S. S. BYAS, J. - (1.)THESE two appeals one by accused Ram Pratap and the other by accused Inder Singh are directed against the judgment of the learned Additional Sessions Judge (2), Hanumangarh dated February 26, 1979 convicting and sentencing the appellants as under: - S. No. Name of accused Offence u/s Sentence Awarded 1. Ram Pratap 302/34 Life Imprisonment. (ii) 394/379, I. P. C. Seven years rigorous imprisonment. (iii) 325/34, I. P. C. Two years rigorous imprisonment. 2.Inder Singh (i) 302/34, I. P. C. Imprisonment for life. (ii) 394/397, I. P. C. Seven years rigorous imprisonment. (iii) 325/34, IPC Two years rigorous imprisonment.
(2.)SINCE both these appeals arise out of one and the same judgment, they were heard together and are decided by a common judgment.
Briefly stated, the facts and circumstances leading to the prosecution and conviction of the accused-appellant are that PW 5 Sohan Lal Jat and the appellants are residents of village Khabra in the State of Haryana. The deceased-victim Jetha Ram Nayak was also a resident of the same village. Two or three days before the incident (September 20, 1977) PW 5 Sohan Lal and Jetha Ram left their village to purchase live stock. The appellants also met them and told them that they would join them in village Charwala. Sohanlal and Jetha Ram went to Charwala where the appellants joined them. From their they started together. One Mansukh also joined them. Their next halt was at village, Khachwana and from there they reached village Medi. From Medi the party proceeded to village Chandaliya and stayed at the house of one Pratap. They proceeded further and reached village Dhilki where they saw some sheep and goats but did not purchase them. From there they reached village Gheu and proceeded further. Sohanlal and Jetha Ram wanted to stay at village Gheu but accused Pratap asked them to proceed further to village Kalwas where his parents-in-law reside. The party proceeded further. Mansukh remained behind. When the party consisting of Sohanlal (PW 5), the deceased victim Jetha Ram and the appellants covered a distance nearly of 1-1/2 miles, the appellants suggested to rest there in a field as it was night by then. The suggestion was accepted and all the four persons stayed there in the field to pass the night. At about 10. 00 or 11. 00 P. M. the appellants started inflicting blows to Jetharam with Lathi and Knife. Hearing the noise, PW 5 Sohanlal got awoke. He saw that accused Pratap was having a lathi and the other accused Inder Singh had a knife. Sohanlal, apprehending danger to his life, pretended to be in sleep. Thereafter both the appellants made an assault on Sohanlal and struck blows to him with knife and lathi. Taking him to be dead, the appellants took a search of him and relieved of the currency notes of Rs. 7500/- which he was having in the fold of his Dhoti. Sohanlal sustained multiple injuries on his shoulders, hands and other parts. The appellants thereafter made good their escape. There was profuse bleeding from the wounds of Sohanlal. Jetha Ram did not survive and passed away instantaneously. Next morning when Sohanlal regained some strength, crawled and reached the way passing nearby the field. There he found children. He asked them to bring water for him. The children brought PW 2 Had Kishan there. He gave him water and went to village Gheu to bring the Sarpanch and other persons. The Sarpanch PW 1 Shri Chand and other persons came there where Sohanlal was lying injured. He narrated them the whole incident which had taken place with him and Jetha Ram. They also located the dead body of Jetha Ram lying in the field. Shri Chand (PW 1) drew up report Ex. P. i of the occurrence and sent it to Police Station, Bhadra It was taken there by PW 3 Jailal. Jailal reached the Police Station at about 10. 30 P. M. on September 21, 1977. The police registered a case and proceeded with investigation. The Station House Officer PW 14 Om Prakash arrived on the spot in the same night and inspected the site. He found Sohanlal there. He was immediately taken for treatment to Government Hospital, Bhadra. Since his condition was found precarious, his statement Ex. D. 3 was recorded at about 3. 50 A. M. on September 22, 1977 by Munsif and Judicial Magistrate, Bhadra. The Investigating Officer inspected the site and prepared the inquest report of the victim's dead body. The lathi and the knife were also found lying there. He seized and sealed them. He also seized and sealed the blood-stained soil lying there. The post-mortem examination of the dead body of Jetharam was conducted at about 11. 30 A. M. on September 22, 1977 by PW 13 Dr. Sahi Ram, the then Medical Officer Incharge, Government Hospital, Bhadra. He found the following ante mortem injuries on the victim's dead body: - 1. Lacerated wound 2" x 1/2" x 1/2" over right parietotemporal region of skull, a commentated fracture of right temporal parietal and frontal bone was present. Bone of skull of fraclmid area was smashed into several pieces. Dura matter and brain of right temper-parietal area of skull was also injured. Effused blood was present under the affected area of dura-matter and the brain. 2. Incised wound over right parietal region vertically directed measur- ing 3/4" x 1/6" x 1/6" obliquely. 3. Incised wound 1" x 1/6" x 1/6" obliquely directed over right occipitoparietal area of skull. 4.Right ear is cut from the middle. 5.Haemotoma 2" x 2" over left parietal area of skull. 6.Abrasion 1-1/2" x 1/2" medial side of left elbow joint. In the opinion of Dr. Sahi Ram the cause of death was shock and haemorrhage on account of injury to the brain resulting from multiple fracture of the skull. The injuries of Sohanlal were also examined by the same doctor. The following injuries were found on his person: - 1. Incised wound 1/2" x 1/6" x 1/6" over medial Said of left eye brow. 2. Incised wound 3/4" x 1/6" x 1/6" over medial side of right eye brow. 3. Swelling with bruise of right orbital area. 4. Three incised wounds 1/2" x 1/6" x 1/6" each near right side of mandi bular region. 5. Bruise with swelling 2" x 2" over right mandibular region. 6. Lacerated wound 1 1/2" x 1/4" x 1/6" inner side of upper lip. 7.Incised wound 3/4" x 1/6" x 1/6" over right pareital region. 8.Incised wound 3/4" x 1/6" x 1/6" over left martoid region. 9.Abrasion 1/2" x 1/2" over left occipital area of scalp. 10.Abrasion 1/3" x 1/3" over left ear pinna. 11.Abrasion 1/3" x 1/3" over dorsum of right hand. 12.Multiple irregular abrasions 1/3" x 1/3" over left and right side of neck.

Injuries No. 3 and 5 were classified as grievous whereas the rest as simple. Injuries No. 1,2,4,7, & 8 were stated to have been caused by sharp weapon while the remaining by some blunt object. Accused Ram Pratap was arrested on Sep:ember 24, 1977 while accused Indersingh was arrested on September 25,1977 in their village Khabra. In consequence of the information furnished by accused Ram Pratap whilst under police custody, currency notes of Rs. 6030/-were recovered from his house. It is alleged that both the appellants purchased transistors with the stolen money. Both the transistors were also recovered in consequence of the information furnished by each of them whilst under police custody. The currency notes of Rs. 130/- were also recovered inconsequence of the information furnished by accused Indersingh. On the completion of investigation, the police presented a challan against the appellants in the Court of Munsif and Judicial Magistrate, Bhadra, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under s. 302 read with 34,307/34 and 394/397 IPC against each of them, to which they pleaded not guilty and faced the trial. They refuted the whole occurrence and claimed absolute innocence. It may be mentioned that the appellants did not lay their claim on the recovered currency notes. It may also be noticed that they did not raise any specific plea in defence except merely denying the whole prosecution story. In support of its case the prosecution examined 15 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Sessions Judge held the charges duly brought home to the appellants. They were consequently convicted and sentenced as mentioned at the very outset. Hence these appeals.

Before proceeding further, we may point out that the cause of death of the victim Jetha Ram and the number and nature of injuries sustained by injured victim Sohanlal (PW 5) were not challenged before us by the learned counsel for the appellants. In fact he was not in a position to challenge the finding of Dr. Sahi Ram (PW 13 ). We have also gone through the testimony of Dr. Sahiram and find no reasons to distrust his opinion relating to the cause of death of Jetharam and number and nature of injuries sustained by PW 5 Sohanlal. It, therefore, stands proved that the death of Jetha Ram was not natural but homicidal in nature.

It may be pointed out that the whole prosecution case rests squarely on the testimony of PW 5 Sohanlal who is the surviving victim. In case he is disbelieved, there is no other convincing evidence against the appellants to connect them with the commission of the crime. But in case he is found reliable and his testimony is accepted as true, there is no escape for the appellants. The learned Sessions Judge accepted the testimony of this witness as gospel truth in convicting the appellants.

(3.)WE have heard Shri S. N. Sharma, learned counsel for the appellants and the learned Public Prosecutor. WE have also gone through the case file carefully.
In assailing the conviction of the appellant it was vehemently contended by Shri Sharma that PW 5 Sohanlal is not a witness of absolute truth and the Court below crept into an error in accepting his testimony in basing the conviction. It was also argued that there was no motive for the appellants to commit the murder of Jetharam. A suggestion was made that Sohanlal (PW 5) and Jetharam picked up quarrel between themselves. It was in that process that Sohanlal (PW 5) might have caused the death of Jetharam. It was also argued that First Information Report is not an innocent piece of document. It was brought into existence after when the persons from Khabra were called at the spot. Mr. Sharma also argued that the FIR was received late in the Court and that casts suspicion that all what is said about it is not truth. In reply, the learned Public Prosecutor supported the findings of the Court below and submitted that PW 5 Sohanlal is a resident of village of the appellants. Not only so, he is their caste-brother. No previous enmity has been brought on record by the appellants so as to prompt PW 5 Sohanlal to depose falsely against them. It was submitted that no reasons: appear to discredit the testimony of PW 5 Sohanlal. We have taken the respective submission into consideration.

It would be proper to briefly read the testimony of PW 5 Sohanlal as he is the sole witness of the occurrence in the case. He deposed that two or three days before the occurrence he and Jetharam left the village Khabra to purchase live stock. The appellants met them and told them that they would join them at village Charwala. Describing the journey the witness stated that when they reached village Gheu, it was evening by then. They wanted to stay there but accused Pratap induced them to proceed further and stay at village Kalbas where his parents-in law reside. Suspecting nothing and taking the offer innocent, he, Jetharam and the appellants proceeded further. When they covered a distance of nearly 1-1/2 mile, the appellants told them to stay there in the field and pass the night there. The suggestion again appearing as innocent was accepted by Sohanlal and Jetharam. The party stayed there in the field. All the four persons lay down there to sleep. At about 10. 00 or 11. 00 P. M. the appellants started striking blows to Jetharam with Lathi and knife. Accused Rampratap had a lathi while accused Indersingh had a knife. He (witness) apprehending danger to his life, pretended to be fast as sleep. The accused after finishing Jetharam, made an assault on him and struck blows to him with lathi and knife. There was profuse bleeding from his wound. Takings him to be dead, they relieved him of the currency notes of Rs. 7500/- which he was having in the fold of his Dhoti. After taking the currency notes the accused made good their escape. This witness further stated that due to the bleeding from the wounds he became very weak and could not proceed further. He remained lying there in the field. In the next morning when he regained some strength he crawled and came upto the way. He found some children there and asked them to give him water. The children brought PW2 Harikishan to him. Hari Kishan (PW 2) came to Sohanlal and found Jetharam lying dead. He went to the village and brought the Sarpanch. The witness continued to state that when the Sar-panch and other persons came there, he narrated the whole incident to them as to how Jetharam was put to death and he was belaboured. He also told them that the appellants had relieved him of his currency notes of Rs. 7500/ -. The police arrived in the night and took him to Government Hospital, Bhadra where his statement Ex. D. 3 was recorded by the Munsif and Judicial Magistrate. The witness was cross-examined at length but nothing could be elicited from him which may make his testimony unworthy of belief or credence. While appreciating and evaluating his testimony we cannot forget two essential facts viz. , (1) he is of the same village where the appellants reside and (ii) he is their caste brother. No previous enmity has been brought on record by the appellants in his cross-examination to show that he was an inimical terms with them In these circumstances the testimony of PW 5 Sohanlal cannot be disbelieved simply because he is the injured victim and survived in the incident. The learned Sessions Judge accepted the testimony of this witness as an absolute truth and we find no good and cogent reasons to take a view different from that taken by him.