R. K. BATTA, J. - (1.) BOTH these appeals arise out of the same judgment dated 24.10.1994 by which the appellants have been convicted for the murder of Satyawan under section 302 read with section 34 of I. P. C. In addition two of the appellants have also been sentenced under section 323 read with section 34 of I. P. C. for assault on P. W. 1 Ganga. The appellants have challenged their conviction in these appeals.
(2.) THE prosecution case, in brief, is that on 21.5.1990 deceased Satyawan and his family members were invited at the house of Digambar Wani for meals. While deceased Satyawan was coming towards the house of Digamber Wani, his legs and clothes were entangled in barbed wire near the cattle shed of the accused. At this stage some altercation took place between the deceased and Nandu Bahadur, servant of the accused. It appears that the deceased Satyawan, returned back to his house and was once again coming from his house towards the house of Digambar Wani, when the accused Charandas and Vilas assaulted him with iron rod (Sabhai) on his head, as a result of which deceased Satyawan fell near the otta. At this stage his sister Ganga P. W. 1, came to the spot and covered Satyawan by lying over him to save him from any further attack by the accused. It is the prosecution's case that the accused Kamlakar and Ramesh assaulted Ganga P. W. 1 with stick and rafter. Thus, according to the prosecution, the accused had come well prepared with iron sabbals and stick as well as rafter to assault the deceased Satyawan. After Ganga was assaulted, she went and reported the matter to Police Patil P. W. 14, who went along with Ganga to the police station and lodged the First information Report. THE incident in question took place at 9.30 p. m. and the F. I. R. was lodged with the police at 10.30 p. m. in which the names of all the four accused were mentioned as assailants. According to the prosecution case recoveries of the weapon of offence were made under section 27 of the Evidence Act at the instance of the accused. THE clothes of the accused were attached as also that of the deceased. THE Postmortem was conducted by Doctor P. W. 18 who found one external injury on the head of Satyawan as well as the corresponding internal injury to brain due to which Satyawan had died instantaneously. Ganga P. W. 1 was also examined by Doctor P. W. 19 who found one injury on the backside of the shoulder of Ganga. The prosecution had examined 20 witnesses including eye witnesses of the incident. The incident was reported to have been seen by the brothers of the deceased Satyawan who are p. w. 8 Prakash, p. w. 7 Premdas, p. w. 5 Manohar who is friend of deceased Satyawan; but these eye witnesses did not support the prosecution case. These witnesses were declared hostile, but nothing could be elicited by the A. P. P. conducting the prosecution during their cross examination. P. W. 1 Ganga who is the sister of deceased also did not support the prosecution case and on the contrary stated that deceased Satyawan had fallen and that deceased who brought a sabbal/crow-bar when he came towards the house of accused Charandas. She denied that she was assaulted by Kamlakar and Ramesh and according to her she had received injuries on her wrist due to fall over the deceased. The prosecution case thus mostly rests upon the evidence of child witness Jyoti P. W. 9 who was 10 years old, on the date of incident. The prosecution sought support from testimony of other evidence on record. The trial court accepting the testimony of Jyoti P. W. 9 and corroboration from other evidence on record, found appellants guilty of the charges. We have heard the learned advocate for the appellants and learned A. P. P. at length, who took us through the evidence on record. Learned advocate for the appellants pointed out that on the evidence of Jyoti P. W. 9, no implicit reliance can be placed and once the evidence of Jyoti is discarded then nothing is left in the prosecution case. They have pointed out various discrepancies, improbabilities in the evidence of Jyoti - P. W. 9 and we shall deal with this aspect while scrutinizing the testimony of Jyoti P. W. 9.It was also pointed out by the learned advocate for the appellants that though Jyoti P. W. 9 states that accused Charandas and Vilas had given Sabbal blows on the head of the deceased Satyawan, yet only one external injury was found by the Doctor conducting postmortem on the person of the deceased Satyawan and as such the testimony of Jyoti P. W. 9 that accused Charandas and accused Vilas had assaulted deceased Satyawan on his head with sabbal is false and the same can not be relied upon. Alternatively, it was argued by the learned advocates for the appellants that there is no sufficient evidence to bring home the guilt of accused Kamlakar and Ramesh and taking into consideration that only one blow was given, the offence in question would fall within the ambit of section 304 of I. P. C. It was also urged that the assault on Ganga P. W. 1 has not been established and that Ganga herself does not say that she was assaulted by accused Kamlakar, and Ramesh.
(3.) LEARNED A. P. P. , on the other hand argued that the F. I. R. was promptly lodged within one hour of the incident, wherein in the names of the assailants were given. According to him, minor discrepancies and variations are bound to be there in all prosecution cases and in fact such minor variations and discrepancies are hallmark of the truth of the prosecution case. According to him, the external injury in question, was possible as a result of two blows as alleged by Jyoti P. W. 9 and in this connection the learned A. P. P. placed reliance on the judgment of apex court in State of Haryana v. Bhagirathsingh & others, reported in 1999 (5) SCC 96. He further pointed out that the ocular evidence of Jyoti P. W. 9 that more than one blow was given has to be given credence and the medical opinion after all is an opinion which is not binding on the court. He also pointed out that if the statement of Jyoti P. W. 9 is scrutinized, the prosecution case as against accused Charandas and Vilas is established beyond any reasonable doubt. It was next urged by him that the participation of the other two accused namely Kamlakar and Ramesh, as also common intention entertained by them, is duly established by the prosecution, since there is evidence on record that all the accused had come prepared armed with weapons to assault the deceased Satyawan. The learned A. P. P. , therefore, submitted that the conviction of the appellants is well founded and does not call for interference. In support of his submission, he has also placed reliance on judgment of the apex court reported in Mohansingh and another versus State of M. P. [1999 (2) Supreme Court Cases Page no. 4281]. In the light of the averments made on either side, we have closely scrutinized the evidence on record. As already pointed out above, except for Jyoti P. W. 9 other eye witnesses have not supported the prosecution case. These eye witnesses are : (1) P. W. 7 Ramdas: (2) P. W. 8 Prakash; who are brothers of deceased Satyawan; (3) P. W. 5 Manohar who is stated to be close friend of the deceased Satyawan; (4) P. W. 6 Siddhartha another eye witness as also (5) P. W. 1 Ganga, who is sister of the deceased Satyawan. It is rather surprising that the brothers and sister of the deceased Satyawan have not supported the prosecution case.;