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It is therefore prayed that the appeal filed by the State and the revision petition filed by the complainant party may be allowed as prayed for.

We have considered the rival submissions, perused the evidence on record and respectfully gone through the cited case law.

Record reveals that the trial court has in the earlier part of the judgment noticed deposition made by the prosecution witnesses with reference to specific overt-act attributed to the accused but, while deciding the question of unlawful assembly, it has segregated the accused in two groups; one of those, who have been named in the first information report and, another, who have not been named in the first information report. The trial court acquitted eight accused holding that neither they are named in the FIR nor most of the eye witnesses named them in their statement given to the police under Section 161 Cr.P.C. Third test that was applied by the trial court was that the prosecution witnesses, in their depositions, also do not assign any overt-act to them. Mere presence at the scene of occurrence, does not as such make them member of unlawful assembly. Nothing was recovered from six out of these eight accused. Recovery made at the instance of accused Rujdar and Majid Khan was neither believed nor held sufficient to connect them with the crime. Ninth accused acquitted by the trial court is Himmat Khan as he was merely shown present at the scene of occurrence by some of the eye witnesses, and only one of them i.e. Balvindra Singh (PW-10) made allegation that he exhorted other accused to murder Bagh Singh (PW-2). Learned trial court, on seeing accused Himmat Khan in the court in flesh and blood, observed that this man, who was 85 years old, was not even able to properly stand in the court. His presence at the scene of occurrence was only as an onlooker and therefore he could not be treated as a member of unlawful assembly. The reasonings given by the trial court for acquittal of these nine accused cannot be faulted. Appeal by the State and revision petition filed by the complainant against their acquittal therefore deserve dismissal.

Contention with regard to enormous delay in recording the statement of number of prosecution witnesses before the police under Section 161 Cr.P.C., has to be appreciated to the extent their statements substantially tally with those, whose statements were recorded on the same day. Their statements, of-course, if they have been confronted with the previous version during cross-examination, would have to receive greatest amount of scrutiny by the court to the extent of improvements and exhortations, to rule out the possibility of any innocent onlooker getting punished.

When we analyze the evidence of this case in the light of overt-act attributed to the accused, to decide as to which of the accused fall in the first category, we find that Thakur Singh (PW-1) has blamed accused-appellant no.1 Jalla Khan of inflicting injury on the head of Bagh Singh. Pintu Singh (PW-7) has named Jalla Khan on allegation of attacking Darshan Singh. He has been consistently named by most of the witnesses of causing injury on the head of Bagh Singh by 'farsi', though, Bagh Singh has received simple incised wound there. Bagh Singh (PW-2) himself has also attributed his such head injury to Jalla Khan and has further alleged that Jalla Khan and Munshi exhorted other accused to kill Birju Singh. Manindra Singh (PW-4) has stated that Jalla Khan hit Manindra Singh with 'farsi' on face. Pintu Singh (PW-7) has alleged that Jalla, Mohra and Deenu attacked deceased Darshan Singh. Rajendra Singh (PW-9) has stated that Jalla, Deenu and Mohra had attacked Darshan Singh, as a result of which he fell down. Bagh Singh (PW-2) has stated that Jalla and Munshi exhorted other accused to kill Birju Singh. Balvindra Singh (PW-10) has stated that Jalla along-with Deenu and Mohra hit deceased Darshan Singh by 'farsi', 'kulhari' and 'tanchia'. This witness also named Jalla along-with nine other accused who gave severe beating to deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa' and 'tanchia'. Babban Singh (PW-13) has specifically named Jalla Khan amongst ten accused for severely beating Preetam Singh by 'farsi', 'tanchia' and 'lathis'. He has further alleged that his father Darshan Singh was attacked by Deenu, Mohra and Jalla by 'kulhari', 'gandasa' and 'farsis'. Recovery of 'farsi' has been made at the instance of accused Jalla vide recovery-memo Exhibit P-11.

Accused-appellant no.18 Aashin has also been shown present along-with about 100 other persons at the scene of occurrence, by Bagh Singh (PW-2). Roshan Singh (PW-3) has stated about his presence in the crowd of about 60 persons. Manindra Singh (PW-4) has named him amongst as many as 30 co-accused. Mahindra Singh (PW-6) has stated his presence at the scene of occurrence. Balvindra Singh (PW-10) has alleged his presence at the scene of occurrence and that he, along-with five other accused, was giving exhortation to Jalla Khan for killing Bagh Singh, and that he along-with Mustaq, Shakil and Rujdar dragged deceased Birju Singh to their house. But, no other witness has supported him in respect of allegation of exhortation or dragging of deceased Birju Singh, though they generally make such allegation against all accused. With respect to accused-appellant Aashin, Kuldeep Singh (PW-12) has alleged that this accused inflicted a 'farsi' blow on his head and Fakru inflicted a pipe blow on left temporal bone of his head but he cannot say with certainty as to who caused injury on his jaw. Injury-report of Kuldeep Singh has not been produced and exhibited on record, but his bed-head-ticket (Exhibit P-169) has been proved by Dr. Pradeep Gupta (PW-26). The bed-head-ticket indicates that it was a case of assault on 24.11.2005 and the patient came well oriented. There was fracture of left zygoma and mandible bone and swelling over face. X-ray of zygoma and mandible bone was advised. CT Scan for facial bone was advised. Fracture of Zygoma was found. After surgery, the zygoma was elevated to normal position and the fracture of fronto zygomatic was fixed with introsem wires. Dr. Pradeep Sharma (PW-26), who has proved this document, has in his statement merely proved the fact of the surgery of zygoma bone and that bones of the jaw and zygoma were found fractured. It has thus not been proved whether Kuldeep Singh (PW-12) received an injury on the head by 'farsi'. Besides, Kuldeep Singh (PW-12) has alleged that (1) Mohra had 'tanchia', (2) Rukku and (3) Munshi had 'danti', (4) Aashin, (5) Jalla, (6) Dina and (7) Samsu had 'farsi', and all of them gave severe beating to his brother Gagan Singh, on his head. They also gave beating to him (Kuldeep Singh) on his head, temporal bone and jaw. Fakru had hit him on his temple with pipe. Aashin delivered a 'farsi' blow on his head but he did not remember who caused injury on his jaw. Recovery of 'farsi' has been made at the instance of Aashin vide recovery-memo Exhibit P-27. Though, this witness has alleged that accused-appellant Aashin inflicted first blow on his head but there is no corresponding incised wound by sharp edged weapon on his head. Had there been any such injury, it would have certainly found mention in the bed-head-ticket (Exhibit P-168) proved by Dr. N.C. Punia (PW-25). The allegation therefore that all seven accused armed with sharp edged weapons, caused injuries on the head of injured Gagan Singh becomes doubtful because of lack of corresponding number of injuries on his head. Besides, the other six accused, namely, Mohra, Rukku, Munshi, Aashin, Jalla, Dina and Samsu, named by this witness on such allegation are already falling in the first category. Allegation against accused Aashin of causing this injury is therefore not proved beyond reasonable doubt. Neither any injury-report nor any X-ray report has been produced to prove any such injury. Allegation against him cannot be taken as proved by even 'two witness principle' propounded by the Supreme Court in Masalti, supra, because no other witness has supported this allegation against accused. The prosecution cannot therefore be taken to have proved guilt of even this accused for the injury of injured Kuldeep Singh, thus entitling him to benefit of doubt.