S. K. SHARMA, J. - (1.) THE appellants in this appeal were put up for trial before the Additional Sessions Judge Bayana District Bharatpur in Sessions Case No. 3/1998 for having committed murder of Sunil Kumar. Learned Additional Sessions Judge vide judgment dated September 29, 2000 convicted and sentenced the appellants as under:- (1) Babu Lal U/s. 302 IPc To suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer Ten Days Rigorous Imprisonment. (2) Ramswaroop (3) Neetu & (4) Ashok Kumar: U/s. 302/34 IPc To suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer Ten Days Rigorous Imprisonment.
(2.) PUT briefly the prosecution case is that on August 23, 1997 at 8. 45 PM informant Manohar Lal instituted written report (Ex. P- 1) with the Police Station Bayana alleging therein that at about 7. 30 PM when he along with his sons Sunil Kumar, Mukesh Kumar, Yogesh Kumar and Mahesh Kumar s/o Gopi Chand were sitting in their shop, the appellants Babu Lal, Ramswaroop, Ashok and Neetu came to the shop and started hurling abuses. Babu Lal who was armed with knife, exhorted to catch hold of all the persons present in the shop, pursuant to which they caught hold of the persons present in the shop and thereafter Babu Lal inflicted knife-blow on the right side of chest of Sunil Kumar who dropped dead. The appellants then took to their heels. On the basis of said report the police registered a case under Section 302/34 IPC and investigation commenced. After completion of the investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Bayana. Charges under Sections 147, 149, 341 and 302 IPC were framed against the appellants who denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 19 witnesses. In their explanation under Section 313 Cr. P. C. , the appellants claimed innocence. Four witnesses in defence were however examined. On hearing final submissions the learned trial judge convicted and sentenced the appellants as indicated herein above. The structure of the prosecution case is built on the foundation of the testimony of Manohar Lal (PW. 1), Mahesh Kumar (PW. 2), Mukesh Kumar (PW. 3), Gopi Chand (PW. 7) and Yogesh Kumar (PW. 8 ). Dr. K. G. Mittal (PW. 5) is the doctor who conducted the post mortem examination on the body of the deceased. The post mortem report and the evidence of Dr. K. G. Mittal leaves no manner of doubt that Sunil Kumar met a homicidal death. Rajendra Singh (PW. 18) and Nasir Khan (PW. 19) are the Investigating Officers. Informant Manohar Lal (PW. 1), the father of deceased Sunil Kumar, in his deposition stated that while he and his sons Sunil, Mukesh and Yogesh and nephew Mahesh were sitting in the shop the four appellants and one Thankur Das came to the shop and Babu Lal started hurling abuses to Sunil. The informant then asked not to hurl abuses. Babu Lal who was equipped with knife, exhorted to catch hold of all. Ram Swaroop and Thakur Das then caught hold of Sunil and Babu Lal inflicted knife blow on the right side of abdomen of Sunil who fell down and became unconscious and Neetu and Ashok caught hold of the informant. Finding Sunil dead, the assailants fled. In his cross examination Manohar Lal admitted that in the written report (Ex. P-1) and his police statement (Ex. D-1) he did not state that Babu Lal hurled abuses individually to Sunil and Ram Swaroop and Thakur Das caught hold of Sunil. Mahesh Kumar (PW. 2), Mukesh Kumar (PW. 3), Gopi Chand (PW. 7) and Yogesh Kumar (PW. 8) in their examination in chief repeated the version narrated by the informant Manohar Lal. However, when these witnesses were confronted with their police statements, they deposed that although they told the police that Ram Swaroop and Thakur Das caught hold of Sunil and Neetu and Ashok belaboured Manohar Lal but the police did not mention this fact in their statements. In the police statements, which got exhibited by the defence, the initial version of these witnesses was that Ram Swaroop, Neetu, Ashok Kumar and one Thakur Das caught hold of all and Babu Lal inflicted knife blow on the person of Sunil. From the record it appears that although supplementary charge sheet was filed against Thakur Das but no prima facie case was found established against him and he was discharged. Adverting to the post mortem report (Ex. P-4) we find that deceased Sunil sustained following antemortem injury: Obliq stab wound sharp in nature 9 x 4 cm, 10cm depth in right lobe of Liver Muscle of adjacent area cut and lacerated in nature. Fracture of 9, 10, 11th rib present on right side of back laterally. Cause of death was severe uncontrollable haemorrhage that caused death in few minutes.
(3.) INVESTIGATING Officer Nasir Khan (PW. 19) got recovered single part of scissors vide Ex. P-14 allegedly used in commission of offence at the instance of appellant Babu Lal. It was sent to FSL and as per FSL report (Ex. P-21) it was not found stained with blood. Mr. S. R. Bajwa, learned Senior Advocate, appearing for the appellants criticised the impugned judgment of learned trial Judge from the various angles. According to learned counsel the prosecution witnesses have indulged in making material improvements in their court statements upon their earlier version divulged before the Investigating Agency. The so-called eye- witnesses are highly partisan being related to the deceased and their testimony calls for a stringent scrutiny. They cannot be placed in the category of wholly reliable witnesses. It is further contended that the allegation leveled in the FIR against Babu Lal is that he inflicted knife-blow on the person of deceased with a knife, but the recovery allegedly effected from him is that of scissors. There is material discrepancy between the medical evidence and the ocular evidence. The site plan of the place of incident does not lend any corroboration to the ocular testimony of prosecution witnesses. The incident admittedly occurred in the market place, still no independent witness has been examined by the prosecution. It is also contended that the injuries suffered by the appellant Babu Lal have not been explained by the prosecution. The prosecution has miserably failed to spell out the proximate cause of the occurrence. The defence evidence has been brushed aside by the learned trial Judge in a callous manner. Learned Senior Counsel alternatively submitted that from the evidence adduced by the prosecution the common intention of appellants to commit the crime is not established. In so far as the allegation against appellant Babu Lal is concerned, it is contended that only one single injury has been attributed to him, therefore, from the evidence on record and established circumstances it is not possible to say that certainity that Babu Lal intended to cause the death of Sunil. Thus the case against Babu Lal does not travel beyond Sec. 304 part II IPC. Reliance is placed on Mavila Thamban Nambiar vs. State of Kerala (1), and R. V. Thankur vs. State of Maharashtra On the other hand Mr. B. M. Sharma, learned Public Prosecutor, and Mr. Biri Singh, learned counsel for the complainant, supported the impugned judgment and contended that the guilt of appellants is established from the material on record and they have been rightly convicted and sentenced. Reliance is placed on Nandu Rastogi @ Nandji Rastogi & Another vs. State of Bihar (3), Kalpesh Kumar @ Bhajiyu Gunvantlal Soni vs. State of Gujrat (4), Dhupa Chamar and Ors. vs. State of Bihar (5), Surendra Chauhan vs. State of M. P. (6), and Mahesh Balmiki @ Munna vs. State of M. P. ;