Barin Ghosh, C.J. -
(1.) IN the instant case, the First Information Report was lodged by Mohd. Rafiq (PW 1) at about 6.30 P.M. of 2nd August, 1999. In the First Information Report, it was alleged that about fifteen minutes before the incident, he was threatened by the appellants, where after he came back home and, later on, appellants came to the home of PW 1, dragged his father, the victim, from the Veranda and started beating him up with intention to kill him. It was also alleged that the mother of PW 1, namely, Smt. Shabana (PW 2) and his sister Ms. Shaukeen Jahan (PW 3) alongwith him went to save the victim, when they were also beaten up. It was alleged that only when Mohd. Nasir (PW 4) came hearing the cry of the victim, PW 1, PW 2 and PW 3; appellants fled the place of occurrence. It was alleged that the victim was taken to the local hospital across their house, where also PW 1, PW 2 and PW 3 were treated. It was alleged that the victim was referred to the referral hospital, where the victim was taken. Initially, the F.I.R. was lodged in respect of offences punishable under Sections 147, 323 and 308 of the Indian Penal Code. Later, the referral hospital could not give appropriate relief to the victim, instead asked the patient party to take the victim to a hospital at Moradabad. The victim was, accordingly, taken to Moradabad hospital, where he was declared brought dead. In view of the death of the victim, an offence punishable under Section 304 of the Indian Penal Code was also added to the crime case registered pursuant to the F.I.R. The dead body of the victim was sent for post -mortem. The postmortem report revealed that the death is due to the injury that the victim received on his head. After completion of the investigation, a charge -sheet was filed alleging therein that the appellants are and each of them is guilty of offences punishable under Sections 147, 323, 304 and 308 of the Indian Penal Code. Each of the appellants has been convicted under each of the aforementioned sections and have also been appropriately awarded sentences. Being aggrieved thereby, the present appeal has been preferred. The prosecution as well as the court below placed reliance upon ocular evidence tendered by PW 1, PW 2 and PW 3 as regards the incident in question. Each of the said prosecution witnesses also received injuries in course of the incident. The court below was conscious of the fact that an injured witness not unnecessarily would speak the truth. The court below satisfied itself with the evidence of PW 4. Before us, it has been contended that two very important facts have been ignored by the court below, namely, that PW 1 had taken the victim to the referral hospital and, according to him, after medical check up of the victim by the referral hospital, he lodged the First Information Report, whereas, according to the records of the referral hospital and the doctor who checked up the victim, he was checked at the referral hospital only at 8.25 P.M., whereas the First Information Report was lodged at 6.30 P.M., and that, PW 4 was a resident of a different village situate about 20 kms. away, but deposed nothing as to what he was doing in or around the residence of the victim at the relevant time, though he had stated that he came to the village in question for the purpose of cutting woods.
(2.) THE submissions as above, though creates a doubt in the mind, but a closer scrutiny of the evidence will not pin -point complete medical check up of the victim by the referral hospital before the F.I.R. was lodged. In other words, while in cross -examination, PW 1 said that he lodged the First Information Report after referral hospital checked up the victim medically, no other question was put in the cross -examination of PW 1 to ascertain whether such medical check up was what was reflected in the records of the referral hospital. In the absence of giving an opportunity to PW 1 to explain the situation, it must be deemed that when the victim was taken to referral hospital and a preliminary check up of the victim was done, then only, in order to discharge his obligation of lodging the F.I.R., PW 1 returned and lodged the F.I.R. and subsequently the final check up of the victim was made when the victim was advised to be transferred to yet another hospital. Similarly PW 4, though, had his residence at a far away village, but he held out that he came to the village, where the incident had taken place, for cutting woods. PW 4 was not asked in cross -examination, where exactly in the village he was having the woods cut. Therefore, these two aspects will not demolish the evidence tendered by the prosecution through PW 1 to PW 4. Further, nothing was brought on record to suggest that PW 1, PW 2 and PW 3 could impress upon PW 4 to say something, which, to his knowledge, is not correct and, at the same time, no attempt was made to show that PW 1, PW 2 and PW 3 had any occasion to put forward an unfounded accusation against the appellants for any just reason. That being the situation, we are of the view that finding of the court below that the case, as made out by the prosecution through PW 1, PW 2, PW 3 and PW 4, is acceptable and, on the basis thereof, a conviction can be awarded against the appellants. The question is, to what extent, on the basis of such evidence, the conviction could be awarded? The fact remains that PW 1 and PW 3 only received contusions, whereas PW 2 received a lacerated wound. In the elaborate evidence given by PW 1, PW 2 and PW 3, they have not indicated the nature of the attack that was inflicted upon them.
(3.) IN the circumstances, we are of the view that the prosecution failed to prove the charge for an offence punishable under Section 308 of the Indian Penal Code, inasmuch as, attempt to murder, according to the evidence, was made on the victim and not on PW 1, PW 2 and PW 3. Then again, each of the appellants has been convicted under Section 304 of I.P.C., whereas in the evidence, it has come on record that the head injury, which caused the death of the victim, was inflicted by an iron road by appellant Yonus. The charge of offence punishable under Section 149 or under Section 34 of I.P.C. was not framed against the appellants. Accordingly, evidence on record did not permit the court below to hold that the charge for an offence punishable under Section 304 of I.P.C. stands established against the other appellants, except appellant Yonus. However, the fact that the appellants were that number and had assembled for that purpose having been established charge for an offence punishable under Section 147 of I.P.C. stands proved against each of the appellants. Similarly, the incident having had taken place inside the house of the victim, charge for an offence punishable under Section 323 of I.P.C. also stands established against each of the appellants.;