SHIV KUMAR SHARMA, J. - (1.) IN respect of incident occurred on October 1, 1995 five accused were tried for having committed murder of Moti Lal, by the learned Special Judge SC & ST (Prevention of Attrocities Cases) Sawai Madhopur. The learned judge vide judgment dated November 20, 1976 convicted and sentenced all the accused as under - U/s. 148 IPc to suffer two years R. I. U/s. 302/149 IPc to suffer imprisonment for life and fine of Rs. 500/- in default of payment of fine to further sentence of one Year R. I. U/s. 323/149 IPc to suffer one year R. I. All the sentences were ordered to run concurrently.
(2.) BRIEFLY stated the prosecution case is that on October 1, 1995 the informant Banshi (PW. 7) and Moti (now deceased) were called by the appellants to their house to settle the boundary dispute. On hearing from Moti that question of fresh settlement did not arise as the dispute had already been resolved before the villagers, accused Ram Gopal, Ramcharan, Paras Ram, Harphool, Jagannath and Mahaveer made assault on Moti with lathies and axe. When the informant intervened he was also given beating. Hearing hue and cry when Sheonath and Jailal came, the accused fled away. Moti, in an unconscious state was initially removed to the hospital at Behravanda but the doctor advised the complainant to take Moti to Sawai Madhopur. While Moti was taken in a bus to Sawai Madhopur, he died on the way near village Bodal and the complainant party alongwith the dead body of Moti was forced to get down from the bus. The informant then gave information to the Police Station Khandar over telephone. Alam Singh ASI (PW. 13) reached at village Bodal where a written report (Ex. P-17) was handed over to him by informant Banshi at 2. 45 PM. Constable Chhota Singh (PW. 11) then carried the report to SHO Nohwar Singh (PW. 16) at P. S. Khandar where a case under sections 147, 148, 323, 302, 307 and 341 IPC was registered and investigation commenced. On completion of investigation charge sheet was filed only against five accused viz. Jagannath, Ram Gopal, Parasram, Ramcharan and Jagdish. In due course the case come up for trial before the learned trial Judge who framed charges under Sections 148, 302/149 and 323/149 IPC. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In their explanation under Section 313 Cr. P. C. the accused claimed innocence and stated that they were falsely implicated in the case. On hearing final submissions the learned trial judge convicted and sentenced the accused as indicated hereinabove. The prosecution case is primarily founded on the testimony of informant Banshi (PW. 7), Chhitar (PW. 5), Ram Prasad (PW. 6), Sheonath (PW. 9), and Kailash (PW. 12 ). Then comes the evidence of Dr. P. C. Gupta (PW. 15) who had performed autopsy on the dead body of the deceased. Nohwar Singh (PW. 16) conducted investigation and got recovered weapons of offence at the instance of accused persons. Dr. P. C. Gupta (PW. 15) in his deposition stated that the death of Motilal was homicidal and as per post mortem report (Ex. P-25) Motilal sustained following ante mortem injuries and cause of his death was fissured commuted fracture of both parietal bones, extradural haematoma and shock resulting from intrathoresic hemorrhage from right lung:- 1. Lacerated wound with clotted blood 6cm x 1cm x 1 cm bone deep obliquely transverely on central vault at scalp with swelling margin irregular and abraded hair hulb crushed 12cm above the right ear. On dissection at scalp there is diffuse dark colour haematoma aver both parietal bones but near scalp one skull bone, after removing the haematoma fistured commutted fracture of both parietal bone. `l' on opening the skull bone there is diffuse dark coloured haematoma between skull bone and dural meter (extra dural haematoma) present all the mentugesal brain conjested brain matter congested. 2 Lacerated wound with dark colour clotted blood 2cm x 1/2cm x 1/2cm x 1/2cm transversely over left lower eye lid. Simple-Blunt. 3. Incised wound with dark coloured clotted blood 3cm x 1/2cm x 1cm transversely on lower parietal centred back margin smooth. Clean cut with defined with taineral wound. Simple, Sharp. 4. Stab wound with dark coloured clotted blood 6cm x 1cm x 3cm obliquely transverse on paskire lateral surface upper 1/3rd of right leg with cut fracture at right fibula bone all muscle external surface at the cut margin smooth clean cut well defined angles sharp to injury grievous sharp. 5. Stab wound with dark colour clotted blood 5cm x 1cm x 2cm transverely on posterior surface of middle 11cm of left margin smooth clean cut well defined angles, sharp simple, Sharp. 6. Abrasion with dark colour clotted blood 4cm x 11cm vertically on external surface at upper 1/3rd at right thigh simple-Blunt. 7. Dark red colour bruise with Abrasion with clotted blood 15cm x 2cm obliquly vertical on right back with fracture at 5 to 10 ribs right side injury by blunt with red coloured bruises. 8. Red colour bruise 13cm x 3cm obliquely vertical on lower 1/2 at right back caused by blunt. 9. Red colour bruise: 16cm x 3cm obliquely transverse on lower 1/2 at right back with fracture underlying ribs injury by blunt. 10. Red colour bruise: 16cm x 3cm obliquely vertical on upper part of right buttock to extending to lower part of right back with fracture of underlying rib injury by blunt. Informant Banshi (PW. 7) deposed that on the pursuation of Ram Gopal, Paras Ram and Jagan Nath, Moti went to their house where they asked him to resolve the boundary dispute. On his saying that the dispute had already been settled, Ramgopal, Paras Ram, Jagdish, Ramcharan, Jagannath, Mahavir and Harphool made an assault on him with lathies and axe. Ramgopal inflicted two lathi-blows on the head of Moti whereas Paras Ram gave axe-blow on his feet and Ramcharan caused blows with lathi on his ribs. When informant Banshi made an attempt to intervene he was also given beating by Jagdish, Jagannath, Harphool and Mahavir on his head and back as a result of which he became unconscious and regained consciousness at Bodal from where he informed Police Station Khandar on telephone. Moti died at Bodal and they were, forced to get down from the bus. He then submitted written report (Ex. P-17 ). The said report was got written by one Ajit. In the cross examination Banshi stated that his house was at a distance of about 100-150 ft. from his brother Moti's house. The accused persons did not reside jointly in one house but they had their independent houses. He and Moti did not go together but he went to the house of accused after sometime and found Moti in injured condition. He further stated that he got the report written by police. Ajit wrote the report at the hospital. Chhitar (PW. 5) stated that around 8-9 a. m. on hearing hue and cry in front of Ram Gopal's house when he reached there he had seen Paras Ram armed with axe and Ram Gopal, Jagdish, Ram Charan, Harphool, Jagannath and Mahavir with lathies. Ram Gopal inflicted lathi blow on Moti's head as a result of which Moti fell down then Paras Ram gave axe glow on the feet of Moti. Ram Charan gave lathi blow on his ribs. Banshi was also given beating by them. When they raised shouts the accused fled away. They then took Moti and Banshi in a Tractor Trolley to Hospital at Behrabda and then on the advise of persons present there proceeded to take Moti and Banshi in a Bus to Sawai Madhopur. Moti died near village Bodal and they were forced to get down from the Bus. Ram Prasad (PW. 6) Sheonath (PW. 9) and Smt. Kailashi (PW. 12) also corroborated the version narrated by Chhitar (PW. 5 ).
(3.) THE injuries sustained by Banshi are not superficial in nature. As per injury report (Ex. P-24) Banshi sustained following injuries:- 1. Lacerated wound 6. 5cm x 1cm with clotted blood + bone deep 3/4cm vertically cut at parietal region of scalp 11. 5cm over the ear margin grievous abraded have bulb crushed. 2. Red colour bruise 17cm x 12cm + Obliquely vertical at back 3. Abrasion 5cm x 1/2cm with clotted blood + Obliquely vertical lower 1/2 of posterior surface of Rt. arm 4. Red colour bruise 12cm x 2 cm + Obliquely vertical on upper part of left back. 5. Red colour bruise 14cm x 2cm + Obliquely vertical on upper part of left back 2, 1/4 near to injury No. 4. 6. Lacerated wound 4cm x 1cm x 1cm with clotted blood + Vertical on posterior aspect of left side of scalp occipital parietal region margin irregular and abraded hair hulb crushed. Mr. Biri Singh Sinsinwar, learned counsel appearing for the appellants contended that the prosecution evidence is not certain about place and time of lodging the report. As per statement of Banshi (PW. 7) there are two places of lodging the report one is Bodal and another is Hospital. Banshi had already informed the police station Khandar on telephone, therefore, the written report (Ex. P-17) is hit by Section 162 Cr. P. C. Learned counsel further urged that all the prosecution witnesses have specifically implicated Mahavir and Harphool, but no charge sheet was filed against Harphool and Mahavir. Learned counsel further canvassed that all the witnesses examined by prosecution are interested witnesses and in absence of independent witness the evidence of prosecution witnesses ought to have been discarded. Reliance is placed on B. N. Singh vs. State of Gujrat etc. (1), Sohan & Anr. vs. State of Haryana & Anr. (2), Rajeevan and Another vs. State of Kerala (3), Nirbhay and Another vs. State of Rajasthan (4), Deepak Kumar vs. Ravi Virmani and Another (5), The State of Punjab vs. Jagir Singh & Ors. (6), Baldev Singh & Anr. vs. State of M. P. Per contra, Mr. S. C. Purohit, learned Public Prosecutor supported the impugned judgment and canvassed that the presence of prosecution witnesses is natural and as the incident had occurred in the house of accused non examination of independent witnesses is not fatal. ;