H.C. Goel, J.
(1) This is an appeal by Jai Bhagwan, Jai Gopal and JaiParkash against their conviction under section 325 read with section 34 IP Cand section 452/34 Indian Penal Code and the order directing their release on probation on their furnishing bonds in the sum of Rs. 5.000.00 each with one surety each in the like amount for a period of two years to keep peace and to be of goodbehavior. The three appellants were also directed to pay Rs. 500.00 each as costs of the prosecution by the impugned judgment and order of Mr. R.C. Jain,Additional Sessions Judge both dated 20/06/1983. The prosecution case stated in brief is that injured Dayal Dass and his brother Om Prakash Public Witness 6used to reside in house No. 367 village Tihar. All the six accused including the three appellants used to reside in house No, 197 village Tihar, the third or fourth house from the house of Dayal Dass. The five accused, other than Udho Dass accused, are real brothers. The relations between accused persons and the family of Dayal Dass, injured, were strained. A quarrel had taken place between the two parties prior to the date of occurrence or 7/11/1980. Both these parties were also earlier proceeded against under section 191 Criminal Procedure Code On 7/11/1980 at about 8 p.m. which was the day of Diwali festival, Om Prakash and Krishan Luthra, PWs were lighting candle son the roof of their house. Jai Bhagwan, Jai Parkash and Jai Gopal, the three appellants, came to the roof of the house adjoining to the house of thecomplainant. The appellants shouted at 0m Prakash and Krishan Luthra and told them that they would see as to how they would celebrate Diwali on thatday. On this 0m Prakash came down from the roof. Krishan Luthra went and lodged a report with the police about this incident. Then at 9 p.m. of the same day day, the three appellants came to the house of the complainant on a motor cycle armed with lathis. They parked the motor cycle in front of the house of Dayal Dass. They all went inside his house. Udho Dass coaccused was present outside the house and gave an .exhortation to his five-co-accused saying that they should finish Dayal Dass. On that Dayal Dasswas given beating with lathis by the three appellants, 0m Prakash saw thisoccurrence. He went inside a room of the house where women folk were present and could not come to the rescue of Dayal Dass. The other two accused viz. Jai Kishan and Jai Kumar came at the roof of the house of DayalDass. They pelted stones and brickbats from there inside the court-yard of Dayal Dass. None was, however, injured by those stones etc. 0m Prakash went to the police station Tilak Nagar and lodged the FIR. Dayal Dass was taken to the Willingdon Hospital by Lok Nath PW. As per the medical evidence Dayal Dass sustained a fracture of the shaft of 3rd, 4th and 5th left metacarpal bones, besides getting bruises on his bo and a Clm of 2' x1'on chin and a haematoma.
(2) The prosecution relied on the statement of the injured Dayal Dass and the only other eye witness 0m Prakash Pw 6 who supported the version of the prosecution at the trial of the case. The accused appellants in their statements under section 313 Cr.P.C. denied having come to the house of the complainant any having given any beating to Dayal Dass. They led some evidence in defense to show that the police bad registered a case under section 307 Ipc against Krishan Parkash and Dayal Dass on September 15, 1980,which was, however, later cancelled. The accused tried to show that the police was interested in the complainant and his family and particularly Si 0mPrakash of the Police Station Tilak Nagar was so interested. The learned trial court came to the conclusion that the three appellants had given lath blows to Dayal Dass. All the six accused had been charged for offences punishable under sections 147, 148, 452 read with section 34 and under section 307 read with section 34 IPC.
(3) The three appellants were convicted for the offences punishable under section 452/34 and section 325/34 IPC. They were, however, acquitted of the offences under sections 147 and 148 IPC. The three co-accused of the appellants viz. Udho Dass, Jai Kishah and Jai Kumar were acquitted of all the offences charged.
(4) As mentioned by me already above, the only material evidence of the prosecution consists of the statement of Dayal Dass Pw 2 and 0m Prakash PW 6. They narrated the prosecution version. They stated that all the three appellants had come to their house armed with lathis and all three of them gave beating to Dayal Dass with lathis. They also stated that Udho Dass accused had given exhortation to the appellants to furnish Dayal Dass and other two co-accused of the appellant, namely, Jai Kishan and Jai Kumar had pelted stones from the roof of their house in the court-yard of their house where Dayal Dass was beaten. The learned trial court rejected the testimony of both these witnesses in so far as they stated that Udho Dass accused had given the said exhortation to the three appellants and about the two co-accused of the appellants Jai Kishan and Jai Kumar having pelted stones from the roof of the house of Dayal Dass. About Udho Dass accused it was observed by the trial court that it was brought on the record that Udho Dass had no previous enmity with Dayal Dass or any of his brothers and, thereforee, it did not seem to be probable that he would have given exhortation to his co-accused i.e. the appellants to do away with Dayal Dass. As regards Jai Kishanand Jai Kumar it was observed that it seemed difficult, if not impossible, that they would have crossed over to the roof of the house of the complainant after crossing the roof of the intervening house and would have pelted stonesetc. from the roof top and that part of the prosecution story seemed to be nothing but an improvement made with the sole object of roping in two more brothers of the accused persons. The learned Additional Sessions Judge also observed that it came in the prosecution evidence that Jai Kishan and Jai Kumar had throws a cot after crossing over from the roof of the house, but the fact that the police did not take into possession any broken cot showed that that was an untrue statement of the prosecution witnesses. The learned trial court thus having rejected the part version of these two witnesses and being of the view that they were not wholly truthful witnesses and had imp leaded three accused persons, two of which were roped in being brothers of the three appellants, the question for consideration was as to how far it was sofa to convict the three appellants for the offences in question. The one important thing to note in this regard and which fact was also taken note of by the learned trial court but not given any consideration is that the prosecution version, namely, that the three appellants had given a number of lath blows to Dayal Dass was not supported by medical evidence as adduced on therecord. As per the medical evidence Dayal Dass got a fracture of the shaft of 3rd, 4th and 5th left metacorpal bones, a CLW on his chin and one other haematoma and some bruises over the body. The fracture of the three metacarpals clearly appears to have been caused by a single lathi blow. The CLW on the chin could be caused by striking against the surface of the courtyard in fall and so could the bruises on the body be caused in the fall on the ground and in the scuffle that took place. It may be that only two of the three appellants or any two of the five accused who are real brothers and all of whom quite similar names had quarrelled with Dayal Dass and they caused him hurt with lathis and Dayal Dass and his brother Om Prakash Pw 6 roped in one other brother of them, just as the learned trial court took the view and rightly so that both these witnesses appeared to have roped in the other two brothers of the appellants. It is also worth nothing that neither Dayal Dass Pw ; nor0m Prakash Pw 6 stated anything as to which of the three appellants gaveled blows or blow on which part of the former. They were also unable to say as to how many blows were given by which of the three appellants or who gave more blows and who gave less blows. They have not been able to say anything more than this that all the three appellants gave lathi blows to Dayal Dass. Under such a situation all the three appellants were entitled to be given the benefit of doubt as it was not possible to pin point as to which one or two of them had quarrelled with Dayal Dass and caused him hurt. The Do examination of any witness from the locality which was an inhabited area also went against the case of the prosecution. As regards the evidence of 0mPrakash Pw 6, apart from the fact that he is the real brother of Dayal Dassinjured, his presence at the time of the main occurrence was even doubtful.His cross-examination reveals that he did not take any action in removing Dayal Dass to the hospital or for giving him any medical aid while Dayal Dass remained lying unconscious at bids home. He stated that he came out of the room only when the police had arrived at their house. This conduct of the witnesses appears to be abnormal and inconvincing. It certainly lends support to the defense version that this witness was not present at the time of the occurrence and must have come there some time thereafter. In view of what has been said above I accept the appeal, set aside the conviction and the sentence of all the appellants and acquit them of all the offences giving them the benefit of doubt.