N.K. JAIN, J.—This appeal is directed against the judgment of learned Sessions Judge, Merta dt. 26-6-79 whereby he convicted and sentenced the appellants as follows with a direction that all the sentences shall run concurrently: —

Sanwata Ram, Ramkaran, Jeetu Ram, Moolaram :

U/s. 148 IPC and sentenced to 1 years R.I. and u/s. 326 read with Sec. 149 IPC sentenced to 3 years R.I.

Deo Karan :

U/s. 148 IPC and sentenced to 1 years R.I. and u/s. 307 IPC. sentenced to 5 years R I. and u/s. 326 IPC sentenced to 5 years R.I.

3. Brief facts of the prosecution case are that one Tejaram lodged a report with an allegation that in the night intervening 11th and 12.07.1978 while he and Dala Ram were sleeping in the Gadal. Five accused persons gave beating to Dalaram with axe and Pharsies, as a result of which Dala Ram had received injuries. On this police registered a case and started investigation. The injured was medically examined by Dr. Pratap Singh who found five injuries and prepared injury report Ex. P. 2. The accused appellants were arrested and at the instance of accused Pharsies and Kulharies were recovered. After usual investigation police submitted a challan before the learned Magistrate who committed the case for trial to the court of learned Sessions Judge. The accused appellants pleaded not guilty and claimed trial. In support of its case, the prosecution has examined 11 witnesses. The accused appellants in their statement u/s. 313 denied the charges and in defence examined two witnesses. On conclusion of trial the learned Sessions Judge found the case well established against the accused persons and convicted and sentenced them as mentioned above. Hence the accused appellants preferred this appeal.

3. Mr. M.M. Singhvi, learned counsel for the appellant does not challenge the incident but submitted that all the family members have been falsely implicated due to old revelry and the learned Sessions Judge has not appreciated the number of injuries vis-a-vis the number of accused persons. It has also been submitted that the incident is of 11.07.1978 so it is not desirable to send the accused appellants in jail. Mr. Singhvi, placed reliance on a decision of the Supreme Court in Naib Singh vs. State of Punjab(l).

4. Mrs. Chandralekha, learned Public Prosecutor has opposed the appeal.

5. I have heard Mr. M.M. Singhvi, learned counsel for the appellants and Mr. Chandralekha learned Public Prosecutor and perused the record.

6. In this case it is pertinent to note that the learned trial court has recorded in its finding that three eye witnesses have been introduced and false evidence have been fabricated, in view of this finding the testimony of the witnesses on other material should be read carefully and cautiously. PW 9 Tejaram, father of the injured Dala Ram who was sleeping near him has stated that accused Sanwata Ram was armed with Kulhari and the remaining four accused were armed with Pharsies. He has also stated that from one side Dhanna, Bharu and Prabhu reached the place of incident and simultaneously the accused left the place of occurrence. He has not stated anything as to how the occurrence took place and who were the four persons. Thus his statement is of no help. So, the entire case against the accused person rest on the evidence of injured PW 6 Dala Ram who has stated that Deo Karan inflicted blow on his head which was saved by his hand and due to that he sustained injury on his hand. Except this he has not attributed any of the injury to any of the accused. There is nothing on record to show that the four accused appellants have participated in the assault. Five injuries were found on the person of injured Dala Ram whereas 5 persons of the same family have been roped in on the basis of old rivalry which does not appear to be probable. In the absence of any independent witness no case is made out against them. Therefore, the conviction of the accused Ramkaran, Jeetu, Moola Ram and Sanwata Ram cannot be sustained and their convic

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