FAROOQ HASSAN, J. - (1.) THESE two appeals arise out of two different sessions cases which relate to an incident of which two cross reports were filed by both the parties. Since these appeals arise out of one and the same incident alleged to have taken place on 22. 7. 78 and at the joint request of both the parties, they are being disposed of by this common judgment.
(2.) LEARNED trial Court holding the incident of a free fight, convicted the accused persons who are appellants in these appeals for their individual act. Each of the accused persons - Himmat Singh, Prahlad & Govind Ram (appellants in Cr. App. No. 245/83 of Sess. case No. 51/81) and Yadram & Ram Khilari (appellants in Cr. App. No 240/83 out of Sess, case No. 52/81) convicted under Section 323, IPC, but ordered to be released after admonition under Section 3 of the Probation of Offenders Act. Remaining accused persons were convicted & sentenced as under:- Chhitaria U/s 325, IPC. - One year's RI with a fine of Rs. 500/- in default, 2 months RI further. Bhagwat Singh U/s 307, IPC - 3 years' R. I. with a fine of Rs. 2,000/- in default, 6 months further R. I. Brief facts. In Sess. case No. 51/81- Yadram lodged a report (Ex. P. 1) at police station Kumher on 22. 7. 78 alleging therein that, he was Ex-Sarpanch having inimical terms with accused persons named in the reports namely, Himmat Singh, Puran, Laxman, Govind & Gopal on account of Panchayat election feud and in the evening, the accused persons entered into his house and then surrounded him that accused, Govind inflicted lathi blow on his person but was saved by Nem Singh (PW 4), Pappu Gariya (PW5) & Dyoji Gariya (PW 8), that, the accused persons then went away and he alongwith Nem Singh, Pappu & Dyoji went to the house of Deviram where he saw Ramdayal (PW3), Sukhdev (PW 11), Dharam Singh (PW2), & Smt. Saroopi (PW6) among others but, after some times 12 accused persons came back including the afore-named persons and at that time, Bhagwat Singh was duly armed with gun whereas Dulichand with country made Katta and others with lathies.
(3.) IT had also been alleged in the report lodged by Yadram that accused, Himmat Singh, Laxman & Ninua provoked to finish him & thereupon Bhagwat Singh opened fire which did not hit anybody and that, Nem Singh (PW4) & Dharam Singh (PW2) resisted the accused persons from doing so but, accused Badley enraged himself and exhorted to finish them favouring him thereby Bhagwat Singh again fired gun shot upon Dharam Singh resulting in causing injuries on his head & thigh. According to the report of Yadram, Nem Singh (Pw 4) was also injured due to gun shot fired by Duli Chand (accused), in as much as Ramdayal (Pw3) & Mst. Sarupi both were injured due to infliction of blows by the accused persons. According to their injury reports, Yadram, Dharam Singh, Nem Singh, Mst. Sarupi, & Ram Dayal sustained respectively one, three, three, one and two injuries on their persons. After usual investigation, during which, a gun was recovered from Bhagwat Singh, and a country made Katta was also seized, challan was filed in the Court and after committal proceedings, the accused persons Bhagwat & Dulichand were charged under sections 148, 307 & 323/149, IPC, whereas Himmat, Prasadi, & Prahlad were charged under aforesaid sections but without Section 149, IPC and the remaining accused namely, Ninua, Badle, Dholu, Puran, Laxman, Govindram & Gopal, were charged under Sections 147, 307 & 323/149 IPC. All these accused persons denied the charges and pleaded not guilty and claimed trial. After recording the statements of the prosecution witnesses and the accused persons and defence witnesses, etc, and hearing both the parties, except the appellants (Himmat, Prahlad, Govindram & Bhagwat who were convicted & sentenced as indicated in second para, (supra), other accused persons, named above, were acquitted of the offences charged. Bhagwat appellant was also acquitted of the offence of Section 148, 323/149, IPC, whereas Himmat, Prahlad & Govind Ram (appellants) acquitted of the offences of Sections 147, & 307, IPC In Sessions case No. 52/81 - Cross report by Bhagwat Singh which was first in time as against the report lodged by Yadram, came to be lodged at police station Kumher on 21. 7. 78. It had been alleged therein that, at about 4/5 p. m. in the evening of 21. 7. 78, Mohan & Roop Singh were grazing catties in the field of Bhagwat Singh so, he (Bhagwat Singh) alongwith his brother Prasadilal started drawing the catties out of the field and while they were taking the catties towards cattle house Paprera, in the way they saw the accused persons at the Choraha duly armed with Farsa, Lathi & Ballam etc. and that at that time, Nemsingh (accused) provoking his other companions to finish, opened a fire upon Bhagwat by his country made Katta but Bhagwat saved himself by sleeping down and that, Nemsingh fired two shots and then saying that the shots were not being fired from the Katta, so, attacked by lathies & Farsa and thereby Yadram & Dharma started beating with lathies upon Bhagwat and other accused persons gave lathies blow on the person of Prasadilal. As a result of beating, Prasadilal and Bhagwat allegedly fell on the earth and upon their hue and cry, Ninua " (Dw 3), Badle (Dw 4), & Raghunath Singh (Dw 5) rushed to them & saved them. According to the report of Bhagwat, their catties were also taken away by the accused persons. The report was lodged after Bhagwat and Prasadilal got themselves medically examined. Upon the aforesaid report, after usual investigation the challan was filed in the Court and after committal proceedings, accused persons, Namsingh, Ramdayal, Yadram, Roop Singh, Ram Khilari, Dharam Singh, Mohan Singh and Chhitaria were charged respectively under Sections 147 and 307, IPC. Prasadilal sustained four injuries whereas similarly, Bhagwat also sustained four injuries but Prasadilal sustained one fracture. ;