GOYAL, J. - (1.) THIS appeal has been filed against the judgment dated June 30, 1995, passed by learned Sessions Judge, Alwar, in Sessions Case No. 7/1995 whereby both the accused appellants were held guilty under Section 302/34 IPC and were sentenced to imprisonment for life.
(2.) THE relevant facts giving rise to this appeal are in brief that P. W. 4 Prabhu Dayal, brother of the deceased Kailash submitted a written report Ex. P. 8, at Police Station Malakhera, district Alwar, on 2. 10. 1994, at 2. 15 p. m. with the averments that at about 10 a. m. his brother Kailash was going to house of Ramji Lal from his Well. On the way in the village Bader Ka Bas, accused appellants Harphool and his son Ramjeewan armed respectively with Kulhari and Tanchia, assaulted Kailash. Kailash ran away for his life and rushed to the roof of the house of Sohan Lal. Both the assailants followed him there. Accused Ramjeewan inflicted injuries with Tanchia on ear, nose, eyes, while accused Harphool caused injury on head by Kulhari. This occurrence was witnessed by Mangal Ram (PW. 7), Babu Lal (PW. 6), Laxman (PW. 5) and Faiju Khan. Both the accused ran away and Kailash died instantaneously. On the basis of this written report (Ex. P. 8), formal F. I. R. (Ex. P. 22) was registered under Section 302/34 IPC. Site was inspected and Site-Plan (Ex. P. 9) was prepared. Dead body of Shri Kailash was subjected to the post mortem examination and Post- Mortem Report is (Ex. P. 1 ). Statements of witnesses were recorded under Section 161 Cr. P. C. The accused appellants were arrested and at their instance `tanchia' and `kulhari' were respectively recovered. On conclusion of investigation, challan was submitted in the Court of learned A. C. J. M. No. 2, Alwar, who committed this case to the Court of learned Sessions Judge, Alwar. Both the accused appellants were charged under Section 302/34 IPC. The accused appellants pleaded not guilty and claimed trial. To prove the charge, the prosecution examined as many as 14 witnesses namely PW. 1, Dr. Rajendra Juneja, PW. 2, Jagpal Singh, PW. 3, Mohan Lal, PW. 4, Prabhu Dayal, PW. 5, Laxman, PW. 6 Babu Lal, PW. 7 Mangal Ram, PW. 8, Kishan Lal PW. 9, Hazari Lal, PW. 10 Sajjan Singh, PW. 11 Ram Niwas, PW. 12 Ramesh, PW. 13 Fauzi Ram and PW. 14, Gulab Chand. The accused appellants were examined as per the Provisions of Sec. 313 Cr. P. C. They denied the entire prosecution evidence. Accused appellant Harphool stated that he was not in the village rather he was in his agricultural field which is one k. m. away from the village. Both the accused appellants further stated that they have been falsely implicated on account of enmity. No witness was examined on behalf of the accused appellants. Having heard final submissions, learned Sessions Judge convicted and sentenced both the accused appellants vide judgment dated June 30, 1995, as stated above. We have heard learned Senior Counsel Shri S. R. Bajwa and learned Public Prosecutor Shri Rajendra Yadav and have perused the entire evidence. Ex. P. 1 dated 2. 10. 1994, is the Post Mortem Report of the deceased Shri Kailash, which has been proved by PW. 1 Dr. Rajendra Juneja, who was posted as Medical Officer in Primary Health Centre, Malakhera. He stated that the Post-Mortem on the dead body of Kailash was conducted by him on 2. 10. 1994 and he prepared the Post-Mortem Report Ex. P. 1 and noted following external and internal injuries :- External injuries 1. Incised wound (6cm x 1cm) Horizontal placed over Rt. eye brow. Incised wound (2. 5cm x 1 cm) just below the bridge of nose with fractured nasal bone. Lacerated wound (2. 5cm x 1 cm) above the Rt. Nostril. Bruise (5cm x 1. 5 cm) Horizontal from 2 cm, lateral (contused to diverted backward ). Lacerated wound (2. 5cm x 1 cm) over the occiput. 6. Bruise (8cm x 2cm) 6 cm lat. to T10 vertebra Rt. side. 7. Bruise (5cm x 2cm) over back of rt. shoulder. 8. Bruise (2. 5 x 2. 5 cm) Exterior surface of Rt. elbow joint. 9. Bruise (2cm. x 1cm) Exterior surface of lt. elbow joint. 10. Incised wound (4cm x 1cm) 10 cm above the Rt. Mastoid. Process over scalp. 11. Incised wound (6cm x 1cm) 8 cm above the Lt. Mastoid process. Internal Injuries (1) Occipital Bone is divided into multiple pieces with all the membrane destroy. Brain exposed from injured side. (2) Fracture of Lt. side temporal and parietal bone. (3) Fracture of Rt. Temporal bone. (4) Fracture of nasal bone from bridge of nose. In the opinion of Dr. Juneja, death occurred due to severe injury to brain caused shock and death. Bleeding from other injured site may cause early death. Duration of death was within 6 hours. All injuries were ante-mortem in nature.
(3.) NEXT question for consideration arises is as to who is the author of these injuries? Out of 14 witnesses examined, five witnesses namely PW. 4 Prabhu Dayal informant, PW. 5 Laxman, PW. 6 Babu Lal, PW. 7 Mangal Ram and PW. 12 Ramesh have been examined as eye-witnesses. PW. 12 Ramesh (not named in FIR Ex. P. 8) and PW. 7 Mangal Ram (named in F. I. R.) were declared hostile. PW. 12 Ramesh stated that he did not witness any such occurrence, though his own house is situated near the house of Sohan Lal, where this occurrence took place. PW. 7 Mangal Ram stated that at about 10 a. m. , he was sitting in his shop and having heard hue and cry, he rushed to the house of Sohan Lal, where he saw the crowd. He went upon the roof and saw Kailash lying dead, but he did not witness any occurrence. He admitted this fact that his shop is near the house of Sohan Lal. PW. 4 Prabhu Dayal (brother of the deceased) is the informant. He stated that at about 10 a. m. his brother Kailash was coming from well. On the way in the village, both the accused appellants Harphool and Ramjeewan surrounded him. Harphool and Ramjeewan were respectively armed with kulhari and tanchia. Kailash to save himself, rushed to the roof of the house of Sohan Lal. Both the accused appellants followed him and killed him by causing injuries by tanchia and kulhari upon nose, ears, eyes and head. When he and other witnesses reached near the place of occurrence, both the accused ran away. They brought the dead body of Kailash to Malakhera Hospital and then submitted report Ex. P. 8. In cross-examination, he stated that the accused are neighbour. He also admitted that Laxman (PW. 5) is uncle and Babu Lal (PW. 6) is his cousin brother. PW. 5 Laxman and PW. 6 Babu Lal stated that they had also witnessed this occurrence. They stated that both the accused appellants inflicted injuries upon Kailash. Harphool inflicted injuries by Kulhari, while Ramjeewan caused injuries with tanchia. Kailash got injuries upon the head, nose eye and ear. These witnesses have also been cross-examined in detail. Learned Sessions Judge, while appreciating the evidence of the prosecution came to this conclusion that PW. 5 Laxman's presence on the spot seems to be doubtful. But relying upon the statements of PW. 4 Prabhu Dayal and PW. 6 Babu Lal, he came to the conclusion that both the accused appellants committed the murder of Kailash in furtherance of common intention. Learned Senior Counsel Shri Bajwa raised a number of arguments. He argued that there are so many infirmities and unexplained circumstances in the prosecution evidence, therefore, the presence of PW. 4 Prabhu Dayal and PW. 6 Babu Lal also at the time of occurrence has become extremely doubtful and the presence of PW. 4 Prabhu Dayal has not even been shown in F. I. R. itself. According to learned Senior Counsel Shri Bajwa, PW. 4 Prabhu Dayal admitted in cross-examination that the dead body of Kailash was first taken to his `gait' and then to the hospital but no explanation has been given as to why the dead body was shifted from the place of occurrence. It is also argued that according to Prabhu Dayal, the dead body was put upon a `gadda' & that `gadda' and shoes of the deceased were not recovered. It was also argued that blood was found at two places according to the site plan Ex. P. 9, but no explanation has come forward as to why the blood was found at two places. It was next argued that no blood was found on the clothes of the witnesses who lifted the dead body, no F. S. L. report has been produced, therefore, the evidence of recovery of weapons has got no meaning. Mr. Bajwa further argued that no motive has been disclosed for committing such a grave offence like murder and, therefore, the prosecution has suppressed the original geneses of this case and there are contradictions in the statements of PW. 4 Prabhu Dayal, PW. 5 Laxman and PW. 6 Babu Lal and thus their statements are not reliable. On the other hand, learned Public Prosecutor argued that infirmities and unexplained circumstances as pointed out by learned counsel Shri Bajwa are of no significance so as to effect the testimony of PW. 4 Prabhu Dayal and PW. 6 Babu Lal and it is the accused who have admitted that they were implicated on account of enmity. It was also argued that in case of direct evidence, absence of motive is not fatal to the prosecution case and thus both the accused appellants have been rightly convicted by the trial Court. ;