SHARMA, J. - (1.) WHETHER relationship is such a factor which affects credibility of a witness ? This question requires consideration in view of the significant facts that the prosecution rested the instant case only that the prosecution rested the instant case only on the testimony of close relatives of the deceased Jadvir Singh. The learned Additional Sessions Judge No. 2, Bharatpur convicted and sentenced the four appellants on the charge of murder of Jadvir Singh after placing reliance on the testimony of his wife, mother, son and salhej (sister in law) as under :- Lotan : u/sec. 302 IPc To suffer Imprisonment for life and fine of Rs. 1,000/-, in default to further suffer One Month Simple Imprisonment. Satish Kumar, Kishan Singh & Shivdei : (Each)u/sec. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 1,000/-, in default to further suffer One Month Simple Imprisonment. u/sec. 147 IPc To suffer Six Months Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer Fifteen Days Simple Imprisonment. u/sec. 148 IPc To suffer Six Months Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer Fifteen Days Simple Imprisonment.
(2.) AS per prosecution story, Rohtash, the wife of deceased Jadveer Singh on the fateful day of November 5, 1995 had gone to the house of her Bhabhi (sister-in-law) Seema situated at Kacchi Basti, Ranjet Nagar in the afternoon. Rohtash was accompanied by her mother-in-law Sunahra and son Varun. Around 5. 30 PM they left the house of Seema and proceeded back. Seema came to see them off upto the road. Before they decided to hire ricksha, they saw Jadvir Singh coming on Motor cycle towards Kacchi Basti. The appellants and other persons who were sitting in Khokha (small wooden place) of Kalyan at the turn of Kacchi Basti, surrounded Jadvir Singh made assault on him with pharsis, lathis and knife and took him to the house of Kishan. After leaving injured Jadvir Singh in the house of Kishan, the appellants fled away. Jadvir Singh was taken to the hospital where he was declared dead; Seema submitted written report to the police at General Hospital Bharatpur and investigation was undertaken. On completion of investigation, charge sheet was placed against the appellant. The investigation was however kept pending against the four accused under Sec. 173 (8) Cr. P. C. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Bharatpur. The charges under Sec. 147, 148, 302 alternatively 302 read with 149 IPC were framed against the appellants. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses and got exhibited 27 documents. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence and stated that on account of enmity they were falsely implicated. However no defence evidence was adduced. Learned Trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. It was contended on behalf of the appellants that during the trial the prosecution has given complete goby to the version set out in the FIR. The circumstantial evidence, instead of rendering help to the ocular testimony goes counter to it. Most of the prosecution witnesses namely Jagdish (PW. 4), Satya Prakash (PW. 5), Ram Charan (PW. 6), Mohan Das (PW. 7), Gajraj (PW. 11) and Lala Ram (PW. 14) did not the prosecution line and were declared hostile by the prosecution. Seema (PW. 1), who claims herself to be the eye witness of the impugned assault, has freely indulged in making false assertions and she is not a reliable witness. The statement of Rohtash (PW. 2) suffers from various improbabilities and she is a made up witness. Sunahara Devi (PW. 3) could not have witnesses the impugned assault and her testimony suffers from glaring incongruences. The presence of another so called eye witness Varun (PW. 8) on the spot is highly doubtful. All the eye witnesses are highly doubtful. All the eye witnesses are closely related to the deceased and no one from the thickly populated locality has been examined by the prosecution. The prosecution has miserably failed to spell out the exact proximate cause which might have triggled of the impugned assault. During the trial the actual scene of assault has been shifted and medical testimony goes counter to the ocular testimony. The statements of alleged eye witnesses were recorded belatedly and no explanation for delay has come forward. The prosecution has failed to spell out any motive for the impugned assault. Per contra, learned Public Prosecutor on behalf of the State supported the impugned judgment and contended that the appellants were rightly convicted by the learned Trial Judge. Although Seema, Rohtash, Sunahara Devi and Varun are closely related to the deceased, but in the facts and circumstances of the case their presence at the spot was most natural. Rohtash, the wife of the deceased, along with her mother-in-law Sunahra Devi and son Varun came at Kacchi Basti, Ranjit Nagar to meet her Bhabhi (sister-in-law) Seema. Around 5. 30 PM the deceased Jadvir Singh came to Kacchi Basti Ranjit Nagar on motor cycle to bring his wife, son and mother and when he took turn towards Kacchi Basti he was surrounded by the appellants and other assailants and was taken to the house of Kishan where assault was made on his person with pharsis, lathis and knife by the appellants. Jadvir Singh was found in injured condition in the house of Kishan and succumbed to injuries. The incident had been witnessed by Seema, Rohtash, Sunahara and Varun who were present at the place of incident. We shall now delve deep into the facts and circumstances of the case to find out the tenability of the submissions advanced before us. Turning to the testimony of Seema (PW. 1) it may be noticed that Rohtash, wife of the deceased, is her Nanad (sister- in-law) and on the date of incident Rohtash along with her mother-in-law Sunahra and son Varun visited the house of Seema in the afternoon. In her deposition Seema stated that the appellant Shivdei who used to reside near her house at Ranjit Nagar, got her plot sold to a person of village Gangarsoli through deceased Jadvir Singh. The appellant Lotan forcibly wanted to raise construction over the said plot but Jadvir Singh did not allow his therefore the relations of Lotan and Jadvir Singh became strained. She further deposed that around 5. 30 PM on November 5, 1995 she went upto the road to see off Rohtash, Sunahra and Varun and before they decided to hire Rickshaw, she saw Jadvir Singh coming towards Kacchi Basti on motor cycle. At the turn of Kacchi Basti Charan Singh, Lotan, Satish, Kishan Singh and Shivdei were sitting in the Khokha (small shop) of Kalayan. They surrounded Jadvir Singh, who threw his motor cycle and entered in a plot of Dalchand. He was followed by Charan Singh, Lotan, Satish, Kishan Singh and Shivdei who made assault on him with lathis and Pharsis, Lotan was armed with a knife. When she, Rohtash, Sunahara Devi and Varun raised shouts, the assailants dragged Jadvir Singh to the house of Kishan Singh. She followed them and saw lotan inflicting knife-blow on the left side of the chest of Jadvir Singh in the house of Kishan Singh. After causing injuries all the accused fled away. The police was informed telephonically and at the Hospital she submitted witness report of the incident.
(3.) ROHTASH (PW. 2), the wife of the deceased deposed that she along with her mother-in-law Sunahra Devi and son Varun came to meet her Bhabhi Seema Devi. She waited her husband Jadvir Singh upto 5/5. 30 PM, but when he did not come they proceeded on foot and Seema also came with them upto the road for seeing them off where she saw her husband coming on motor cycle, Lotan, Kishan, Satish, Charan Singh and Shivdei were hidden behind the Khokha of Kalyan. As soon as Jadvir Singh turned towards Kacchi Basti they made assault on him. Jadvir Singh left his motor cycle and rushed towards Kacchi Basti and entered in the bada of Dalu Ram. The assailants then followed her husband the inflicted blows with pharsis and knife. The assailants dragged her husband inside the house of Kishan where Lotan inflicted knife-blow on the person of her husband. Sunahara Devi (PW. 3), and Varun (PW. 8) corroborated the testimony of Seema Devi and Rohtash. Dr. B. L. Meena (PW. 9) conducted autopsy on the dead body of Jadvir Singh and as per post mortem report (Ex. P. 10) as many as 20 ante mortem injuries over the various parts of the body were found on the person of Jadvir Singh. The injury No. 20 was vertical stab would 3 cm x 1. 5 cm x Chest cavity on left side of mid chest at left clavical line, which was found by the autopsy surgeon, sufficient in the ordinary course of nature to cause death. The injuries sustained by the deceased as per post mortem report are as under :- (1) Vertical Lacerated wound 5 x 1cm x bone deep on Rt. fronto parietal area-rest clotted blood. (2) Abrasion 1 x 1 cm on Mid upon forehead. (3) Abrasion 4 x 1cm x sub chin area. (4) Abraided bruise 5 x 1. 5 cm on Lt. side chin at zygomatic area. (5) Lacerated wound 1. 5 x 1 cm x S. D. on Lt. Sub mandibular mid area. (6) Punctured lacerated wound 1. 5 x 1 cm on Rt. arm down 1/3 outer. (7) Red bruise 3 x 2cm on latral about Rt. elbow. (8) Red bruise 3 x 1. 5 cm. on mid 1/3 Rt. fore arm back. (9) Vertical gnisal punctured would 1. 5'' x 1/2'' x bone cut deep on back Lt. elbow joint on cut fracture, Lt. ulna-cut bone present clean cut regular margin. (10) Abraison 2 x 1cm on 1. 5'' below injury No. 9. (11) Two abraison 6 x 1. 5 cm & 2 x 1 cm on medial inner 1/3 Lt. forearm 3cm jut below. (12) Three abraisons 1 x 1/2 cm & 1/2 x 1/2 cm on close Lt. index fingre & hand at palm. (13) Six abrasions 4 x 2cm to 1/2 x 1/2cm dist. of 3'' to 1/2'' inbeted on lower 1/3rd back at lumber vertical area. (14) Two abraison 5 x 2cm & x 1/2cm on Rt. tibial at Mid 1/3rd 1. 5 on thigh. (15) Abrasion 3 x 1. 5 cm on front Rt. ankle joint. (16) Abrasion 1 x 1cm on lt. front toe at thumb. (17) Five Abrasion 5 x 2cm to 1 x 1cm placed, Two on Lt. knee laterally- 1cm gsu, 3rd on Lt. tibial front, 4th on 1/3rd middle & 5th on lower 1/3rd Lt. tibial. (18) Three abrauded bruise 4 x 2cm to 3 x 1/2 cm just 3cm in between on left upper chest. (19) Two abrasion 1 x 1cm just 3 cm in between on Rt. side mid chest. (20) Vertical stab wound 3cm x 1. 5 cm x chest cavity deep on Lt. side mid chest at mid, let, clavical line medial to nipple lt. 0 clean cut regular and well defind region-oozing dark blood. ;