BANSAL, J. - (1.) THE instant appeal is directed against the Judgment dated 24. 3. 2001 passed by the learned Additional Sessions Judge, Neem-Ka-Thana, District Sikar whereby accused appellants Mool Chand, Phool Chand, Munga Ram, Narayan and Shrawan Kumar have been convicted for the offences under Sections 304 Part-I/149 and 148 IPC and sentenced to suffer S. I. for seven years and a fine of Rs. 10,000/-, in default to further suffer S. I. for ten months and to suffer S. I. for one year and a fine of Rs. 1,000/-, in default to further suffer S. I. for one month each respectively.
(2.) BOTH the substantive sentences were ordered to run concurrently. Briefly stated the prosecution case is that on 29. 06. 99 at about 11. 00 p. m. accused appellants Mungaram, Moolchand, Narayan, Phoolchand and Shrawan assaulted Kailash S/o Geegaram, by caste- Saini, R/o-Dhani Bhatali, Village Chokdi and caused injuries on his person resulting in his death instantaneously. The incident is alleged to have taken place in the said Dhani in front of the house of Banwari S/o Dholuram and near the tree shown in Site Plan Ex. P2. Having caused the death of Kailash his dead body was put in the chowk (courtyard) of his house by the appellants. PW1 Smt. Jamna, PW2 Smt. Aanchi, PW4 Moolchand, PW6 Subhash, PW7 Tarachand and PW8 Vasudev had seen the occurrence and because of the threatening given by the appellants they did not intervene to rescue the deceased. Next morning the matter was reported to the police by PW6 Subhash who is brother of the deceased at 10. 20 a. m. In his written report Ex. P4 it was also alleged by PW6 Subhash that Raju and Kishan Lal had also assaulted the deceased. It was further stated that on account of enmity the accused appellants had caused the death of his brother Kailash. On the basis of the written report Ex. P4, formal, FIR Ex. 15 was registered and investigation commenced. Post-mortem on the dead body of the deceased was conducted by the Medical Board consisting of PW11 Dr. B. P. Agarwal. Post-mortem Report is Ex. P22. In the opinion of the medical board the cause of death was haemorrhagic shock due to injury to right lung. On completion of investigation a charge-sheet was filed against the accused appellants in the competent Court. Charge against Raju and Kishanlal were found false and groundless and, therefore, charge- sheet was not filed against them. The learned Magistrate committed the case to the Court of the learned Additional Sessions Judge, Neem-Ka-Thana who framed charges under Sections 148 and 302/149 IPC against the appellants. The accused- appellants pleaded not guilty and claimed trial. To prove the charges the prosecution examined as many as 16 witnesses. In their examination under Section 313 Cr. P. C. the accused appellants pleaded innocence. In defence DW1 Bhagoti W/o Banwari and DW2 Banshi were examined. The learned trial Judge on hearing the final submissions made by both the parties, convicted and sentenced the accused appellants as indicated here-in-above. I have heard the learned counsel for the accused appellants, learned Public Prosecutor for the State and have also perused the impugned Judgment as also the evidence on record. There is no dispute that the deceased met with homicidal death and this fact is established by the medical evidence on record. PW11 Dr. B. P. Agarwal stated that on 10. 06. 1999 he was posted as Medical Jurist, Government Hospital, Khandela and on the request of P. S. Khandela he along with two other members of the Medical Board conducted post-mortem examination of deceased Kailash S/o Geegaram, aged 35 years, by caste-Saini, R/o-Dhani Bhatta-Ki-Tan Chokdi and found the following injuries on the dead body:- EXTERNAL INJURIEs (1) Abrasion with clotted blood, 0. 5 x 2. x skin deep, right cheek. (2) Abrasion with clotted blood 2 x 2cm. x skin deep, left elbow dorsal. (3) Abrasion with clotted blood 1 x 0. 2 x skin deep, left leg. (4) Abrasion with clotted blood 1 x 0. 2 x skin deep, left thigh. (5) Abrasion with clotted blood 0. 7 x 0. 2 x skin deep, right leg. (6) Swelling with abrasion and contusion 3 x 3cm. , right leg. (7) Swelling with contusion 8 x 6cm. , left upper arm, blood infiltrated to muscles. (8) Bruise ill defined 12 x 12cm. on back in both scapular region extended up to lower & upper region of scapula. Blood infiltrated to subcutaneous & muscle on dissection. EXTERNAL INJURIEs Brain-Normal Walls, Ribs and Cartilages-Normal, multiple bruise present on back. On dissection there was infiltration of blood up to muscular level. Pleurae-Normal, fracture of 5th, 6th, 7th and 8th rib right side. Tear 8 x 5 cm. on right side. 200 ml. blood present on thoracic cavity. Right Lung-A laceration 3. 5 x 2. 5 cm. on the posterior aspect of right lung corresponding to the fractured rib.
(3.) DR. Agarwal either stated that all the injuries were ante- mortem in nature and were sufficient in the ordinary course of nature to cause death. In the opinion of the Medical Board, the cause of death was haemorrhagic shock due to injury to right lung. The post-mortem report Ex. P22 was prepared and signed by the members of the Medical Board. Learned counsel appearing for the accused-appellants contended that the learned Trial Court did not at all meticulously scan and scrutinize the evidence on record and has committed a manifest error in coming to the finding of the guilt of the appellants. All the alleged eye-witnesses are related to the deceased. PW4 Moolchand, PW6 Subhash and PW8 Vasudev are real brothers of the deceased. PW2 Aanchi is the mother of the deceased. PW1 Jamna W/o PW4 Moolchand and PW7 Tarachand S/o Moolchand are Bhabhi and nephew of the deceased respectively. Being highly interested witnesses and in absence of corroboration by the independent witnesses, their testimony is not credible and on close and careful scrutiny it is clear that they had not witnessed the incident. Learned counsel further submitted that the place the incident has been changed as it was not stated in written report Ex. P4 that the incident took place near the tree and in front of the house of Banwari but in their deposition these witnesses have stated that the deceased was assaulted by the appellants near the tree (show in Site Plan Ex. P2) and in front of the house belonging to Banwari. It was alleged in the written report Ex. P4 that on last night at about 11. 00 p. m. the appellants accompanied by Raju and Kishanlal assaulted the deceased Kailash and caused his death. When informant Subhash and his mother went to the spot they were threatened and, therefore, they came back at their house. The dead body of the deceased is lying at the spot. It was not stated in Ex. P4 that the deceased was dragged from his house and taken to a nearby tree and assaulted by the appellants. Thereafter his dead body was brought to his house by the appellants and put in the chowk (courtyard ). It was also submitted by the learned counsel that all the eye- witnesses are near relations of the deceased. They were six in number but they did not make efforts to rescue the deceased. Their unnatural conduct creates suspicion in the veracity of their testimony. It was also submitted by the learned counsel that in written report Ex. P4 Raju and Kishanlal were also named as the assailants but they were not chargesheeted by the police. Even in her statement PW2 Aanchi (mother of the deceased and also named as eye-witness in the written report Ex. P4) has stated that Deva, Surja and Raju also had assaulted the deceased. It would be pertinent to mention here that Deva and Surja were not named as assailants in the written report Ex. P4. In his deposition PW6 Subhash has stated that Kishan and Raju also had assaulted the deceased Kailash. PW7 Tarachand and PW8 Vasudev have named Raju as one of the assailants. These facts prove that some innocent persons also have falsely been implicated in the case. All the alleged eye-witnesses have not assigned specific act to any of the appellants. On post-mortem examination only eight injuries caused by the blunt weapon were found, out of which five were abrasions, one was bruise and at two place there was swelling. In the written report Ex. P4 seven accused were alleged to have caused injuries with lathies on the person of the deceased. Number of injuries also prove that some innocent persons have been implicated falsely in the case. Learned counsel further submitted that in the instant case it is not feasible to separate the truth from falsehood to come to the conclusion that who are the innocent and who are the real culprit. In such a situation all the appellants are entitled to acquittal. Learned Public Prosecutor appearing for the State as well as learned counsel for the complainant has supported the impugned Judgment. ;