JUDGMENT
Farooq Hasan, J.
1. In Sess. case No. 67/83 the Sessions Judge, Bharatpur while acquitting the appellants Under Section 307 or 307/149, IPC, convicted them Under Sections 148, 324 & 325/149, IPC & sentenced to undergo 6 months RI with a fine of Rs.200/-, one year RI and one years RI with a fine of Rs.300/- respectively.
2. Learned Counsel for the appellants contended that in the case at hand, challan against seven persons was filed but after trial, the trial Court found that only two person-present appellants actively participated in the incident and further found that the inflictors upon the injured persons were five or more than five but according to the injuries found on the persons of the accused persons & the version given out about the events of the incident, their presence at the place of incident in comparison to the prosecution version about the events & the place of incident cannot be deemed. Taking the aid of the aforesaid findings of the trial Court, learned Counsel for the appellants wrangled that no case Under Section 147, or 148, or 149, IPC is made out and, therefore, the conviction to the appellants out of seven charged persons, Under Sections 324, & 325, with the aid of Section 148, or 149, IPC, is erroneous.
3. Having considered the point raised and perused the judgment of the trial Court, I find that initially, the report was lodged involving 17 persons in the commission of the crime but after usual investigation, 10 persons were left out by the investigating officer according to whom, participation of 10 persons as per the material on record, was not proved/made out prima facie by the prosecution and similarly, the trial Court also found that the participation of seven persons including the appellants could not have been established ad proved beyond reasonable doubt of the injuries and its numbers on the person of the injured, Raghuvir, as doubtful and the presence of those five persons who have been acquitted has not been proved at the place of incident.
4. Having viewed in this state of the findings of the trial Court, itself that only appellants were present the time of the incident and on other persons in the company of the present two appellants have been proved to have been seen at the place of incident the conviction Under Sections 325 and 324, with the aid of Section 148 or 149, IPC, is not tenable and not sustainable. And, this appeal can only be allowed on this ground alone.
5. Consequently, this appeal succeeds and is allowed. The conviction & sentence imposed by the trial Court for the offences Under Sections 148, 324, & 325/149, IPC are set aside. The appellants are acquitted of the offence with which they were charged and convicted under judgment impugned in this appeal. They are on bail and need not surrender. The record be sent back. To the above extent, the impuged judgment is modified.