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2017 DIGILAW 835 (RAJ)

Asharam s/o Girraj v. State of Rajasthan

2017-03-28

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

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JUDGMENT : 1. These appeals are directed against two judgments, both dated 30.05.2011, passed by Additional Sessions Judge (Fast Track), Sawaimadhopur (for short ‘the trial court’) in Sessions Case No. 10/2008 (49/2007, 109/2007) and 10/2010(46/2010, 63/2010) respectively, whereby the accused-appellants were convicted and sentenced in the manner indicated below: Name of Accused Conviction And Sentence (1)Nanda @ Nandkishore (2) Asharam, (3) Jairam, (4) Mayram @ Miyaram (5) Hanuman, (6) Shyokaran, (7) Mojiram, (8) Ratanlal, (9) Ramphool, (10) Kamlesh, (11) Ramkesh @ Keshya Under Section 148 IPC to undergo simple imprisonment for one year. (1)Nanda @ Nandkishore (2) Asharam, (3) Jairam, (4) Mayram @ Miyaram (5) Hanuman, (6) Shyokaran, (7) Mojiram, (8) Ratanlal, (9) Ramphool, (10) Kamlesh, (11) Ramkesh @ Keshya Under Section 447 IPC to undergo simple imprisonment for three months. (1)Nanda @ Nandkishore (2) Asharam, (3) Jairam, (4) Mayram @ Miyaram (5) Hanuman, (6) Shyokaran, (7) Mojiram, (8) Ratanlal, (9) Ramphool, (10) Kamlesh, (11) Ramkesh @ Keshya Under Section 323 IPC to undergo simple imprisonment for one year. (1)Nanda @ Nandkishore (2) Asharam, (3) Jairam, (4) Hanuman, (5) Shyokaran, (6) Mojiram, (7) Ratanlal, (8) Ramphool, (9) Kamlesh, (10) Ramkesh @ Keshya Under Section 324/149 IPC to undergo simple imprisonment for two years. (1) Mayram @ Miyaram Under Section 324 IPC to undergo simple imprisonment for two years. (1)Nanda @ Nandkishore (2) Asharam, (3) Jairam, (4) Mayram @ Miyaram (5) Hanuman, (6) Shyokaran, (7) Mojiram, (8) Ratanlal, (9) Ramphool, (10) Kamlesh, (11) Ramkesh @ Keshya Under Section 325/149 IPC to undergo simple imprisonment for three years and fine of Rs. 500/-, in default whereof to further undergo six months simple imprisonment. (1) Asharam Under Section 302 IPC to undergo rigorous imprisonment for life and fine of Rs. 2,000/-, in default whereof to further undergo one year’s rigorous imprisonment. (1)Nanda @ Nandkishore (2) Jairam, (3) Mayram @ Miyaram (4) Hanuman, (5) Shyokaran, (6) Mojiram, (7) Ratanlal, (8) Ramphool, (9) Kamlesh, (10) Ramkesh @ Keshya Under Section 302/149 IPC to undergo rigorous imprisonment for life and fine of Rs. 2,000/-, in default whereof to further undergo one year’s rigorous imprisonment. 2. Brief facts of the case are that a written report was submitted by Shyamlal at Police Station Kotwali, Sawaimadhopur alleging therein that on 30.05.2007 at about 6.00 PM, accused Asharam, Mojiram and Hanuman Meena were cutting a Babool tree standing in the land of informant. 2,000/-, in default whereof to further undergo one year’s rigorous imprisonment. 2. Brief facts of the case are that a written report was submitted by Shyamlal at Police Station Kotwali, Sawaimadhopur alleging therein that on 30.05.2007 at about 6.00 PM, accused Asharam, Mojiram and Hanuman Meena were cutting a Babool tree standing in the land of informant. When his brother - Dhara Singh forbade the accused persons from cutting the tree, they ran after him, but could not apprehend him. But they threatened to see him afterwards. At about 6.30 - 7.00 PM, when the informant’s father was returning to the village for dinner, the aforenamed accused persons, who were hiding in the ‘nallah’ near the well, subjected him to beating with ‘lathis’, as a result of which informant’s father Surajmal sustained injuries. Thereafter all the accused persons armed with ‘lathi’, ‘gandasi’ and ‘kulhari’ came towards the well and accused Asharam, Shyokaran, Jairam, Mojiram, Mayram @ Miyaram, Shyoraj and Girraj gave beating to Hariram with ‘gandasis’ and ‘lathies’. Accused Asharam inflicted injury with a ‘gandasi’ on the head of Hariram, as a result of which he fell down. Accused Maderam, Sukhram, Rattiram, Harkesh, and Babu gave beating to Munim. Maderam is alleged to have inflicted injury with a ‘gandasi’ on the head of Munim. Accused Hanuman inflicted injury with a ‘gandasi’ on the head of Rambharosi, Accused Ghanshyam and Kalu gave beating to Ram Singh with ‘lathi’. Accused Narain and Jairam gave beating to Dhara Singh with ‘lathi’. The informant was also given beating by Nanda, Babu and Bagchand. When the villagers came to their rescue, the accused persons ran away from there. The injured were taken to the Hospital at Sawaimadhopur where Hariram succumbed to the Injuries. 3. On the basis of aforesaid written report, police registered FIR No.232/2007(Exhibit P-2) for offences under Sections 147, 148, 149, 323, 302, 324, 37 IPC and investigation commenced. The investigating officer, on 12.09.2007 filed charge sheet against accused-appellants Nanda @ Nandkishore, Asharam, Jairam, Mayram @ Miyaram, Hanuman, Shyokaran, Mojiram, Ratanlal and Ramphool under Sections 147, 148, 149, 323, 324, 325, 307, 302, 447 IPC before competent court wherefrom the case was committed to the Court of Sessions. The investigating officer, on 12.09.2007 filed charge sheet against accused-appellants Nanda @ Nandkishore, Asharam, Jairam, Mayram @ Miyaram, Hanuman, Shyokaran, Mojiram, Ratanlal and Ramphool under Sections 147, 148, 149, 323, 324, 325, 307, 302, 447 IPC before competent court wherefrom the case was committed to the Court of Sessions. Investigation against accused-appellants Kamlesh and Ramkesh @ Keshya was kept pending under Section 173(8) Cr.P.C. Thereafter, on 07.01.2008, charge sheet against accused-appellant Kamlesh was filed for aforesaid offences before the competent court wherefrom the case was committed to the Court of Sessions. Trial of the case was then made over to Additional Sessions Judge(Fast Track), Sawaimadhopur. The trial court framed charges against the accused-appellants Nanda @ Nandkishore, Jairam, Hanuman, Shyokaran, Mojiram, Ratanlal, Ramphool and Kamlesh under Sections 148, 447, 323, 324/149, 307/149, 302/149 IPC; against accused-appellant Asharam under Sections 148, 447, 323, 324/149, 325/149, 307/149, 302 IPC and against accused-appellant Mayram @ Miyaram under Sections 148, 447, 323, 324, 325/14, 307, 302/149 IPC. The accused-appellants denied the charges and claimed to be tried. The prosecution produced 20 witnesses and exhibited 86 documents. Thereafter accused-appellants were examined under Section 313 Cr.P.C. wherein they pleaded innocence. In defence no witness was produced, but seven documents were exhibited. 4. During pendency of trial of the aforesaid accused-appellants, on 26.08.2010, charge sheet against accused-appellant Ramkesh @ Keshya was also filed under Sections 147, 148, 149, 323, 324, 325, 307, 302, 447 IPC before competent court and the case was transferred to the trial court. The trial court framed charges against the accused-appellant Ramkesh @ Keshya under Sections 148, 447, 323, 324/149, 325/149, 307/149, 302/149 IPC. The accused-appellant denied the charges and claimed to be tried. To prove its case, the prosecution examined 23 witnesses and exhibited 87 documents. Thereafter accused-appellant Ramkesh @ Keshya was also examined under Section 313 Cr.P.C. wherein he pleaded innocence. In defence the accused-appellant did not produce any witness but exhibited two documents. 5. The trial court vide two separate judgments dated 30.05.2011 convicted and sentenced the accused-appellants in the manner as indicated above. 6. Mr. Vijay Yadav, learned counsel appearing on behalf of accused-appellant Asharam argued that the trial court has erred in convicting the accused-appellant for offences under Sections 148, 447, 324/149, 325/149 and 302 IPC simpliciter solely on the basis of the testimony of highly interested and partisan witnesses. 6. Mr. Vijay Yadav, learned counsel appearing on behalf of accused-appellant Asharam argued that the trial court has erred in convicting the accused-appellant for offences under Sections 148, 447, 324/149, 325/149 and 302 IPC simpliciter solely on the basis of the testimony of highly interested and partisan witnesses. Besides, the evidence produced by the prosecution is sketchy and contradictory inasmuch as prosecution witnesses right from inception have tried to suppress the genesis of the incident and shifted the place of occurrence. It is alleged that incident took place in two parts. Firstly when Surajmal(P.W.6), father of the informant, Shyamlal(P.W.1) was allegedly subjected to beating by Asharam, Mojiram and Hanuman and second incident took place when the deceased and remaining injured were beaten. According to learned counsel, incident had actually taken place at one place and second incident has been deliberately made out to show the arrival of as many as 25 more accused. In this, the sole purpose of the complainant party was to implicate large number of persons as accused in the present case. It is, therefore, a case of gross false implication. Statements of the prosecution witnesses do not inspire any confidence inasmuch as their statements contradict with each other. The trial court has wrongly relied upon the testimony of prosecution witnesses because there are material contradictions and inconsistencies in the version of the prosecution witnesses. 7. Learned counsel argued that FIR has been lodged after inordinate delay, after due deliberation. Incident is alleged to have occurred at about 9.00-9.30 P.M. on 30.05.2007 and the injured were admitted in hospital at 10.00-10.30 P.M. There was no electric connection in the agricultural field of the complainant party where the incident allegedly took place and there was no electric pole or otherwise electric bulb or tube light. The prosecution witnesses also admitted that it was not full moon night. In the absence of light, it was impossible for the witnesses to see the manner in which the incident took place, so as to name the accused with specific overt act. Surajmal(P.W.6) has stated that police arrived in the hospital, but parcha bayan of any injured person was not recorded by the police and the written report was submitted on the next day. This casts doubt on the veracity of the prosecution story. Surajmal(P.W.6) has stated that police arrived in the hospital, but parcha bayan of any injured person was not recorded by the police and the written report was submitted on the next day. This casts doubt on the veracity of the prosecution story. So far as accused Asharam is concerned, all eye witnesses have stated that he inflicted ‘gandasi’ blow on the forehead of deceased, while he was standing. None has stated that accused-appellant Asharam inflicted blow of ‘gandasi’ on forehead of the deceased after he fell on the ground. Referring to dimension and nature of injuries from injury report of Hariram(Exhibit P-50), learned counsel submitted that Injury no. 1 has been described to be an incised wound on the forehead, but its dimension is only 4 x 14 cm. Such kind of injury could have been received by Hariram only if he was standing and not while lying on the ground. No prosecution witness has alleged that accused Asharam repeated injury. What they have stated is that second injury on the head of the deceased Hariram was caused by Shyokaran by use of ‘gandasi’ whereas there is only one injury by sharp edged weapon. It cannot be ascertained whether this injury was caused by accused appellant Asharam or Shyokaran. Therefore, Asharam is entitled to benefit of doubt. 8. Learned counsel argued that prosecution witnesses have stated that disputed agricultural land was earlier owned by Asharam, which was sold by him eight years ago. If that was so, there was no occasion for the members of the accused party to have gone to that agricultural field and cut the ‘babool’ tree. As per site plan(Exhibit P- 27) and Jamabandi Khatoni (Exhibit P-41), it is proved that disputed tree was standing on the boundary between the agricultural field of the complainant party and the adjacent agricultural field, which was earlier owned by the accused Asharam and was sold eight years ago. Ganga Sahai (P.W.16), Patwari concerned, has also proved the fact that the disputed tree was standing on the boundary dividing two agricultural fields. In fact, the Patwari has put a note in the site plan (Exhibit P-27) that the disputed tree was standing on the boundary. Learned counsel argued that all the recoveries have been made with enormous delay of 2½ months, which would be evident from Exhibit P-7 to Exhibit P-11. In fact, the Patwari has put a note in the site plan (Exhibit P-27) that the disputed tree was standing on the boundary. Learned counsel argued that all the recoveries have been made with enormous delay of 2½ months, which would be evident from Exhibit P-7 to Exhibit P-11. Recovery of ‘gandasi’ at the instance of accused-appellant Asharam (Exhibit P-7) was made on 23.08.2007. Recovery of ‘lathi’ at the instance of accused Asharam(Exhibit P-12) was made on 25.08.2007. All these recoveries have been made from open place. In fact, Surendra Kumar Gupta(P.W.18) Investigating Officer has admitted that houses of the accused-appellants were situated in village, which was located on foothills of mountain. ‘Lathi’, ‘kulhadi’ and ‘gandasi’ etc. are generally found in the household of the farmers. It is argued that in the recovery memo of ‘gandasi’ (Exhibit P-7) it has been alleged that ‘gandasi’ was containing blood stains, but FSL Report(Exhibit P-78), ‘gandasi’ was not found to contain any blood stain. It is argued that seizure of the two pieces of woods of babool tree, which was allegedly cut by the accused party, was made vide Exhibit P-28. It is argued that prosecution witnesses have tried to improve upon their original version given to the police after they became aware of the injury reports and post mortem report. Their deposition has been tailor-made to secure conviction of as many as accused as possible. Shyamlal (P.W.1), informant was not present at the time of incident because he was posted as teacher in another village. Besides, his presence at the time of incident is belied by the fact that no attempt was made by him to rescue his family members and he had not sustained any injuries in the incident. Shyamlal(P.W.1) has categorically stated two injuries having caused on the forehead of deceased Hariram. First blow on the forehead has been attributed to accused Shyokaran from the sharp edged side of ‘gandasi’ and thereafter the accused Asharam is also alleged to have inflicted ‘gandasi’ blow on the forehead of Hariram. 9. It is argued that Smt. Rambharosi (P.W.7) and Prahlad Singh (P.W.8) have also stated the same version whereas in the post mortem report, there is only one injury on the head of the deceased and in these circumstances, version of the prosecution witnesses is not trustworthy. 9. It is argued that Smt. Rambharosi (P.W.7) and Prahlad Singh (P.W.8) have also stated the same version whereas in the post mortem report, there is only one injury on the head of the deceased and in these circumstances, version of the prosecution witnesses is not trustworthy. Learned counsel further argued that no marks of human blood were found on the weapons alleged to have been rerecorded from the appellant Asharam and other accused persons and as such, he has been falsely implicated in the present case. Further, ocular evidence is belied by medical evidence and the implication of the accused-appellant Asharam is wholly unfounded. Dr. K.B. Gupta (P.W.9) categorically stated that Hariram could have sustained the injury on account of the Tractor Trolley having over turned, but this aspect has totally been ignored by the trial court. No independent witness has been produced by the prosecution. The prosecution has not disclosed correct genesis of the occurrence and prosecution witnesses have resiled from their statements given to the police under Section 161 Cr.P.C. 10. Mr. Biri Singh Sinsinwar, learned Senior Counsel assisted by Mr. Rajesh Choudhary, learned counsel appearing on behalf of the accused-appellants namely Nanda @ Nandkishore, Mayram @ Miyaram, Hanuman, Shyokaran, Mojiram, Ratanlal, Ramphool, Kamlesh and Ramkesh @ Keshya and Mr. Tarun Jain, learned counsel appearing on behalf of accused-appellant Jairam argued that the trial court erred in not correctly appreciating statement of Surajmal(P.W.6), who specifically stated that the disputed tree of ‘babool’ was standing towards ‘doll’ (kachcha boundary) of accused Hanuman. He also stated that certain babool trees were also standing on the boundary wall of Hanuman. There were only three trees towards the med of Hanuman, out of which one was cut by these persons. Therefore, it is clear that the tree, which was cut by the accused party was in the side of accused Hanuman. Therefore, conviction of accused-appellants offence under Section 447 IPC is bad in law and deserves to be set aside. The complainant party persons created an obstruction in cutting of the tree and gave beating to Mayram @ Miyaram. The accused-party thus had every right of private defence of person and property. It is argued that the trial court has erred in not correctly appreciating Exhibit P-27 and Exhibit P-40 site plan of incidents 1 and 2. There is no site plan of third incident. The accused-party thus had every right of private defence of person and property. It is argued that the trial court has erred in not correctly appreciating Exhibit P-27 and Exhibit P-40 site plan of incidents 1 and 2. There is no site plan of third incident. Ganga Sahai, Patwari(P.W.16), Narayan Tiwari, SHO(P.W.15) and Surendra Kumar Gupta, Additional Superintendent of Police(P.W.18) have supported the version of defence. It would be clear from the entire evidence that the incident of cutting of tree has taken place in the field of Asharam and Jairam, who sold their field to Hanuman, co-accused. The accused-appellant Mojiram has nothing to do with the dispute of cutting of the tree and has been falsely implicated in the case only for the reason that he had good relations with Asharam and other family members and no relations with the members of complainant party. 11. It is argued that Hariram (deceased) sustained four injuries, out of which injury no. 1 was responsible for his death, which was inflicted by Asharam. No overt act has been attributed to accused Mojiram. It has also come in the evidence of prosecution witnesses that the accused-appellant Ramphool was standing only and no overt act has been attributed to him either. It is argued that allegation against accused-appellant Hanuman is that he inflicted a ‘gandasi’ blow on the head of Smt. Rambharosi whereas she received only two injuries by blunt weapon and there is no injury by sharp edged weapon on her person. Therefore, accused-appellant Hanuman has been falsely implicated in the case. The prosecution witnesses have stated that accused Nanda @ Nandkishore along with Babu and Bhagchand caught hold of the complainant. No overt act has been attributed to him. It is further argued that accused-appellants Ratanlal and Kamlesh were armed with ‘lathis’ and they gave beating to Smt. Rambharosi, but she received only 2 injuries by blunt weapon. As regards Mayram @ Miyaram, it is argued that it has come in the evidence of prosecution witnesses that the accused-appellant inflicted injury by sharp edged weapon on the person of injured Munim, but that injury is found to be simple in nature. Munim received 8 injuries, out of which injury no. 6 caused by blunt weapon was found to be grievous. Therefore, conviction of accused-appellant Mayram @ Miyaram is also liable to be set aside. Munim received 8 injuries, out of which injury no. 6 caused by blunt weapon was found to be grievous. Therefore, conviction of accused-appellant Mayram @ Miyaram is also liable to be set aside. The complainant lodged a written report after 12 hours of the incident against 28 persons and attributed specific act but the prosecution did not find any case against 18 persons, which makes it clear that it is a case of gross over implication. It is argued that as per the prosecution, three incidents took place, firstly when the babool tree was cut, secondly when Surajmal was subjected to beating and thirdly when Hariram was attacked and died. All the three incidents have taken place separately involving different accused and at different times. Therefore, conviction of accused-appellants with the aid of Section 147, 148 and 149 IPC is perverse and liable to be set aside. In the present case, ocular evidence did not get the corroboration from the medical evidence. The prosecution witnesses contradicted each other on the material points as regards the allegations as alleged. It was alleged that 28 persons gave beating, but the police did not choose to file challan against 18 persons. The complainant has not preferred any application under Section 190 or 319 Cr.P.C. Thus, it is a case of over implication. 12. As regards accused Ramkesh @ Keshya, learned Senior Counsel argued that Surajmal (P.W.6) specifically stated in his cross-examination that in his statement recorded before the trial court earlier, name of Ramkesh was not mentioned, which proves that Ramkesh has been falsely implicated in the present case. Besides, there are six persons with the same name of Ramkesh in village including present accused-appellant Ramkesh and it cannot be said with certainty that it was present accused-appellant Ramkesh only who was involved in the incident. It is, therefore, prayed that present appeals be allowed and impugned judgments be set aside. 13. Mr. R.S. Raghav, learned Public Prosecutor appearing on behalf of the State opposed the appeals and supported the judgments passed by the trial court. He has taken the Court through the statements of the prosecution witnesses, which we shall deal at a later stage. 14. We have given our anxious consideration to rival submissions and perused the material on record. 15. R.S. Raghav, learned Public Prosecutor appearing on behalf of the State opposed the appeals and supported the judgments passed by the trial court. He has taken the Court through the statements of the prosecution witnesses, which we shall deal at a later stage. 14. We have given our anxious consideration to rival submissions and perused the material on record. 15. We have gone through the statements of the prosecution witnesses with the help of learned Senior Counsel as also learned counsels for the other accused-appellants and learned Public Prosecutor. In order to avoid repetition, we do not intent to deal with the arguments of learned counsel for the parties, but on the basis of what has been argued, we shall scrutinize the evidence of the prosecution witnesses to the extent it finds corroboration from their ocular or documentary evidence. 16. As per the prosecution case, the injured were taken to hospital by four independent persons namely Meetha Lal (P.W.2), Kamlesh(P.W.3), Bal Ram(P.W.17) and one Babu within half an hour, however, out of these four persons, three witnesses Meetha Lal (P.W.2), Kamlesh (P.W.3) and Bal Ram (P.W.17) have turned hostile and have not supported the case of prosecution. Meetha Lal (P.W.2) was attesting witness of Panchayatnama (Exhibit P-3), but he has stated that his signatures were obtained on blank papers. Kamlesh (P.W.3) was made attesting witness of site plan of both the places (Exhibit P-27 and Exhibit P-28), but he also stated that his signatures were obtained on blank papers. Bal Ram (P.W.17) similarly stated that no seizure memo was prepared in his presence and his signatures were obtained on blank papers. Babu, fourth independent witness has not been produced and therefore, adverse inference has to be drawn against the prosecution for not presenting him. The incident in the present case took place at 9 P.M. and the injured were taken to hospital 10 P.M., but no explanation has been given by the prosecution as to why FIR was not registered with the police station immediately, which was adjacent to the hospital. Prosecution witnesses have admitted that distance between the hospital where the injured were taken and the police station was hardly five minutes by walk. If that was so, why written report was submitted at 6.00 A.M. on the following morning on 31.05.2007, has not been explained. 17. Prosecution witnesses have admitted that distance between the hospital where the injured were taken and the police station was hardly five minutes by walk. If that was so, why written report was submitted at 6.00 A.M. on the following morning on 31.05.2007, has not been explained. 17. Shyamlal (P.W.1) in the written report and police statement (Exhibit D-1) made general allegation against accused Mojiram, but in the Court statement, he alleged that Mojiram inflicted ‘lathi’ blow below right eye on the face of Hariram. Shyamlal (P.W.1) in the written report and in his police statement did not assign any role to accused Shyokaran, but in the court statement, he alleged that Shyokaran inflicted ‘gandasi’ blow on left side of the forehead of the deceased. However, there was only one ‘gandasi’ blow on the person of the deceased, which as per prosecution witnesses has been ascribed to co-accused Asharam. Shyamlal (P.W.1) has made tremendous improvement upon his previous version. 18. Smt. Rambharosi (P.W.7) in her police statement alleged that Mojiram inflicted ‘lathi’ blow on the person of the deceased Hariram, but in the court statement she tried to make it more specific by alleging that Mojiram inflicted ‘lathi’ blow on the face of her husband below her eyes. Dhara Singh (P.W.10) another eye witness has made general allegations against Mojiram in the court statement, which he also stated in his police statement. Manim Lal (P.W11) has made general allegations against Mojiram in the court statement and did not make specific allegation. Ram Singh (P.W.12) though has also tried to improve upon his original version given to police wherein he did not make specific allegation against Mojiram, but in the court statement, he stated that Mojiram inflicted ‘lathi’ blow below right eye of Hariram. 19. As regards accused Hanuman, Shyamlal (P.W.1) alleged that he inflicted ‘gandasi’ blow on right side of head of Rambharosi whereas there is no such injury by ‘gandasi’ blow in the injury report of Rambharosi (Exhibit P-42), who suffered only two simple injuries by blunt weapon. Rambharosi (P.W.7) alleged that accused Hanuman inflicted ‘gandasi’ blow on her body but no such allegation was made by her in her police statement (Exhibit D-3). When she was confronted in her cross-examination about this, she could not explain such deviation. Moreover, there was no corresponding incised wound injury on her body by sharp edged weapon. Rambharosi (P.W.7) alleged that accused Hanuman inflicted ‘gandasi’ blow on her body but no such allegation was made by her in her police statement (Exhibit D-3). When she was confronted in her cross-examination about this, she could not explain such deviation. Moreover, there was no corresponding incised wound injury on her body by sharp edged weapon. Dhara Singh(P.W.10) has made general allegation against Hanuman. Manim Lal (P.W.11) in his court statement made improvement upon his previous version by stating that Hanuman inflicted ‘gandasi’ blow on head of Rambharosi. When he was confronted with his police statement (Exhibit D-6) in which he made general allegation against Hanuman, he failed to explain the same. There is no corresponding injury by ‘gandasi’ on the head of Rambharosi. Similarly, Ram Singh (P.W.12) in his court statement alleged that Hanuman inflicted ‘gandasi’ blow on the head of Rambharosi, but he also could not explain such deviation from his police statement (Exhibit D-7). 20. As regards accused Shyokaran, he was named with general allegations in written report (Exhibit P-1) by Shyamlal (P.W.1), but when Shyamlal (P.W.1) appeared as witness in the trial court he alleged that Shyokaran inflicted ‘gandasi’ blow on left side of forehead of Hariram. Rambharosi (P.W.7) also alleged that Shyokaran inflicted ‘gandasi’ blow to her husband, but she did not specify part of the body where such blow was delivered. When confronted with her police statement (Exhibit D-3), she failed to explain this discrepancy. Dhara Singh (P.W.10) also failed to explain the subsequent improvement when in the court statement he stated that Shyokaran inflicted ‘gandasi’ blow on left side of forehead of deceased Hariram. He failed to explain why he did not give such statement to police (Exhibit D-5). 21. Similarly, Manimlal (P.W.11) has also tried to improve upon his earlier version when he stated in the trial court that Shyokaran inflicted ‘gandasi’ blow on the forehead of the deceased Hariram but when he was confronted with his police statement (Exhibit D-6) in which he alleged that Shyokaran inflicted ‘lathi’ blow when Hariram fell on the ground, he failed to explain why he did not give similar statement to the police. Ram Singh (P.W.12) stated that Shyokaran inflicted ‘lathi’ blow on the left side of deceased head. When he was also confronted with his police statement (Exhibit D-7) where he made general allegation against Shyokaran, he fell to explain such discrepancy. 22. Ram Singh (P.W.12) stated that Shyokaran inflicted ‘lathi’ blow on the left side of deceased head. When he was also confronted with his police statement (Exhibit D-7) where he made general allegation against Shyokaran, he fell to explain such discrepancy. 22. As regards accused Nanda @ Nandkishore, Shyamlal(P.W.1) in his statement stated that Nanda @ Nandkishore at the time of incident had caught hold of him and in written report he alleged that Nanda @ Nandkishore inflicted ‘lathi’ blow. But, this witness has admitted that he is serving as teacher in the government school and was posted 32-33 km away from the disputed place in village Pancholas and used to stay at Pancholas with his family. In cross-examination he could not explain how could he then be present at the place of occurrence. Therefore, this witness cannot be treated as reliable witness. Rambharosi (P.W.7) also made general allegations against Nanda @ Nandkishore that he was amongst many accused who encircled them. Dhara Singh (P.W.10) also made general allegations against Nanda @ Nandkishore, but did not make specific allegation against him. Manimlal (P.W.11) and Ram Singh (P.W.12) both alleged that Nandkishore had caught hold of Shyamlal (P.W.1). When they were confronted with their police statements Exhibit D-6 and Exhibit D-7 respectively, they could not explain why they did not say so therein. 23. As regards accused Ratanlal, Shyamlal (P.W.1) alleged that he inflicted ‘lathi’ blow on Rambharosi and Rambharosi (P.W.7) also alleged that he inflicted ‘lathi’ blow, but Dhara Singh (P.W.10) in his statement before the trial court had made general allegations against Ratanlal and did not attribute any specific role to him. Manimlal (P.W.11) has alleged that he inflicted ‘lathi’ blow on Rambharosi. Ramsingh (P.W.12) also alleged that Ratanlal inflicted ‘lathi’ blow on elbow of right hand of Rambharosi. When this witnesses (Ram Singh) was confronted with his police statement (Exhibit D-7), he failed to explain why he did not make similar allegation at that time. 24. As regards accused Kamlesh, Shyamlal (P.W.1) has alleged that Kamlesh inflicted a ‘lathi’ blow on Rambharosi (P.W.7) and Rambharosi also alleged so but Dhara Singh (P.W.10) and Manimlal (P.W.11) made general allegation against Kamlesh. However, Ram Singh (P.W.12) alleged that he inflicted ‘lathi’ blow on Rambharosi. When he was confronted with his police statement (Exhibit D-7), he failed to explain why he did not make similar allegation therein. 25. However, Ram Singh (P.W.12) alleged that he inflicted ‘lathi’ blow on Rambharosi. When he was confronted with his police statement (Exhibit D-7), he failed to explain why he did not make similar allegation therein. 25. As regard accused Mayram @ Miyaram, informant Shyamlal(P.W.1) has made tremendous improvement upon his previous version given in his police statement (Exhibit D-1). He in the court statement stated that Mayram @ Miyaram inflicted ‘lathi’ blow on wrist of left hand of the deceased, but when he was confronted with his police statement (Exhibit D-1), he failed to explain why he did not say so in the previous version given in the written report and to the police. Rambharosi (P.W.7) has made general allegations against Mayram @ Miyaram in her court statement. Dhara Singh (P.W.10) alleged that Mayram @ Miyaram inflicted blow by ‘lathi’ on left hand of the deceased but he failed to explain why he did not give such version to the police in Exhibit D-5 wherein he made only general allegation against him. Manimlal (P.W.11) stated that Mayram @ Miyaram inflicted ‘lathi’ blow on the left hand of Hariram but when he was also confronted with his statement given to the police (Exhibit D-6) wherein he stated that Miyaram inflicted ‘lathi’ blow while Hariram was lying on the ground, he failed to explain why he stated so to the police. Ram Singh (P.W.12) in court statement stated that Mayram @ Miyaram inflicted ‘lathi’ blow on left hand of Hariram. He was also confronted with his police statement (Exhibit D-7) wherein he made general allegation of beating of Hariram by accused Mayram @ Miyaram, which he could not explain. 26. As regards accused Jairam, Shyamlal (P.W.1) in his court statement stated that Jairam inflicted ‘lathi’ blow on hand of the deceased Hariram whereas in the written report (Exhibit P-1) he made only general allegations against him. When he was confronted with his police statement (Exhibit D-1) as also written report (Exhibit P-1), he failed to explain why he did not make such allegation against Jairam therein. Rambharosi (P.W.7) has not made any allegation against Jairam. Dhara Singh (P.W.10) stated that Jairam inflicted ‘lathi’ blow on the hand of the deceased Hariram. When he was confronted with his police statement (Exhibit D-5) wherein he made general allegations against Jairam and did not make such specific allegation, he failed to explain such improvement. Rambharosi (P.W.7) has not made any allegation against Jairam. Dhara Singh (P.W.10) stated that Jairam inflicted ‘lathi’ blow on the hand of the deceased Hariram. When he was confronted with his police statement (Exhibit D-5) wherein he made general allegations against Jairam and did not make such specific allegation, he failed to explain such improvement. Manimlal (P.W.11) stated that Jairam inflicted ‘lathi’ blow on the left hand of the deceased Hariram. Even this witness was confronted with his police statement (Exhibit D- 6), as to why he did not make such allegation against Jairam therein, he failed to explain the same and he has made improvement over his previous statement. Ram Singh (P.W.12) alleged that Jairam inflicted ‘lathi’ blow on deceased Hariram, which he received on his left hand. Though this witness was also confronted with his police statement (Exhibit D-7), in which he made general allegation against Jairam, but he failed to give reasons for such deviation. 27. Trial of accused Ramkesh @ Keshya was conducted separately, though the witnesses were common and the evidence was substantially the same. Author of written report (Exhibit P-1), Shyamlal appeared in that trial as P.W.5 and he alleged that Ramkesh @ Keshya inflicted ‘lathi’ blow on the person of Rambharosi, but in cross-examination he was required to explain as to which Ramkesh did so because he admitted that there were two persons of the name of Ramkesh in the written report, but he had not mentioned their fathers’ name therein. He further admitted that he did not even mention name of fathers of those two Ramkesh in his police statement. When he was asked whether it was Ramkesh S/o. Jairam, he stated that he did not know whether it was Ramkesh S/o. Kanha and there was one more Ramkesh S/o. Bheru in the village. When further asked he stated that he did not know the person named as Ramkesh was son of Mojiram. He also denied for want of knowledge the fact that whether any Ramkesh S/o. Ramniwas was also in the village or not. Therefore, in the case of such state of confusion, it would be highly unsafe to sustain conviction of accused-appellant Ramkesh. Rambharosi (P.W.11 in that trial) stated that Ramkesh inflicted ‘lathi’ blow on her person. He also denied for want of knowledge the fact that whether any Ramkesh S/o. Ramniwas was also in the village or not. Therefore, in the case of such state of confusion, it would be highly unsafe to sustain conviction of accused-appellant Ramkesh. Rambharosi (P.W.11 in that trial) stated that Ramkesh inflicted ‘lathi’ blow on her person. When she was confronted with her police statement, in which she made general allegation against Ramkesh, she failed to explain the said discrepancy or improvement. Accordingly, Dhara Singh (P.W.-7 in that trial) made allegation that Ramkesh gave beating to Rambharosi. When he was confronted with his police statement, he failed to explain why did he not make such allegation against Ramkesh in the police statement. Manimlal (P.W.-9 in that trial) in the court statement stated that Ramkesh also gave beatings. When he was confronted with his police statement (Exhibit D-6), he failed to explain why he did not make such allegation against Ramkesh therein. Ram Singh (P.W.10) alleged that Ramkesh inflicted ‘lathi’ blow on the person of Rambharosi. 28. As regards Shyokaran, who is also alleged to have caused injury on the forehead of the deceased, we do not find testimony of the prosecution witnesses in this regard reliable because Shyamlal (P.W.1) did not make any such allegation against him in the written report (Exhibit P-1) as also in the police statement (Exhibit D-1) and when he was confronted with the same in the trial court, he failed to give proper explanation. Rambharosi (P.W.7) had also made improvement over her previous version in court statement wherein she made such allegation against Shyokaran, but she failed to explain why did she not originally make such allegation against Shyokaran. Similarly, Dhara Singh (P.W.-10), who in the court statement has made allegation against Shyokaran that he inflicted ‘gandasi’ blow on the forehead of Hariram, he failed to explain why did he not give such version to the police in his statement recorded under Section 161 Cr.P.C. (Exhibit D-5). Manimlal (P.W.11) has also made tremendous improvement over his previous version given to the police (Exhibit D- 6). Manimlal (P.W.11) has also made tremendous improvement over his previous version given to the police (Exhibit D- 6). He merely stated that Shyokaran inflicted ‘lathi’ blow on Hariram while he was lying on the ground, but in the court statement he alleged that shyokaran inflicted ‘gandasi’ blow on the left side of forehead of deceased Hariram, but he failed to explain why did he not state so in his police statement. Similar was the position of Ram Singh (P.W.12) whose version is entirely different from other witnesses. In the court statement, he stated that Shyokaran inflicted ‘lathi’ blow on left side of the head of the deceased. When he was confronted with his police statement (Exhibit D-7), he failed to explain this deviation. 29. In view of analysis of the prosecution evidence as aforesaid, accused-appellants Shyokaran, Ramphool, Nanda @ Nandkishore, Jairam and Ramkesh @ Keshya are held entitled to benefit of doubt due to tremendous improvement made by the prosecution witnesses in their statements regarding their role in the incident, especially with regard to accused-appellant Ramkesh @ Keshya because there is also doubt about his identity as two Ramkesh were named in the FIR and evidence proves that there are several other persons by the name of Ramkesh in village Uliyana. However, as regards role of other accused, we find that accused had gone to agricultural field of complainant party only with a view to causing them grievous injuries and therefore, their such group can be considered as unlawful assembly only with the common object. In that process, one of the accused Asharam had exceeded common object of unlawful assembly, wherefor others cannot be held responsible and the said accused would be responsible for his individual act. Incident having taken place without premeditation in a sudden fight in the heat of passion upon a sudden quarrel in which the appellant Asharam did not repeat the injury and that there was only one injury on the head, which proved fatal. The appellant Asharam thus did not take undue advantage or act in a cruel manner. Facts of the case attracts exception 4 to Section 300 IPC, thus, brings the offence one under Section 304 Part I IPC. 30. The appellant Asharam thus did not take undue advantage or act in a cruel manner. Facts of the case attracts exception 4 to Section 300 IPC, thus, brings the offence one under Section 304 Part I IPC. 30. In view of above discussion, we are persuaded to allow the present appeals in part and the same are partly allowed in following manner: (i) Conviction and sentence of accused-appellant Asharam under Section 302 IPC is set aside and instead he is convicted under Section 304 Part I IPC and sentenced to undergo 10 years rigorous imprisonment with fine of Rs. 2,000/-, in default of payment thereof, he shall further undergo one year’s rigorous imprisonment. His conviction and sentence as awarded by the trial court under Sections 148, 447, 323, 324/149 and 325/149 IPC is maintained. All the sentences shall run concurrently. The accused-appellant, as per certificate dated 26.05.2016 issued by Superintendent, Central Jail, Bharatpur, has served sentence of more than 9 years, 6 months and 1 day as on 26.05.2016, therefore, upon completion of his remaining sentence under Section 304 Part I IPC, he be released forthwith, if not required to be detained in any other case. (ii) Accused-appellants Nanda @ Nand Kishore, Jai Ram, Sheokaran, Ramphool and Ramkesh @ Keshya are acquitted of the charges under Sections 148, 447, 323, 324/149, 325/149, and 302/149 IPC and their conviction and sentence awarded by the trial court thereunder is set aside. They are on bail, therefore, need not surrender. Their bail bonds stand discharged. (iii) Accused-appellant Mayaram @ Miyaram is acquitted of the charges under Section 302/149 IPC. However, his conviction under Sections 148, 447, 323, 324, 325/149 IPC is maintained, but he is sentenced to a period of imprisonment already undergone by him. He is also on bail, therefore, need not surrender. His bail bonds stand discharged. (iv) Accused-appellants Hanuman, Mojiram, Ratanlal and Kamlesh are acquitted of the charges under Section 302/149 IPC. However, their conviction under Sections 148, 447, 323, 324/149 and 325/149 IPC is maintained, but they are sentenced to a period of imprisonment already undergone by each of them. They are also on bail, therefore, need not surrender. Their bail bonds also stands discharged. (iv) Accused-appellants Hanuman, Mojiram, Ratanlal and Kamlesh are acquitted of the charges under Section 302/149 IPC. However, their conviction under Sections 148, 447, 323, 324/149 and 325/149 IPC is maintained, but they are sentenced to a period of imprisonment already undergone by each of them. They are also on bail, therefore, need not surrender. Their bail bonds also stands discharged. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Asharam, Nanda @ Nand Kishore, Jai Ram, Mayaram @ Miyaram, Hanuman, Sheokaran, Mojiram, Ratanlal, Ramphool, Kamlesh and Ramkesh @ Keshya are 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, each of them, on receipt of notice thereof, shall appear before the Supreme Court. Office is directed to place a copy of this judgment on record of each connected appeal.