MATHUR, J. - (1.) THE appellant Mange Ram along with his wife Smt. Sushila, father Mahavir, brother Mani Ram and Jot Ram son of Likhmi Das were tried for the murder of one Somvir and causing injuries to P. W. 1 Satvir and P. W. 2 Mst. Bharpai. THE learned Sessions Judge, Jhunjhunu vide judgment dated 5. 9. 2000 convicted the appellant Mange Ram for offence under Section 302 I. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo six months rigorous imprisonment. He has also been convicted for offence under Section 447 IPC and sentenced to one month's simple imprisonment. THE other accused persons have been acquitted of offence under Sec. 302/149, 147 & 148 I. P. C.
(2.) BRIEFLY stated the prosecution case is that on 7. 8. 98 P. W. 13 Mool Chand A. S. I. lodged a FIR at Police Station, Surajgarh at about 7. 00 p. m. on the basis of a statement of injured P. W. 1 Satvir recorded in the Government Hospital at Chidawa. Satvir in his statement Ex. P1 stated that on 7. 8. 98 at about 11. 00 a. m. his brother deceased Somvir was spraying on cotton crop and he was putting water in the bucket. At that time his mother P. W. 2 Bharpai was on the well. Accused Smt. Sushila wife of appellant Mange Ram started cutting the grass on the border of the field. Deceased Somvir asked her not to do so. He asked her not to remove the fodder. At that time the accused, who are the neighbours namely Mahavir, Mange Ram, Bhani Ram Jot Ram, Likhma Ram, Kesar, Sushila, Prakash and Kailash arrived armed with lathies. They abused them. Noticing the commotion his mother Bharpai and father rushed to the spot. The accused persons thrashed Somvir by lathies. When his mother intervened, she was also assaulted. She also sustained injuries. He also stated that Somvir succumbed to the injuries on the spot. On this information. Police registered a case for offence u/secs. 147, 148, 149, 447,323 and 302 I. P. C. and proceeded with investigation. Police prepared the inquest report and sent the dead body for post-mortem. After usual investigation, Police laid charge-sheet against the appellant and others for the aforesaid offences. All the accused persons denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 18 witnesses and produced certain documents. The accused persons in their statements under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. Analysing the evidence the learned Judge found the appellant guilty of murder of Somvir and accordingly convicted and sentenced him as noticed above. The learned Judge acquitted the other accused persons. Dr. Y. C. Sharma learned counsel appearing for the appellant contended that a close scrutiny of the evidence on record will show that the prosecution has suppressed the genesis of the incident in the manner in which the occurrence took place. It is submitted that if case of the prosecution is taken to its face value, the occurrence could not have taken place in the manner as alleged. It is also contended that it is a case of single injury and from the facts, it does not appear that the appellant intended to commit murder of Somvir. On the other hand the learned Public Prosecutor and the counsel for the complainant have supported the judgment of the trial Court. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we deal with the contentions, it would be convenient to indicate the evidence produced by the prosecution. P. W. 12 Dr. Dalip Punia stated that he conducted the post- mortem of the dead body of Somvir and noticed the following injuries:- EXTERNAL INJURIES: (1) Lacerated wound size 7 cm x 1 cm x bone deep (Lt) parietal region oblique antr-postr. (2) A bruise size 20 cm x 2 cm (Lt.) thigh Latr. side infr- supr. (3) A bruise size 20 cm x 2 cm (Lt) thigh Latr. 1 cm postr. to injury No. (2) and parallel INTERNAL INJURIES: Fracture of (Lt) parietal bone (Linear fracture) 10 cm in length below the Injury No. (1) c extradural haemotoma size 10 cm x 10 cm over (Lt) side parietotemporal region. He has proved the post-mortem report Ex. P18. In his opinion the cause of death was coma as a result of head injury. He also stated that all the injuries were ante mortem in nature. He also stated that the head injury was sufficient in ordinary course of nature to cause death.
(3.) ON the same day, he examined P. W. 1 Satvir and noticed the following injuries: (1) Lacerated wound 6 cm x 1 cm x bone deep (Rt.) frontal region (2) An abrasion 2 cm x 1. 5 cm (Lt.) antr. Supr iliac spine (3) A bruise 14 cm x 3 cm (Lt.) renal area postr infr-supr. (4) A bruise 10 cm x 3 cm (Rt) shoulder He has proved the injury report Ex. P. 19. All the injuries were simple in nature caused by blunt object. He also examined P. W. 2 Smt. Bharpai. He noticed a lacerated wound 2 cm x 0. 5 cm x 0. 5 cm at the tip of index finger (Rt.) hand. It was found to be simple caused by blunt object. He has proved the injury report Ex. P. 20. P. W. 1 Satvir while reiterating the narration of the incident as given in the First Information Report stated that Mange Ram gave a lathi blow on the head of Somvir on account of which he fell down. Four to five persons thrashed him by lathies. When he intervened, he was also assaulted by lathies. When his mother intervened a stick was also struck to her. The information of the incident was given to police by the doctor. The police recorded his statement Ex. P. 1, the police visited the site on the next day morning. In the cross-examination, he stated that the first blow of lathi was given by Mange Ram. He admitted that Mahavir also gave 4 to 5 lathi blows. He also stated that in the First Information Report, he had disclosed that the first blow was given by Mange Ram on the head of Somvir, but he cannot help if the same has not been recorded by the police. He also admitted that they reached at the hospital at about 1. 30 or 2. 00 p. m. he further admitted that they did not go to the hospital through Police Station. He denied the suggestion that he reached on the spot after the incident was over. Nothing substantial has been elicited to discredit the testimony of this witness. P. W. 2 Bharpai has made her statement almost in the line of P. W. 1 Satvir. She also stated that the accused persons as per the plan created mischief by sending Smt. Sushila for cutting the grass. Deceased Somvir asked accused Sushila not to remove the fodder. On this issue the accused persons took up the quarrel with them. All the accused persons namely Jot Ram, Bhani Ram, Mange Ram, Mahavir arrived armed with lathies and thrashed Somvir resulting into his death. Nothing has been elicited to discredit the testimony of this witness. The statement of P. W. 3 Har Das the father of the deceased is almost in the line of P. W. 1 Satvir and P. W. 2 Bharpai. P. W. 10 Sunita is the niece of P. W. 1 Satvir. She has stated that the accused Sushila created a mischief by cutting the grass with a view to take up the quarrel. At that time she was preparing the food. Her uncle Somvir asked Sushila not to remove the fodder. Her uncle Somvir was spraying the cotton crop. Her another uncle was putting water in the bucket. At that time all the accused persons namely Mange Ram, Bhani Ram, Jot Ram, Mahavir, Sushila etc. arrived with lathies. Mange Ram gave a lathi blow on the head of her uncle Somvir. Thereafter all other accused also thrashed him. In the cross-examination, she stated that police had recorded her statement on the same day. Nothing has been elicited to discredit the testimony of this witness. It is contended by the learned counsel that the Investigating Officer has deliberately failed to record the First Information Report on receipt of the information and has prepared the FIR after reaching to the hospital after due deliberation, consultation and discussion with the complainant party. It is submitted that the statement Ex. P. 1. could not be treated as a FIR as it was a statement made during the investigation of the case and as such hit by Section 162 of the Code of Criminal Procedure. This leads to the inference that investigation is tainted and it would be unsafe to rely upon such tainted investigation. The learned counsel has placed reliance on a decision of the Apex Court in State of Andhra Pradesh vs. Punati Ramulu & Ors. (1 ). ;