N.N. Mathur, J.
1. These two appeals are directed against the judgment dated 01.4.1981 passed by the Addl. Sessions Judge, Nohar whereby the learned Judge acquitted all the accused respondents of offence under Sections 302, 302/149 I.P.C. However, the learned Judge convicted the accused appellants in S.B. Criminal Appeal No. 302/81 of offence under Sections 148 & 325/149 I.P.C. Each of the accused appellants have been convicted of offence under Section 148 I.P.C. and sentenced to one year's R.I. and to pay fine of Rs. 1000/- in default of payment to further under go 6 months' R.I. The appellants have also been convicted of offence under Section 325/149 I.P.C. and sentenced to 4 years R.I. and to pay fine of Rs. 1000/- in default of payment to further undergo 6 months' S.I. All the sentences have been ordered to run concurrently. The State has challenged the acquittal of the accused respondents of offence under Sections 302, 302/149 I.P.C. Thus, both the appeals arising out the same judgment are heard and disposed of by one common judgment.
2. The prosecution case briefly stated is that there was some dispute between the complainant party with the accused persons with respect to the plots and water. The deceased Banwari Lal belongs to the complainant party. It is alleged that on the fateful date i.e. on 08.12.1979 at about 10 p.m. while deceased Banwari Lal was sleeping in his house, the accused respondents came to his house and gave a call, whereupon, the deceased Banwari Lal cam out. As soon as he came out. The accused respondents Jhandu, Moola and Bhadar catch hold of him and dragged to a distance of nearly 150 feet. All the accused respondents started be labouring the deceased with lathis. It is also alleged that the accused Sahi Ram, Rameshwar and Ramjilal were armed with fire arms. The deceased raised a cry which attracted the eye witnesses PW/3 Sunder, PW/6 Sita Ram, PW/2 Om Prakash, PW/5 Sarbati and PW/4 Mandotri. The other witnesses PW/1 Godu Ram and PW/6 Pota Ram were already there. They tried to rescue the deceased but, they were also given beatings. Deceased Banwari received 8 injuries including 2 grievous injuries on the head, which in the opinion of the doctor were sufficient in the ordinary course of nature to cause death. The ladies tried to cover up Banwari Lal and in that process Sarbati PW/5 received 5 injuries. Mandotri PW/4 received 1 injury. Sunder PW/3 Sundar and Tora Ram PW/6 also received injuries on their person. Banwari Lal succumbed to injuries F.I.R. of the incident was lodged on 08.12.1979 at about 4.45 A.M. The police proceeded with the investigation. During the investigation, the accused persons were arrested and the weapons of the offence were recovered. After usual investigation, police laid chargesheet against 16 accused persons. Supplementary chargesheet was filed adding three more accused persons.
3. The accused persons pleaded not guilty of the charges levelled against them. The prosecution in support of the case examined as many as 17 witnesses. In statement under Section 313 Cr. P.C. the accused persons pleaded not guilty and stated that they have been falsely implicated. The trial court found that unlawful assembly was not formed with an object to commit murder of Banwari Lal. However, the learned Judge found that the object of unlawful assembly was to give grievous hurt to the deceased Banwari Lal. The learned Judge by impugned order acquitted the accused respondents of offence under Sections 302 and 302/149 I.P.C. but convicted of offence under Section 325/149 I.P.C.
The State filed application for leave to appeal against acquittal of the 19 accused persons. However, this court by order dated 16.10.1981 granted leave to appeal only against the accused respondents Jhandu, Moola, Bhadar, Ramjilal S/o Jhandu, Om Prakash, Mahaveer, Hans Ram, Mehar Chand and leave as against other accused persons was declined.
4. I have heard learned Public Prosecutor and the learned Counsel appearing for the accused respondents challenging their conviction of offence under Section 325/149 I.P.C.
5. It is contended by the learned Public Prosecutor that the learned trial court has committed an error in not considering that there is consistent evidence that about 10.30 P.M. the accused persons atleast 9 of them were armed with deadly weapons went to the house of the deceased Banwari Lal, dragged him and gave beatings resulting into his death. Out of 8 injuries, 2 injuries were grievous in nature caused on the vital part of the body. In view of this, all the accused respondents are liable to be convicted of offence under Section 302/149 I.P.C. on the other hand Mr. M.L. Garg, learned Counsel for the accused while supporting the judgment of the trial court challenged the conviction of the respondents of offence under Sections 148. 325/149 I.P.C. It is submitted that in a case of rioting the law is requires that the case of each accused should be separately discussed and evidence against each of them should be appreciated exclusively. It is further submitted that the doctor found only injuries No. 1 & 2 grievous in nature and all the other injuries have been found to be on non vital part of the body and they are simple in nature. The total injuries are 9 in number. There is no evidence to show that out of 19 accused persons, it is only the convicted respondents who have caused injuries and particularly the grievous injuries to the deceased Banwari. It is further submitted that the accused Bhadar has sustained 3 injuries. These injuries have not been explained by the prosecution. Thus, inference should be drawn that the prosecution has not come with clean hand.
6. We have considered rival contentions and scanned the prosecution evidence carefully. PW/1 Godu Ram has stated that in the night at about 10 P.M. his brother deceased Banwari Lal was sleeping in his room. He heard cries of Banwari and he came out of the room and saw that accused Jhandu, Moola and Bhadar had caught hold the deceased Banwari Lal and they were dragging him on the eastern side. After giving the name of all the accused persons, it is stated by him that they all gave him beatings by lathis. PW/2 Om Prakash, the son of the deceased Banwari has also given the statement almost in the same line. He has also stated that hearing cries of his father Banwari, his uncle Godu Ram, his mother PW/4 Mondori and PW/5 Sarbati also arrived there. They covered deceased father Banwari. They also sustained injuries. He has also stated that some of the accused persons fired. The statement of the other eye witnesses namely PW/3 Sundal, PW/4 Mandori and PW/5 Sarbati is almost in the same line. The reading of these witnesses clearly shows that the 9 accused persons against whom the leave has been granted, formed an unlawful assembly and assaulted deceased Banwari.
7. PW/14 Dr. Sahi Ram conducted the post-mortem of the dead body of the deceased Banwari Lal and found following injuries in his person:
1. Hamotoma 2/1/2' x 2' over right tempero-parietal area of scalp.
2. Hamotoma 2' x 1-1/2' over left tempero-parietal area of scalp.
3. Lacerated wound 3/4' x 2'x2' inter-parietal area of scalp.
4. Two abrasion 1/2' x 1/3' each over left fore-head.
5. Abrasion 1/2' x 1/2' over root of left side of nose.
6. Bruise 2' x 3/4' dorsal aspect of left wrist-joint.
7. Abrasion 1/2' x 2'dorsum of left hand.
8. Abrasion 3/4' x 1/2' front and middle of right leg.
8. He has proved post-mortem report Ex. P/30. He found injury Nos. 1 & 2 grievous in nature. All the other injuries were simple in nature caused by blunt object. In his opinion the injuries were sufficient in ordinary course of nature to cause death. As per the prosecution case, there were 19 accused persons who assaulted the deceased Banwari but there are only 8 injuries out of them only 2 injuries are grievous and rest of the injuries are simple in nature. It clearly appears that the alleged eye witnesses have given exaggerated version of the incident. One of the accused namely Bhadar has also sustained injuries which have not been explained. Thus, it clearly appears that an object of unlawful assembly was not formed to commit murder of deceased Banwari and they can be held guilty only for forming unlawful assembly with an object to cause grievous injuries to the deceased. Thus, in our view, there is no infirmity in the order of the learned trial court acquitting all the accused of offence under Section 302/149 I.P.C. and convicting them for offence under Section 148/325 I.P.C. The learned Counsel has not challenged the conviction of the accused persons for offence under Section 325/149 I.P.C.
9. In view of the aforesaid discussion, we find no merit in the appeal filed by the State and the same is accordingly dismissed. The appeal filed by the accused persons in partly allowed only to the extent that while confirming their conviction of offence under Section 148, 325/149 considering the facts and circumstances of the case, the ends of justice would be met if the sentence is reduced to the period already undergone. Accordingly, the sentence is reduced to the period already undergone. The accused persons are on bail. Their bail bonds shall stand discharged.