BHARGAVA, J. - (1.) THIS is a criminal appeal against the judgment dated 10-6-1982 passed by the learned Sessions Judge, Jhalawar in Sessions Case No. 72 of 1981, convicting and sentencing them as under : - (1) Girdhari U/s. 148 IPC to 6 Months RI and Rs. 500 as fine. In default three months RI (2) Mangiya alias Mangiya Lal (3) Gheesa (4) Goria (5) Bhura (6) Prabhu S/o Amar Singh - do - (1) Girdhari U/s. 304-II IPC to 10 years' RI and a fine of Rs. 1000/-, in default one year's RI (2) Mangiya alias Mangi Lal (3) Gheesa (4) Goriya (5) Bhura (6) Prabhu son of Amar Singh - do - (1) Mangiya alias Mangi Lal U/s. 326 IPC to 3 years' RI and a fine of Rs. 1000/- in default six months RI (1) Girdhari U/s. 326 r/w 149 IPC Two years' RI and a fine of Rs. 500/- in default three months' SI (2) Gheesa (3) Goriya (4) Bhura (5) Prabhu s/o Amar Singh - do - (1) Girdhari U/s. 324 r/w 149 IPC One year's RI and a fine of Rs. 200/- in default one month's RI (2) Mangiya s/o Mangi Lal (3) Gheesa (4) Goriya (5) Bhura (6) Prabhu s/o Amar Singh - do - (1) Babru U/s. 326 r/w 149 IPC Two months' SI and a fine of Rs. 100/- in default 15 days' SI (1) Babru U/s. 148, 304-II & 324 IPC Given the benefit of Probation of Offenders' Act. All the sentences were ordered to run concurrently.
(2.) THE prosecution case, in brief, is that one Kishore was passing through the way and when he reached near the house of accused Girdhari he was beaten by the accused appellants and five others in the morning before sun-rise, on 5-6-1981. After hearing the cries of Kishore other persons from nearby also reached the spot and they also received injuries at the hands of the accused persons. Nawal and Amar brought injured Kishore in the bullock-cart to Manohar Thana. But, Kishore succumbed to his injuries in the way. Shri Ram Narain, S. H. O. , Police Station, Manohar Thana reached the village at about 12. 30 same day in connection with some other case, and he was orally informed by Dholi Lal that his brother Kishore has been murdered by the accused persons and that others have also received injuries. S. H. O. sent a written report Ex. P/l to the Police Station through Constable Hukam Singh, which was registered at the police station at about 7 p. m. which is FIR P/31. A case was registered under Section 302, 147, 148 and 307 read with Section 149. After investigation the case was challaned and committed to Sessions. THE learned Sessions Judge framed the following charges against the accused persons : - (1)Babu: Under Sections 148, 302/149, 326, 324/149 and 323, IPC and other accused persons Namely, Girdhari, Gheesa, Amara, Mangiya, Prabhu, Goriya, Heera, Kashya, Kanhaiva, Bhure, Prabhu son of Amar Singh were charged under sections 148, 302/149, 326/149, 324/149 and 323, IPC. All the accused persons pleaded not guilty and denied the allegations of the prosecution in their statement under Section 313, Cr. P. C. and stated that they did not give beating to Kishore or others. Accused Mangiya stated that the complainant party gave beating to his mother Mooli Bai. Dholiya, Deviya, Smt. Gendi, Bapu and Dhallu came to his house and beat his mother and he and his father Harlal tried to defend his mother, his brother Amara was also present there and the other accused persons were witnesses in the case against the complainant party. The accused persons have been falsely implicated. Accused Amara has also stated this fact in his statement under Section 313 Cr. P. C. The prosecution examined 21 witnesses and the defence examined three witnesses DW/1 S. K. Gupta, DVV/2 Mooli Bai and DW/3 Dr. Kamal Singh who had examined Mooli Bai and found injuries on her body, as mentioned in Ex. D/12. After hearing the arguments the learned Sessions Judge acquitted Prabhu son of Kaliya, Heera, Kanhaiya. Kasya and Amara son of Har Lal of the offences under Sections 148, 302/149, 326 read with Section 149 and Sec. 149 read with Section 323 IPC but convicted and sentenced the present accused appellants as indicated above. The accused appellants feeling themselves aggrieved of the said convictions and sentences have preferred this appeal before this Court. The learned counsel for the accused-appellant has vehemently argued that the appeal should be accepted and the judgment of the learned Sessions Judge should be reversed as the prosecution has not been able to prove the case against the accused-appellants beyond all reasonable doubt. The prosecution story is full of infirmities and improbabilities. The FIR has been recorded very late and the unusual delay has not been explained and, therefore, is embellished and gave a coloured version and contains distorted facts. The prosecution witnesses have implicated the accused falsely to save their own skin so that the accused persons may not appear as witnesses against them for beating Smt. Mooli Bai. The defence story is more probable and the accused-appellants are entitled for right of private defence. The prosecution has not explained the injuries caused to the accused persons. There was no motive for committing the murder of deceased Kishore. The investigation has not been fair and there are several irregularities in the investigation which has greatly prejudiced the accused-appellants. It has further been argued that the accused-appellant cannot be convicted under Section 304-H IPC as there is no evidence on record to show that as to which of the accused had caused the fatal injuries. The trial Court framed charge under Section 302/149, IPC and the accused have been acquitted of the same: but they have been convicted under Section 304-11, I. P. C. simplicitor and since there is no evidence whatsoever as to which of the accused-appellants inflicted the fatal injuries on the deceased, they cannot be convicted under Section 304-11, IPC and they are entitled for acquittal on this ground alone.
(3.) I have carefully gone through the bulky record of the case and considered the arguments advanced before me by the learned counsel for the parties. The incident is alleged to have happened on 5-6-81 in the early morning hours and the FIR Ex. 31 has been recorded at Manohar Thana at 7 p. m. , thus, after more than 12 hours, on the basis of a written report Ex. P/l by PW 21 Ram Narain sent through a constable and the prosecution has offered no explanation for the delay. The prosecution, has examined, in this connection. P. W. 19 Purushottam who was working as A. S. I, at Manohar Thana on 5-6-1981 and received the written report from S. H. O. Ram Narain Ex. P/l, through constable Hukam Singh, which was registered as F. I. R. No. I 28 of 1981 under Sections 302, 147, I. P. C. etc. and this F. I. R. , has been marked as Annx. P/31. He has also deposed that constable Hukam Chand had come all alone and there was no person with him and that Ex. P/31 was recorded at about 7 p. m. on 5-6-1981. In the roznamcha at: report No. 140 there is a description of Ex. P/l without any number whatsoever. The entry has been marked as Ex. D/l and he has deposed that it does not bear any over-writing and No. 28 is visible. This report in roznamcha 140 has been written by Mahendra Pal Singh. The prosecution has not examined either constable Hukam Singh or the person who had brought the written report Ex. P/l, or Mahendrapal Singh in whose handwriting entry has been made in the roznamcha at No. 140 P. W. 21 Ram Narain, S. H. O. Manohar Thana has admitted that when he reached Khanpuria Dulilal lodged the report orally that his brother Kishore has been murdered by the accused persons and thereupon he sent a written report Ex. P/l through a constable to the police station for being recorded as F. I. R. He has admitted that he has gone to the village in connection with investigation of another case registered at No. 6 of 1981 dated 4-6-81, under Section 460, I. P. C. which has been entered at No. 100 in the roznamcha. He has admitted that he had reached the place of occurrence at about 12. 30 p. m. and that he had inspected the injuries of Dhulilal and he had come to know that other persons have also received injuries before he wrote Ex. P/l. But he could not inspect the injuries of other injured persons as they were not available, nor he made any effort to call the injured persons and because he wanted to prepare the panchayat nama immediately and, there he had sent the written report with the constable with the instructions that the injuries of the injured persons may be medically examined. The panchayatnama of the dead body was recorded at about 3. 30 p. m. and before he had done nothing except sending the written report without any number and he also admitted in cross-examination that Smt. Mooli Bai wife of Harlal had also come to him and showed her injuries and that he had advised her to make a report in the thana and got herself medically examined. Whereas P. W. 7 Devi Ram has deposed that when the S. H. O. came at the house of Kishore, the whole matter was reported by his brother Duliya to him and the S. H. O. advised them that the dead body of Kishore should be taken to Manohar Thana and thereupon he along with others took the dead body in a cart to Manohar Thana and showed the injuries of the complainant party. In his cross examination when he was confronted with his statement recorded under Sec. 161, Cr. P. C. Ex. D 6 that he had gone to the police station directly. He has denied having made such a statement to the police. Similarly, P. W. 12 Kashi Ram who is also an eye witness has admitted in his cross examination that he had gone to the police station. Manohar and lodged an F. I. R. before the dead body was taken to the police station and he had reached the police station before noon in the day time, and Head Sahib was available in the thana; but he did not lodge the report and while he was returning from the thana he saw the dead body of Kishore being taken to the thana. He has also admitted that when he had gone to Thana to file the EIR, PW/7 Devi Ram had also come and has put his thumb mark on the FIR lodged by him which was sent by Kashi Ram. He has, of course, denied that in the report that was lodged by him and Devi Ram that some body has murdered Kishore and has left on the way. This report lodged by Devi Ram and Kashi Ram has not seen the light of the day and has been suppressed by the prosecution. Both PW/7 and PW/12 have supported the prosecution case and it cannot be said that they wanted to favour the accused persons. The statement of PW 1 Ram Narain that he had gone to Chanchora on 4-6-1982 and had taken the file of investigation along with him; but he did not show or got entry made in the roznamcha in the Police Station Chanchora, is not believable. Though, entry No. 100 of the roznamcha entry Ex. P/56 there is a mention for leaving the police station for Chanchora. The fact that the site inspection note prepared by this witness PW 1 Ram Narain on 5-6 1981, at about 3. 45 p. m. bears the number of FIR as 28/81, which is not possible because the FIR itself was lodged at 7 p. m. at the Police Station, Manohar and No. 28/81 could hot have occurred in Ex. 41 which was prepared at 3. 45 p. m. In Ex. P 13, which is the inquest report, No. 28/81 al> o finds place which has subsequently been cut by somebody. This inquest report was prepared on 5-6-1981 at 2 45 p. m. In Ex. P 13 also it was impossible that the FIR No. 28/1981 could have been recorded, because the F. I. R. itself was recorded at 28/81 at 7 p. m. on 5-6-81 and, therefore, the No 28 could not have found place either in Ex. P 13, or Ex. P 14. The learned counsel for the appellants has shown me Ex. P. 13 which was supplied to the accused by the police wherein FIR 28/81 has not been cut, which only shows that the prosecution has not been fair during the investigation and even during the trial. The number of F!r has not been mentioned in several other exhibits. The learned counsel for the appellants has also argued that PW 21 is an interested witness and is favouring the complainant party. It has been admitted by both PW 5 Duli Lal and PW 7 Devi Ram that the S. H. O. stayed at their house for 3-4 days. PW 21 of course, has denied this fact. FIR is alleged to have been recorded at 7 p. m. . through PW 21 had sent Hukam Chand constable by a tractor who lodged the FIR at about 1. 30 p. m. and it should have been registered latest by 3 p. m. or so. It is also very strange that though the incident occurred between 5-6 a. m. , in the morning, and though the villagers had gathered and knew about the incident, but none of them went to the police station to lodge the FIR. The learned counsel for the appellant has relied on S. Natavaran vs. State of Mysore (1) and has argued that since the FIR has been filed after a great delay and there is no explanation of delay, and the FIR lodged by PW 7 and PW 12 has been suppressed. Neither Constable Hukam Singh who had taken Ex. P/l to the police station, nor the person who had made the entry in the roznamcha has been examined by the prosecution. Therefore, the FIR is blemished, concocted and fabricated and therefore, the whole prosecution story should collapse, for the reasons and the evidence, I am in agreement with the argument of the learned Counsel for the appellant that the delay in lodging the F. I. R. and the prosecution having not offered any explanation whatsoever and the fact that Hukam Chand and Mahendra Pal Singe have not been examined, the report lodged by PW 7, and PW 12 has been suppressed by the prosecution and there are inherent infirmity inasmuch as the number of the FIR No. 28/1981 finding place in Ex. P 13 and Ex. P 14, which are admittedly prepared before the FIR was registered at Sr. No. 28/81. Ex. P 31 F. I. R. is not reliable and makes the whole prosecution very suspicious. Coming to the next argument of the learned counsel for the appellants, on which he laid stress is that the oral evidence of the prosecution witness is not corroborated by the medical evidence, rather it is contradicted. He has argued that all the so-called eye-witnesses and including the injured persons have stated in their statement before the Court that the accused-persons inflicted the injuries on the deceased Kishore by gandasi (dana-dan gandase se mara.) Whereas deceased Kishore has received the following injuries as deposed by PW/6 Dr. Kamala Shankar who conducted the post-mortem and has recorded in the postmortem report Ex. P/5:- 1. One incised wound 3-1/2" x 1/2" deep upto bone on the right parietal region-upper part. 2. Incised wound 3" x 1/2" deep upto bone on posterior part of sight parietal region obliquely. 3. In cised wound 3-1/2" x 1/2" deep upto bone on the interior part of the right parietal region obliquely. 4. Incised wound 1" x 1/4" x 1/2" between right index finger and middle finger. ;