PALSHIKAR, J. - (1.) THIS appeal is directed against the order dated 26. 9. 89 passed by the Sessions Judge, Churu, in Sessions Case No. 14/87 convicting the accused appellants of an offence u/s. 302 of the Indian Penal Code for committing murder of Amarnath and Bajrang Nath. The conviction was u/s. 302/34 of the Indian Penal Code.
(2.) THE appeal was filed by the accused from jail and they were unrepresented. We, therefore, requested Mr. Vineet Kumar Mathur, advocate, to assist as Amicus-curiae in this case and defend the accused. With the assistance of the learned Public Prosecutor, Mr. V. R. Mehta and Mr. Vineet Kumar Mathur, learned counsel for the accused, we have scrutinized and re-appreciated the evidence on record. The prosecution case, in brief, is that at about 2. 00 P. M. on 4th November'86, Amarnath and Bajrangnath were working in their field when their camel started going towards the adjacent field, they stopped it. However, the cultivators of the adjacent field, i. e. the accused persons wanted to put the camel in the Govt. Cattle Pond. However, the deceased objected to such doing and, therefore, the accused thrashed the deceased with lathis and fodder lifter ('jai' ). The accused are requested by the witnesses to give up the beating and the injured were taken to hospital. On the way they died. First information Report was lodged, investigation was conducted and four of the accused persons were arrested and prosecuted. The prosecution has examined, in support of its case, 15 witnesses. None was examined in defence. The learned Sessions Judge, on marshalling the facts and appreciating the evidence on record, came to the conclusion that the accused persons have committed murder of the deceased in furtherance of their common intention to do so. It is this order of conviction which is assailed before us by Mr. Vineet Kumar Mathur, learned counsel appearing Amicus-curiae of assault in for the accused. He submitted that there is no independent evidence this case. The evidence as it stands on record is unbelievable and grossly insufficient to warrant conviction u/s. 302 /34 of the Indian Penal Code. | Mr. Mathur submitted that the First Information Report was lodged in Police Station Ratangarh at about 10. 30 P. M. It is lodged by Smt. Lichhma, mother of the deceased, PW/1. It was contended by Mr. Mathur that the delay in lodging the FIR creates a serious doubt on the veracity of the report and the allegations made therein. According to him, the incident is alleged to have taken place at 2. 00 P. M. and the injured persons Amarnath and Bajrang Nath along with their mother Lichhma were taken by camel cart to Ratangarh where Lichhma was admitted for treatment and Amarnath and Bajrang Nath were pronounced dead. According to the learned counsel it was improbable thereafter for Lichhma to go to the Police Station Ratangarh and lodge the First Information Report. Commending on the evidence of Lichhma, the learned counsel submitted that there are several omissions in the testimony of this witness. She has stated in her examination-in-chief at one place that she did not lodge the First Information Report. Then she has retarded from that statement and again in the cross-examination she asserted that she did not lodge the First Information Report. The First Information Report does not mention the part played by witness PW/5 Mangilal. It does not speak of presence of Godawari PW/2. According to Mr. Mathur, therefore, the real happenings on 4. 11. 86 have not come on record at all and in such circumstances, no conviction could be recorded u/s. 302 I. P. C. Mr. Mathur then pointed out several discrepancies and contradictions in the evidence of PW/1, Lichhma, PW/2 Godawari and PW/5 Mangilal. According to the learned counsel, these three are the only eye-witnesses as alleged by the prosecution. Statement of Lichhma, PW/1 and Mangilal PW/5 exclude the presence of PW/2 Godawari. Even Godawari states in her deposition that Mangilal arrived at the scene of offence earlier to her. In the ultimate analysis, according to the learned counsel, the conviction of the accused persons will rest solely on the testimony of Lichhma and Mangilal. It was then pointed out by Mr. Mathur that according to the witnesses, serious injuries were caused by fodder lifter (Jai ). PW/2 Godawari states that ***** But the medical evidence belies this statement. There is no punctured wound on any of the deceased. No doubt some exaggeration is possible by the witnesses and should, therefore, be ex- cused. However, such exaggeration is not liable to be ex-cused. According to the learned counsel, therefore, no conviction can be sustained in the present case.
(3.) WE have re-appreciated the evidence on record. PW/1 Lichhma, who is the mother of the deceased, has stated that all the four accused persons came and started assaulting Amarnath and Bajrang Nath and she was injured on arms by Luna Ram. She has then stated that when wife of Bajrang Nath tried to intervene she was chased away by Luna Ram and she went into the Dhani. In her examination- in-chief, she has stated first that she did not give report in the Police Station and then she has stated that she did give the report. In the cross-examination she has, however, stated that Mangilal came on the scene after her sons were killed: ***** Then she has stated that Rukan Nath, PW/14 came about an hour after the incident. She also states that her daughter Godawari, PW/2 had taken the cattle to water and came on the scene after the assault. Then she has stated that when Mangilal came the accused caught hold of hies neck. If the evidence of this witness is scrutinized it will be seen that there are several discrepancies. If she has not lodged the First Information Report, the author of the report obviously would be Mangilal, who in his deposition specifically denies such position. He asserts that it was Lichhma, PW/1, who has lodged the First Information Report. If the testimony of Lichhma is to be accepted, Mangilal, Rukan Nath and Godawari cannot be believed to be eye-witnesses, as according to PW/1 Lichhma, all these persons came on the scene of offence after the assault was over. According to this witness, the only other eye-witness is Sanju, w/o Bajrang Nath, PW/13. In such circumstances, we feel it unsafe to accept the testimony of this witness without adequate corroboration. Pw/2 is Godawari, daughter of Pw/1 Lichhma, sister of the deceased. This witness states that when she came home she saw the accused persons beating the deceased. She then states that she tried to save the deceased, then she was chased away by Luna Ram and Arjun Ram. She has also stated when she came there Rukan Nath and Mangilal were already there: Eksds ij :du ukfk vksj ekaxhyky vk x;s Fksa** In cross-examination the witness states that she, Mangilal and Rukam Nath reached the spot at the same time. She has deposed in the cross-examination that the injury caused by 'jai' was through and through. This deposition of the witness is belied by the medical evidence which does not disclose any punctured wound. This witness has then stated in the cross-examination that Mangilal begged the accused not to further injure the deceased on which the beating was stopped. Mangilal also states so and both of them are corroborated by Rukan Nath, Pw/14. However, this statement is not supported by Lichhma. According to Lichhma, Pw/2 Godawari was not at the scene of offence at the time when the offence was committed. Pw/2 Godawari states that she saw the incident. There is thus, no corroboration found in the testimony of Godawari to the testimony of Pw/1 Lichhma. ;