SHARMA, J. - (1.) BOTH these matters were heard together as the same arise out of a common judgment rendered by the learned trial Judge.
(2.) THE appellants, twenty five in number, were the accused on the file of learned Additional Sessions Judge No. 2, Alwar bearing Sessions Case No. 39/1998. Learned Judge vide vide judgment dated September 24, 1999 convicted and sentenced the appellants as under:- Accused Sohan Lal: U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer imprisonment for one year. U. /s. 148 IPC: To suffer Rigorous Imprisonment for one year and fine of Rs. 500/-, in default to further suffer Imprisonment for three months. U/s. 323/149 IPC: To suffer Rigorous Imprisonment for six months and fine of Rs. 200/-, in default to further suffer Imprisonment for three months. U/s. 324/149 IPC: To suffer Rigorous Imprisonment for six months and fine of Rs. 500/-, in default to further suffer Imprisonment for three months. Sentences were ordered to run concurrently. Accused (1) Chandgi Ram, (2) Buddha, (3) Banwari, (4) Deva, (5) Totiya, (6) Surjan, (7) Gugan, (8) Dariya, (9) Pappu, (10) Shish Ram, (11) Rampat, (12) Ramphal, (13) Sant Ram, (14) Srichand, (15) Surja, (16) Birju, (17) Veeru @ Veer Singh, (18) Thawaria, (19) Dharmapal, (20) Jai Dayal, (21) Rati Ram, (22) Rohitash, (23) Basanta and (24) Risal: Convicted under Sections 148, 324/149 and 323/149 IPC and and instead of sentencing them at once the benefit of Sec. 4 of Probation of Offenders Act was extended and they were directed to execute the bonds of Rs. 5000/- for keeping peace for two years. The prosecution case as pictured during trial was that the informant Raghuvir instituted a report at Police Station Kotkasim on September 15, 1990 at 8. 00 PM wherein it was alleged that on the said day around 7-8 AM Ghasi (since deceased) and Sunder went to the field bearing khasra No. 10 situated at Mauja Khairli, with the purpose of plaughing it with a tractor. When they reached there they found accused sitting there equipped with lathis, ballam, spears and a gun. The accused started demolishing boundary wall on the south of the said field. Ghasi tried to dissuade the accused. On the intervention of Ghasi, accused opened assault. Accused Sohan dealt a blow on the neck of the deceased with the spear. Chandgi fired a gun shot at Ghasi and other appellants also assaulted the deceased, as a result of which Ghasi died at the spot. During the assault on Ghasi, other members of complainant party namely Raghuvir, Jagram, Buddha, Sunder, Dilip, Abhay Singh, Shiv Charan, Subhram, Atar Singh, Matadeen, Ram Singh, Vimla, Dhanak, Sushma, Sajna and Kalawati reached the place of incident. These persons were also assaulted by the accused, as a result of which seventeen persons from the side of complainant suffered injuries. On the basis of the said report a case under Sections 147, 148, 149, 323, 324, 307, 302 and 447 IPC was registered and investigation commenced. After conducting usual investigation the charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge No. 2, Alwar Charges under Sections 147, 148, 307, 149, 323, 324, 325, 447 and 302 IPC were framed against the accused. The charges were denied and trial was claimed. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr. P. C. the accused claimed innocence and denied the prosecution case. In defence the accused examined two witnesses. On hearing final submissions the learned trial Judge convicted and extended the benefit of probation to 24 accused, but convicted and sentenced the accused Sohan Lal as indicated herein above. Having carefully gone through the record with the assistance of learned counsel for the parties we notice that in the course of the incident complainant party and accused party both sustained injuries. Two persons Ghasi and Kanhaiya were done to death. Ghasi belonged to complainant party whereas Kanhaiya was member of accused party. A look at the postmortem report (Ex. P. 24) of the deceased Ghasi Ram shows that he received following ante mortem injuries:- "stab Wound 3 cm x 2 cm x 5 cm Elliptical shaped. Longitudinal in direction & directing obliquely inside towards the right side of the neck upto see deep. The wound is filled with soft reddish clotted blood all the muscles. nerves & vessels underneath the wound are cut sharply. In the opinion of Doctor the cause of death was sever hemorrhage & shock because of stab wound in the neck. Injuries sustained by the members of the complainant party are as under:- Raghuvir (PW. 1) vide injury report (Ex. P. 4):- "1. Lacerated wound 3 cm x 1/2 cm x 1/4 cm on the lateral side of left thigh. 2. Lacerated wound 2 1/2 cm x 1/2 cm x 1/2 cm on medical side of Rt. thigh 3. Bruise 1 1/2 cm x 1 cm on back of Rt. fore arm. " Sunder Lal (PW. 4) vide injury report (Ex. P. 13):- "1. Lacerated wound 3 cm x 1/2 cm x 1/4 cm on left parietal area. 2. C/o pain left elbow joint. 3. Bruise 4 cm x 2 cm on Rt. scapular area. " Subh Ram (PW. 5) vide injury report (Ex. P. 14):- "1. Abrasion 3 cm 1 1/2 cm on left knee joint. 2. Bruise 2 cm x 2 cm on left deltoid area. " Ram Singh (PW. 7) vide injury report (Ex. P. 15) one bruise of 1 1/2 cm x 1cm on the palm surface of left hand. Jag Ram (PW. 9) vide injury report (Ex. P. 16):- "1. Incised wound 2 cm x 1/4 cm x 1/4 cm on the medial side of lower 1/3rd Rt. leg. 2. Bruise 2 cm x 2 cm on the posterior side of Rt. fore arm mid. 3. Bruise 1 1/2 cm x 1/2 cm x 1/4 cm on front of left elbow. Shiv Charan (PW. 12) vide injury report (Ex. P. 17):- "1. Lacerated wound 2 cm x 1/2 cm x 1/4 cm on the left parietal area. 2. Bruise 4 cm x 2cm on the back of left forearm. " Abhay Singh (PW. 8) vide injury report (Ex. P. 55):- 1. Lacerated wound 4 cm x 1/2 cm x scalp deep 2. Lacerated wound 2 1/2 cm x 1/2 cm x bone deep 3. Reddish bruise 10 cm x 2 cm & 8 cm x 0. 1 cm Rt. scapular region 4. Reddish bruise 4cm x 4 cm Smt. Bimla (PW. 11) vide injury report (Ex. P. 29):- 1. Painful swelling around left elbow joint. 2. Lacerated wound 1/2 cm x 1/4 cm x 1/4 cm on back of left index finger. 3. Lacerated wound 1 cm x 1/4 cm on back of left middle finger. 4. Painful swelling on back of left hand. Vide X-ray report (Ex. P. 21) she sustained fracture on base of proximal phalange of left middle finger. Dilip (PW. 6) vide injury report (Ex. P. 28):- 1. gun shot would 1 cm x 1/2 cm x bone deep on anterior side of Rt. elbow wound of entry. 2. Gun shot wound 1 1/2 cm x 1/2 cm x bone deep on the back of Rt. elbow wound of exit. 3. Bruise 2 cm x 2 cm on lower 1/3 rd left forearm 4. C/o pain left thigh. Karnawati vide injury report (Ex. P. 30):- 1. Painful swelling on dorsam of right hand 3 cm x 2cm. 2. C/o pain Rt. gluteal area 3. C/o pain left gluteal area Sushma vide injury report (Ex. P. 31) lacerated wound 2 cm x 1/2 cm x 1/4 cm on the occipital region of scalp. Somoti vide injury report (Ex. P. 32):- 1. Lacerated wound 4 cm x 1/4 cm x 1/4 cm on Rt. parietal area anterior rest. 2. Bruise 3 cm x 2 cm on anterior side of Rt. shoulder joint. 3. C/o pain Rt. elbow joint. Sajana vide injury report (Ex. P. 33) lacerated wound 2 cm x 1/4 cm x 1/4 cm on back of Rt. thumb. Amar Singh (PW. 16) vide injury report (Ex. P. 34):- 1. Lacerated wound 1 cm x 1/2 cm x 1/4 cm on occipital area. 2. C/o pain Rt. side neck. 3. C/o pain lateral side Rt. fore arm.
(3.) DETAILS of injuries sustained by the members of accused party are as under:- Banwari vide injury report (Ex. D. 15a) lacerated wound 1 cm x 1/2 cm x 1/2 cm on upper 1/2 of anterior side of right leg. Budh Ram vide injury report (Ex. D. 16a) lacerated wound 2 cm x 1/2 cm x 1/4 cm on left eye brow. Dariya vide injury report (Ex. D. 17a):- "1. Lacerated wound 1 1/2 cm x 1/2 cm 1/4 cm on upper part of sterunms. 2. Bruise 1/2 cm x 1/4 cm on the back of middle finger. 3. C/o pain occipital area. Gugan vide injury report (Ex. D. 18a) lacerated wound 2 cm x 1/4 cm x 1/4 cm in mid scalp area. Chandgi vide injury report (Ex. D. 19a):- "1. Incised wound 2 cm x 1/4 cm x bone deep on anterior side of mid area of right leg. 2. C/o pain Rt. shoulder 3. Abrasion 3 cm x 1cm on Rt. shoulder posteriorly 4. Bruise 2 cm x 1 cm on anterior side of left forearm mid. 5.C/o pain mid scalp. " As per postmortem report (Ex. D. 20a) deceased Kanhaiya sustained antemortem multiple injuries resembling gun shot wound on the upper part of left side of chest & and front of left shoulder. Average size of wound is 1/4 cm x 1/4cm, there is blackening around all wounds. In the opinion of Doctor the cause of death was shock due to sever internal hemorrhage from the left lung as a result of multiple gun shot wounds. Surjan vide injury report (Ex. D. 21a):- "1. Bruise Bluish coloured on the whole Rt. upper eye bid. 2. Bruise 3 cm x 1 1/2 cm on Rt. shoulder. C/o pain Rt. parietal area. " Sohan Lal vide injury report Ex. D. 22a sustained injuries and vide X-ray report Ex. D. 12 his right elbow was found fractured. It is contended by learned Senior Counsel for the appellant that the prosecution witnesses have indulged in making material improvements in their court statements upon their earlier version set forth before the investigating agency. There are numerous incongruencies and discrepancies with which the testimony of prosecution witness suffer. The site plan of the place of incident does not lend any corroboration to the ocular testimony of prosecution witnesses. The FIR has been lodged with an inordinate delay and the same casts a shadow of doubt on its veracity. The prosecution has miserably failed to show the proximate cause of genesis of occurrence of the impugned incident. The prosecution has endeavoured to give a slant to the entire case. It has not come with the true version of impugned incident and has endeavoured to screen the same from the learned trial Court. Learned Senior Counsel prayed to set aside the impugned judgment. Per contra, learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and urged that the appellant was rightly convicted and sentenced. We were taken through the statements of Sohan Lal recorded under Section 313 Cr. P. C. , wherein Sohan Lal stated that when he attempted to rescue Kanhaiya and Chandgi, Ghasi (deceased) made assault on him with Bhala and in the attempt of snatching the Bhala it caused injury to Ghasi. On the basis of the statement of Sohan Lal it is contended that the charge against Sohan Lal is established beyond reasonable doubt. Canvassing the grounds of instant revision learned counsel for the complainant prayed to convict the other 24 accused under Section 302/149 IPC. ;