ARORA, J. - (1.) THESE two appeals are directed against the judgment dated March 23. 1977, passed by the Additional Sessions Judge No. 2. Jodhpur, by which the learned Additional Sessions Judge convicted and sentenced accused Nora Ram for the offence under Section 302 I. P. C. and the remaining accused for the offence under section 323 I. P. C. and acquitted accused Bhala Ram of the offences he was charged with and tried.
(2.) THE incident, which led to the prosecution of the present accused-appellants as well as one Bhala Ram, took place on March 8, 1974, at about 4. 00 p. m. in village Pal. According to the prosecution, Balu Ram, Gokul Ram, Binja Ram, Balu Ram S/o Boraji, Chhela Ram, Pokar Ram and Keena Ram, all by caste Bhambhies started from the house of Balu Ram towards the house of his father. THEy were playing on a chung as it was the next day of Holi. THEy reached near the water-tap of Meghwalon-ka-bas in village Pal, where Kheta Ram, Nora Ram, Chhagna Ram,himmata Ram, Hasta, Bhala Ram, Chuna Ram, Mana Ram, Girdhari, Loona Ram, Naagji and Haala were sitting. Out of these persons, who were sitting there, Kheta Ram inflicted injury with a Lathi on the right side of the head of Keena Ram and Nora Ram, inflicted an injury by Lathi (Gedi) over the ear of Keena Ram. Girdhari, inflicted one injury on the leg of keena Ram. Nora Ram, inflicted one injury by a Dhariya on the head of Pokar Ram. Mana Ram, inflicted one injury by Lathi near the right eye of Pokar Ram. Pokar Ram and Keena Ram fell down after receiving the injuries. Nathiya, Gokul and Chhela Ram, also, received injuries by Lathis. Several persons assembled there and thereafter they took Keena Ram and Pokar Ram to Jodhpur Hospital, Jodhpur. THE cause of this incident, given in the F. I. R. , was on account of party-faction in the elections and the installation of a public tap in the Bas of Meghwals and the land dispute regarding the land of Looniya. THE report of this incident was registered at Police Station, Jhanwar, on March 8, 1974, at about 11. 30 p. m. on the basis of the statement of Balu Ram recorded by the Station House Officer, Police Station, Jhanwar, in village Pal. The appellant Nora Ram was tried by the learned Additional Sessions Judge No. 2, Jodhpur, for the offence under Sections 148,302,307 and 323/149 I. P. C. while the other accused-appellants alongwith one Bhala Ram, were tried for the offences under Sections 147, 302/149, 307/149 and 323 I. P. C. The prosecution, in support of its case, examined twelve witnesses and exhibited 16 documents. The accused, in their defence, examined four witnesses and exhibited 13 documents. The learned Additional Sessions Judge, after trial, convicted the accused Nora Ram for the offence under Section 302 I. P. C. and acquitted him of all the other charges. The learned Additional Sessions Judge, also, acquitted accused Bhala Ram of all the offences. Accused Mana Ram, Chuna Ram, Chhagna, Himmata Ram, Kheta Ram, Mohan, Girdhari, Loona Ram and Hasta were convicted and sentenced by the learned Additional Sessions Judge for the offence under Section 323 I. P. C. but they were acquitted of all the other offences, for which they were charged-with and tried. Aggrieved with the judgment, passed by the learned Additional Sessions Judge, the accused-appellants preferred D. B. Criminal Appeal No. 160 of 1977. The State, also, filed D. B. Criminal Appeal No. 304 of 1977 against the accused-respondents as well as Bhala Ram against their acquittal for the other offences. The nature of evidence, produced by the prosecution, consists of the evidence of PW 1 Pokar Ram, PW 2 Binja Ram, PW 6 Balu Ram, PW 7 Chhela Ram, PW8 Gokul Ram and PW 9 Nathiya, who were eye witnesses to the occurrence. Out of these eye-witnesses, PW1 Pokar Ram, PW 7 Chhela Ram, PW8 Gokul Ram and PW9 Nathiya are the injured witnesses. PW3 Jalam Singh was the Head Constable, Police Station, Jhanwar, who recorded the statements and recovered the Dhariya Ex. 1. PW 4 Ramu Ram, PW 5 Rehman and PW 11 Sagar Ram are the Motbir witnesses to the recoveries. PW 12 Ram Lal was the Head Constable posted at Police Station, Jhanwar, who investigated the matter only for a day. Bhopal Singh, the Station House Officer, who investigated the case and presented the challan, was not produced by the prosecution and was produced by the defence as DW 4. PW 10 Dr. P. Dayal was the Medical Jurist, M. G. Hospital, Jodhpur, on the relevant day, who examined the injured Gokul Ram, Chhela Ram, Nathiya and Pokar Ram. He, also, conducted the post-mortem on the dead body of deceased Keena Ram. Accused Nora Ram, Mana Ram, Loona, Hasti Mal, Himmata Ram, Bugla and Chhagna, also, received injuries and they were medically examined by Dr. Mutha and their injuries reports have, also, been placed on record and they are EX. D. 6 to EX. D. 12. The learned Additional Sessions Judge, after considering the evidence on record, came to the conclusion that it was a case of sudden free- fight at the place of the occurrence and the accused neither formed an unlawful assembly nor they committed any offence in furtherance of any common object. He, therefore, acquitted them of the offence under Sections 147, 148, 307/149, 302/149 and 323/149 I. P. C. and convicted the accused with respect to their own act of inflicting injuries. We would, now, like to consider the evidence produced by the prosecution. The prosecution case mainly rests upon the evidence of the six eye-witnesses, out of which four are the injured witnesses. Pw 1 Pokar Ram, who is an injured, has stated that on the next day of Holi, i. e. , on the day of Ramashyama at about 4. 00 p. m. , he, alongwith Prema, Natha, Binja, Chhela and Gokul, was going to Bora Ram's house in a Holi Gair. When they reached near the house of Bora Ram, the accused were sitting out-side the house of Sukha and Mana. Accused Nora Ram was armed with a Dhariya and all other accused were armed with Lathis. As soon as they reached there, the accused started giving beatings to them and all were saying "maar DO MAAR DO". Accused Mana inflicted injury on the right side of his head while accused Nora inflicted injury by Dhariya on his head. The other accused, also, inflicted injuries upon him, but who inflicted injuries at what places, he is unable to say. Kheta Ram inflicted injury by Lathi on the head of Keena Ram and thereafter Nora Ram inflicted injury by Dhariya on the head of Keena Ram. After receiving these two injuries, Keena Ram fell down and thereafter Girdhari inflicted one injury by Lathi on the leg of Girdhari. These persons gave beatings to them on account of party-faction. The complainant-party is in the Congress-Party while the accused are in opposite party and, therefore, they had given beatings to them. In cross-examination, he has admitted that after receiving the injuries, he became unconscious and remained unconscious for a month and was not even in a position to speak. He was even unable to understand and is not in a position to say that during this period of one month, who came to him. He received the information regarding the death of Keena Ram only after he was relieved from the hospital and he did not give any statement to the police during this period of one month. He has, also, admitted that the houses of all the accused are in that Gawad and near the place of the incident and Papiya S/o Mana died only two days before Holi, i. e. , three days before the date of the incident and it is the normal practice in the village that the people do assemble at the door of the person grieved to pay hommage. This witness has named only four accused persons, who inflicted injuries. According to this witness, Mana Ram and Nora Ram inflicted injuries on his head of kheta Ram and Nora Ram inflicted injuries on the head of Keena Ram and Girdhari inflicted Lathi injury on the leg of Keena Ram. Thus, this witness assigns the infliction of the injuries to accused Mana Ram, Nora Ram, Kheta Ram and Girdhari and did not name-out any other accused and gave only a general statement that all the other accused were saying "maar DO MAAR DO" and started giving beatings to the members of the complainant party.
(3.) PW 2 Binja Ram has stated that on March 8, 1974, at about 4. 00 p. m. , he, Pokar Ram, Keena Ram, Gokul Ram, Balu, Chhela Ram and Nathu were going in a Holi-gair. Keena Ram was having a Chang and Pokar Ram was having a 'jhinjhar' while all other were empty- handed. When they reached near the corner of his house, all the accused came there. Nora Ram was armed with a Dhariya and all other accused were armed with Lathis. Kheta Ram inflicted injury on the right side of the head of Keena Ram. Thereafter accused Nora Ram inflicted injury on the head of Keena Ram by the Dhariya. Keena Ram, after receiving these injuries, fell down and thereafter Girdhari inflicted injury by a Lathi on the leg of Keena Ram. Mana Ram and Nora Ram also, inflicted injuries on the head of Pokar Ram and thereafter all the accused started giving beatings to the members of the complainant party and the injured Pokar Ram, Nathiya, Gokul Ram and Chhela Ram. In cross-examination, he has admitted that all the accused were sitting near the place of the occurrence in the Chowk. The house of all the accused persons are situated in the Chowk. This witness has denied the presence of injuries on the persons of the accused and, also, stated that they did not give beating to any of the accused. This witness, also, implicated only accused Kheta Ram, Nora Ram, Girdhari and Mana Ram. Pw 6 Balu Ram has stated that on the next day of Holi of the last year, they were going in the Gair at about 4. 00 p. m. towards the house of his father Bora Ram and were playing on the Chang. When they reached near the corner of the house of his father, all the eleven accused' were sitting there. Nora Ram was armed with Dhariya while all the other accused were armed with lathis. When they reached near the corner of the house of his father, all the accused followed them by saying "maaro MAARO" and thereafter Kheta Ram and Nora Ram inflicted injuries on the head of Keena Ram; Girdhari inflicted injury on the leg of Keena Ram, and Mana Ram and Nora Ram inflicted injuries on the head of Pokar Ram. All other accused were crying "maaro MAARO". Whether the remaining accused inflicted injuries to any members of the complainant- party, he cannot say. This witness, in cross-examination, has admitted that the houses of all the accused are situated near the place of the occurrence and all the accused were sitting out side their house and there was a dispute between the members of the complainant party and the accused party on account of water tap, which was installed in the Bas of Meghwals. He has, also, admitted that two days before the occurrence, Mana Rain's son died and the accused are relatives. This witness has, also, named only four accused, viz. , Kheta Ram, Mana Ram, Nora Ram and Girdhari, as the assailants. Pw 7 Chhela Ram is the other eye-witness who has staled that on the next day of Holi, they were going in the Gair with the Chang. All the accused followed them by saying "maaro MAARO" and at that time, Mora Ram was armed with Dhariya and the other accused were armed with Lathis. Kheta Ram inflicted injury by lathi on the head of Keena Ram, while Nora Ram inflicted injury by Dhariya on the head of Keena Ram. Girdhari inflicted injury with Lathi on the leg of Keena Ram when Keena Ram had already fell down. Thereafter Mana Ram and Nora Ram indicted injuries with Lathi and Dhariya, respectively, on the head of Pokar Ram. Thereafter all the accused started giving beating to the members of the complainant party. He was given beating by accused Hastiya, Looniya, Chuhiya and Mohan by Lathis. This witness was confronted with his police statement Ex. D. 3 and he has denied all the portions which were put to him in the cross-examination and slated that he had not stated so before the police. In the statement before the police, this witness has stated that the incident took place near the water-tap while he has denied this fact in his statement before the Court and stated that he never stated so before the police. Certain portions, which he stated in his statement before the Court, when confronted the same with the police statement Ex. D. 3, he stated that he stated so before the investigating officer and he cannot say why those portions do not find mention in his police statement. In the cross-examination, he has admitted that he cannot say that which of the accused inflicted which of the injuries to him and on what place, but he received the injuries on right leg and left eye. This witness has received only four injuries, out of which, two were bruises, one was incised wound and one was irregular swelling. The part of the injuries have been assigned to Kheta Ram, Mana Ram, Nora Ram and Girdhari and even as per the statements of Pokar Ram, Binja Ram and Balu Ram, these were the only four accused who gave beatings to them. This witness, in the examination-in-chief, has stated that accused Hastiya, Looniya, Chuniya and Mohan inflicted injuries by Lathis, but in the cross-examination, he has admitted that he cannot say that which of the accused inflicted injuries to him and on what parts. The statement of this witness, thus, clearly shows that later on an improvement has been made by the prosecution in order to implicate all the accused otherwise at the initial stage, the prosecution proceeded only against the four accused, viz. , Kheta Ram, Nora Ram, Mana Ram and Girdhari and therefore, the evidence of this witness, so far as the part assigned to the accused persons other than these four accused, cannot be relied upon. ;