K. C. SHARMA, J. - (1.) THIS criminal appeal by 12 accused appellants arises out of the judgment and order dated 30. 7. 2001 passed by the learned Sessions Judge, Sawaimadhopur, by which the learned Judge has convicted and sentenced the appellants in the following manner: Under Section 148 IPC : To undergo 2 months' rigorous imprisonment each Under Section 302, in the alternative under Section 302/149 IPC : To undergo life imprisonment with a fine of Rs. 5000/- each, in default of payment of fine, each to further undergo two months simple imprisonment Under Section 326, in the alternative under Sec. 326/149 IPc To undergo 3 years rigorous imprisonment with a fine of Rs. 2000/- each, in default of payment of fine, each to further undergo one month's simple imprisonment Under Section 325, in the alternative under Section 325/149 IPc To undergo 2 years rigorous imprisonment with a fine of Rs. 2000/- each, in default of payment of fine, each to further undergo one month's simple imprisonment All the sentences were ordered to run concurrently.
(2.) THE facts leading to the present appeal are that on 17. 10. 1999 the police recorded Parcha Bayan of Katol alias Gauri Shanker in General Hospital Sawaimadhopur, wherein he stated that on the day of incident i. e. 17. 10. 99 at 5. 30 PM he along with Rambilas, Ramkalyan, Daulatram and Mool Chand father of the complainant was sitting at the well. In the meantime, Mst. Kamla wife of Ramkalyan came to fetch water at well known as Baman- wala. Accused Asharam and Murari Sons of Bajranglal, Babu S/o Rati Ram, Bhartlal S/o Babu, Moolchand, Shyoji S/o Harji, Ratan S/o Harji, Phool Karan S/o Chatru, Harphool S/o Bharta, Mulya S/o Rati Ram, Hanuman S/o Mulya duly armed with lathi, gandasi and Kulhadi came from the well of Asharam. It was alleged that accused Asharam and Mulya Ram were armed with Gandasi, while Harphool and Phool Karan were armed with Kulhadi and rest of the accused were armed with lathis. THE accused persons, in order to kill them, opened attach and started belabouring hem. Accused Asharam inflicted a gandasi blow on the mouth of Rambilas, as a result of which his lip was cut and teeth were broken, while accused Mulya inflicted a gandasi blow on the head of Rambilas. Accused Harphool inflicted Kulhadi blow on the hand and head of Ram Kalyan, while Phool Karan inflicted axe blow on the head and hand of Daulat Ram. Rest of the persons caused injuries on the head and shoulders of complainant. THE house and cry attracted the attention of Mst. Kamli who came running from the well, but the accused persons did not spare her and inflicted injuries to her also. Mst. Lata W/o Rambilas also came at the scene, but she too was given beating. Ultimately, having seen the villagers, the accused persons escaped from the place of incident. THEreafter all the injured left for hospital in a Jeep of one Hajari Mali. It was stated that except complainant, the condition of other injured was precarious. On the basis of aforesaid Parcha Bayan, the police registered a case against the accused persons for offence under Sections 147, 148, 149, 323, 324 and 307 IPC vide FIR No. 323/99 and proceeded with the investigation. In the course of investigation injured Ram Kalyan succumbed to his injuries and accordingly Section 302 IPC was added. Considering the nature of injuries, the police further added Sections 325, 326 and 379 IPC. Having completed investigation, the police submitted a charge sheet against the accused persons in the Court of learned Magistrate. The learned Magistrate having found the offence exclusively triable by the Court of Sessions, committed the case of the Court of Sessions. On the basis of evidence and material collected during investigation and after hearing arguments, the learned Trial Court framed charges. The accused denied the charges and claimed trial. In order to prove its case, the prosecution examined as many as 24 witnesses and got exhibited 79 documents. AFter the prosecution evidence was over, the accused were examined under Section 313 Cr. P. C. In their explanation, the accused stated the prosecution case to be false. Accused Mool Chand in his explanation started that they have 11 biswas of land in village Jatwada-Kalan and the complainant party was trying to grab their land by force. He further stated that earlier the members of complainant party had caused injuries to Mahendra and Bharat and a case to that effect was already going n in the Court and that being the reason the complainant has falsely involved them. Some what similar explanation has also been offered by other accused persons. At the conclusion of trial, the learned Trial Court found the accused appellants guilty of the offences charged and accordingly convicted and sentenced them in the manner stated herein above.
(3.) WE have heard learned counsel for the appellants, learned Public Prosecutor and the learned counsel appearing for the complainant and scanned the evidence and material available on record. Mr. Sogarwal, appearing for the appellants strenuously contended that the learned Trial Court has committed grave error in convicting appellants Mahindra, Babu Lal, Ratan Lal, Mool Chand S/o Harji, Sheoji and Murari. Referring the statements of eye witnesses, learned counsel argued that none of the 5 witnesses who alleged to have seen the incident has stated that the above named six appellants formed unlawful assembly. Except that these six appellants duly armed with lathis were present at the place of incident, none of the witnesses has been able to assign overt act of these appellants. In this background, learned counsel argued that above named six appellants deserve to be acquitted of the offences charged with. We have given our thoughtful consideration to the above argument. In the FIR Ex. P-49 there is no allegation of beating having been given by appellants Mahendra, Babu Lal, Ratan Lal, Mool Chand S/o Harji, Sheoji and Murari either to the deceased or any member of the complainant side. The FIR simply reflects that the above named six appellants duly armed with lathies came along with other appellants. It does not mentions the overt-act of any of these six appellants. That apart, five witnesses, namely, PW3 Gauri Shanker, PW9 Daulat Ram, PW13 Mst. Kamla, PW16 Ramvilash and PW18 Mst. Lata have been introduced as an eye witnesses of the incident. All these eye witnesses have given omnibus statement inasmuch as, according to these eye witnesses, these appellants inflicted injuries. However none of the eye witnesses has been able to state as to which of these six appellants inflicted injuries to which of the injured and on which part of their body. In this view of the evidence, the prosecution has not been able to establish beyond doubt the participation of these six appellants in the commission of crime, except that they came at the place of incident along with other appellants and as such it cannot be concluded that the above named six appellants were also the members of unlawful assembly and therefore, they are entitled to be acquitted of the offences for which they have been found guilty. ;