly unsafe to sustain conviction of the accused-appellants only on the basis of their testimony. 8. Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, further argued that the prosecution has produced only one independent witness, namely, Anil Parashar (PW-8), who has not supported the case of the prosecution. Manoj Kumar Gupta (PW-14), the Investigating Officer, has admitted in his statement that as per the story of the prosecution, the motorcycle of the deceased had collided with the motorcycle of accused Sunil. According to seizure-memo, the motorcycle of the accused-appellant Sunil was found intact without any damage. Had the motorcycles collided, the motorcycle of the accused also would have certainly received certain damage or dent. Amit (PW-2) and Yuvraj (PW-3) stated that they fell down from the motorcycle but they did not receive any injury, which shows that they are not speaking the truth. It is argued that both, the accused and deceased, belong to 'harijan' community and many of them are employed as sweepers in Nagar Nigam Ajmer, and 'Inaam' on the festivals is generally given to sweepers and the day on the incident took place was also a festival of 'holi'. 9. Mr. R.S. Raghav, learned Public Prosecutor for the State, supported the impugned judgment and order, and argued that the accused-appellants have rightly been convicted and sentenced. 10. Having heard learned senior counsel for accused-appellants as also learned Public Prosecutor for the State and minutely scanned the material on record, this court finds that as per the first version given in the written report (Exhibit P-3), deceased Vijay Kumar @ Sonu was accompanied by Amit (PW-2) and Yuvraj (PW-3). 10. Having heard learned senior counsel for accused-appellants as also learned Public Prosecutor for the State and minutely scanned the material on record, this court finds that as per the first version given in the written report (Exhibit P-3), deceased Vijay Kumar @ Sonu was accompanied by Amit (PW-2) and Yuvraj (PW-3). Amit (PW-2) and Yuvraj (PW-3) came back to the house of complainant and informed that while all of them were going on a motorcycle to Subhash Nagar, accused Sunil, Laxman and Jagdish @ Guddu met them near bridge, who gave beating to them. Deceased Vijay Kumar @ Sonu fell on the ground there itself. Complainant Sumitra (PW-1) is admittedly not an eye witness and thus she has narrated in the written report and also stated during her court statement on the basis of what was told to her by Amit (PW-2) and Yuvraj @ Bhutiya (PW-3) and therefore we have to analyse the judgment in order to arrive at conclusion whether all the accused-appellants formed an unlawful assembly and acted in furtherance of their common object. Amit (PW-2) has stated that when they crossed the bridge Sunil, Laxman and Jagdish @ Guddu came on motorcycle from opposite direction. While accused Sunil started beating the deceased by 'danda' (stick), accused Anil and Ravi and one more boy, all the three were sons of accused Jagdish @ Guddu, were exhorting him that deceased be put to death. All of them were having 'dandas'. Amit (PW-2) and Yuvraj @ Bhutiya (PW-3) rushed from there. In cross-examination, Amit (PW-2) has stood the scrutiny of cross-examination and has not deviated from the version given in the examination in chief. Therein also he has stated that when Sunil and others were beating deceased Vijay, these witnesses stayed there hardly for five minutes and did not interfere. But thereafter they feared for their lives, and fled away from the place of occurrence to elsewhere. Yuvraj @ Bhutiya (PW-3), in his court statement, also gave similar version that when accused Sunil hit the motorcycle of Vijay Kumar @ Sonu, the latter fell down, whereas this witness and Amit jumped from the motorcycle to save themselves. Sunil took out the 'lathi' from the side of the motorcycle and inflicted 'lathi' blow on the head of Vijay Kumar @ Sonu. Accused Anil, Ravi and one more accused were exhorting to kill deceased. Sunil took out the 'lathi' from the side of the motorcycle and inflicted 'lathi' blow on the head of Vijay Kumar @ Sonu. Accused Anil, Ravi and one more accused were exhorting to kill deceased. These three also inflicted 'lathi' blow on his person. Laxman, father of Sunil Teji, and his uncle Jagdish @ Guddu inflicted 'lathi' blow on the person of deceased. 11. Bhagchand (PW-6) is not an eye witness and is a witness of hearsay because whatever he stated is based on the version given by Amit (PW-2) and Yuvraj (PW-3) to Sumitra (PW-1), the mother of deceased and Lal Chand (PW-7). Manoj Kumar Gupta (PW-14), the Investigating Officer, has proved all the stages of investigation including various memos. Dr. Sumer Singh (PW-9) was the member of the Medical Board, which conducted the postmortem on the body of the deceased. He has proved the postmortem report (Exhibit P-10), according to which, the cause of death was coma as a result of ante mortem head injury caused by blunt weapon/object, freshly before death, which was sufficient to cause death in ordinary course of nature. The postmortem report (Exhibit P-10) shows that deceased received total nine injuries. While injury no.9 was lacerated wound on the left occipital region in the size of 3.5x1cm x bone deep and injury no.6 was multiple abrasion on right side of temporal region in the size of 0.5x0.5cm to 1x1cm, but other five injuries were abrasions and one was stab wound and yet another was punctured lacerated wound on left thigh. The testimony of the witnesses when read along-with postmortem report and nature and number of injuries, clearly reveal that the incident had taken place suddenly when the motorcycle of the accused Sunil collided with motorcycle of deceased Vijay Kumar and besides the incident had taken place on the next day of 'holi' festival i.e. 'dhulandi'. The deceased was in the state of intoxication and it appears that some of the accused were also in the state of intoxication, that being the day of 'Holi' festival. The incident thus had taken place at the spur of moment. The accused may have had common object of giving threshing/beating to the deceased and his companions but while the companions of the deceased fled away and deceased was struck and subjected to beating by all the accused. The incident thus had taken place at the spur of moment. The accused may have had common object of giving threshing/beating to the deceased and his companions but while the companions of the deceased fled away and deceased was struck and subjected to beating by all the accused. In the process of beating, however, one of them, namely, accused Sunil Teji exceeded the common object and inflicted severe 'lathi' blow (injury no.9) on the head of deceased, which proved fatal leading to his death. The evidence thus therefore does not prove that in a case of simple 'maar-peet' either of the accused also shared common object of committing murder of Vijay Kumar @ Sonu. Accused Sunil Teji would therefore be responsible for individual act, although all the accused formed unlawful assembly with common object of giving threshing/beating the deceased. Even then, since the incident had taken place at the spur of moment without any premeditation in a sudden fight in the heat of passion, the same would thus fall in Exception 4 of Section 300 of the IPC. Since the act of accused-appellant Sunil Teji, by which death of deceased Vijay Kumar @ Sonu was caused with intention of causing death or causing such bodily injury was likely to cause his death, his act would be punishable for offence under Section 304 Part-I of the IPC, while other accused would simply be liable to be convicted for offence under Section 323/149 IPC. 12. At this stage Mr. Biri Singh Sinsinwar, learned senior counsel for accused-appellants, while making submission on sentence of accused-appellant Ravi, submitted that he is a government servant working on the post of Sweeper with Nagar Nigam, Ajmer, he may be extended benefit of probation for his conviction for offence under Section 323/149 IPC. 13. In the result, the appeal is allowed in part. Conviction of accused-appellant Sunil Teji S/o Shri Laxman for offence under Sections 302 IPC is set aside and instead he is convicted for offence under Section 304-I IPC and for this offence he is sentenced to suffer ten years' rigorous imprisonment with fine of Rs.1,000/-, as ordered by the trial court. In default of payment of fine, he has to further undergo simple imprisonment of two months. His conviction and sentence for offence under Sections 147 and 148 IPC are maintained. In default of payment of fine, he has to further undergo simple imprisonment of two months. His conviction and sentence for offence under Sections 147 and 148 IPC are maintained. He is in jail and shall be released on completion of the period of sentence and on deposit of the amount of fine. However, the conviction and sentence of accused-appellants no.2 to 5, namely, Laxman S/o Shri Buddha, Jagdish alias Guddu S/o Shri Buddha, Anil S/o Shri Jagdish alias Guddu and Ravi S/o Shri Jagdish alias Guddu, for offence under Sections 147, 148/149 and 302/149 IPC are set aside and they are convicted for offence under Section 323/149 IPC. Accused (12 of 13) [CRLA-689/2011] appellants no.2 to 4, namely, Laxman S/o Shri Buddha, Jagdish alias Guddu S/o Shri Buddha and Anil S/o Shri Jagdish alias Guddu are sentenced to the period already undergone by them. Their sentence has already been suspended by this court vide order dated 12.09.2011 in D.B. Criminal Miscellaneous Bail Application no.1025/2011, and they are on bail and thus need not be surrendered. Having regard to the antecedents and age of accused-appellant no.5 Ravi and the fact that he is a government servant, this court deems it to be a fit case where he be held entitled to benefit of Sections 4 of the Probation of Offenders Act, 1958. He is accordingly given the benefit of Section 4 of the Probation of Offenders Act, 1958, provided he furnishes a personal bond of Rs.25,000/- (Rupees twenty five thousand) with two sureties of Rs.12,500/- each before the court concerned for keeping the peace and be of good behaviour for two years and that he will not commit the offence of which he is accused during the period of probation. The appellant is also extended the benefit of Section 12 of the Probation of Offenders Act, 1958, so that this judgment will not come in the way of service career of the appellant. The appellant is also extended the benefit of Section 12 of the Probation of Offenders Act, 1958, so that this judgment will not come in the way of service career of the appellant. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellants no.2 to 5, namely, Laxman s/o Shri Buddha, Jagdish alias Guddu S/o Shri Buddha, Anil S/o Shri Jagdish alias Guddu and Ravi S/o Shri Jagdish alias Guddu, are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, each, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, with an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court.