CHAUHAN, J. - (1.) THE appellants have challenged the judgment dated 17. 9. 2003 passed by the Additional District & Sessions Judge (Fast Track) No. 4, Jhalawar Camp Aklera whereby he has convicted and sentenced the appellants for offences under Sections 148, 323/149, 324/149 and 302/149 IPC. For offence under Section 148 IPC, he has sentenced them to one year rigorous imprisonment and imposed a fine of Rs. 200/- each and to further undergo three months rigorous imprisonment in default thereof. For offence under Section 323/149 IPC, he has sentenced them to six months rigorous imprisonment each. For offence under Section 324/149 IPC. he has sentenced them to one year rigorous imprisonment and imposed a fine of Rs. 200/- each and to further undergo a period of three months of rigorous imprisonment in default thereof. Lastly, for offence under Section 302/149 IPC, he has sentenced them to life imprisonment each and imposed a fine of Rs. 500/- each and to further undergo six months of rigorous imprisonment in default thereof. It is pertinent to point out that the prosecution had charge-sheeted nineteen persons. However, vide impugned order dated 17. 9. 2003, the learned Trial Court had acquitted ten persons and has convicted only nine persons accused appellants before us.
(2.) THE brief facts of the case are that on 16. 9. 1999 the police recorded the Parcha Bayan (Ex. P. 1) of the injured, Phool Singh (PW. 1), at Governmental Hospital, Jhalawar. THE complainant alleged that in the morning, he had heard about a quarrel between Prabhulal resident of Uncha Kheda and Mathuri Lal of his village. THErefore, he along with other persons came to village Bhalta. Around 10-11 A. M. while he, Kanhiram (eventually the deceased in the present case), Keshar Singh, Chhaganlal and Ram Singh were sitting in village Bhalta at the Tea Shop of Jagannath Kumhar, at that time from the side of Thana, Prabhulal, Narayan Singh, Kanhiram, Mohanlal, Pyara, Man Singh, Ramlal, Mohanlal son of Kanwarlal, Ghanshyam and Motilal Tanwar came armed with "lathi". "gandasi" and stone in order to attack them. Meanwhile, Narayan inflicted a "gandasi" blow on the head of the complainant. Phool Singh son of Manna inflicted a "gandasi" blow on the head of Kanhiram, who died. THE complainant and his friends started running towards the field but the accused persons chased and assaulted them. THE accused persons also threw stones on the complainant party. Sabu Bai wife of Motilal, wife of Prabhulal and wife of Narayan also took part in throwing the stones. On the basis of this report, a former FIR, FIR No. 106/1999, was registered for offences under Sections 147, 149, 307 & 302/149 IPC and the investigation commended. Subsequently, the police filed a charge-sheet for the aforementioned offences. In order to prove its case the prosecution examined as many as 20 witnesses and submitted 72 documents. Although the defence did not produce any witness but it did submit only 4 documents. After considering both oral and documentary evidence, the learned Trial Court was pleased to acquit 10 of the accused persons. But was pleased to convict the present accused appellants as aforementioned. Mr. Biri Singh Sinsinwar, the learned counsel for the appellants, has argued that according to the prosecution, the site of crime is the tea stall situated near the bus stand of the village. Moreover, according to the prosecution on the fateful day, there was a "mela" (local fair ). Therefore, not only the shops were opened, but also the village was full of people Despite the fact that a large number of persons must have witnessed the alleged crime, the prosecution has examined only those persons who are interested witnesses. The prosecution has intentionally left out the independent witnesses. Furthermore, according to the prosecution, the entire alleged incident took place because in the morning there was a quarrel between Mathuri Lal, who belongs to the complainant village, and Prabhulal. According to him, in order to take revenge on the accused appellants, the complainant had also come with lethal weapon. However, during the course of arguments, he frankly conceded that no injury was caused by the complainant party to the accused appellants. During the course of arguments, he did suggest that the deceased died not because of any injury caused by the appellants, but because while the deceased and his companion were travelling from their village to village Bhalta, they met with a road accident and their jeep was damaged. The injuries caused to the deceased were as a result of the road accident. He further argued that according to the witnesses, the deceased was hit in the middle of the head with a sharp edged weapon. Yet, according to the Post-Mortem Report, he was hit on the back of the head. Thus, there is a contradiction between the ocular evidence and medical one. Furthermore, according to the witnesses, the deceased had fallen on the road. Therefore, according to him, the multiple fracture on the front of the head was caused by the fall on the road and not by the accused appellants. Hence, the Medical Report and the testimony of the witnesses clearly makes it a case of death caused by accident and not death caused by the homicide. He has argued that it is a clear cut case of roping in innocent persons. Initially, the prosecution has charge-sheeted nineteen persons, out of which ten persons have already been acquitted by the learned Trial Court. Lastly, he has argued that on the basis of same evidence by which others have acquitted, the present appellants have been convicted. On the other hand, the learned Public Prosecutor, Mr. R. P. Kuldeep has argued that the injured witnesses are the best witnesses to prove the case. For, their presence on the scene of the crime cannot be denied. In fact, their injuries testify to their being present at the scene of the crime. Secondly, in a melee when the people are being assaulted, the witnesses may not be able to pinpoint the exact location of the injury. But nonetheless, all the injured witnesses have stated that Phool Singh had hit the deceased on the head with a sharp edged weapon. This fact is corroborated from the Post-Mortem Report (Ex. P. 15), which clearly shows that an incised wound was caused on the left occipital parietal part of the head and lacerated wound was caused on the forehead and frontal part of the head. Moreover, the deceased has suffered seven injuries out of which five were incised wounds. One was lacerated wound and one was abrasion. The cause of death has been given as the injury caused on the head and injury No. 1, the incised wound on the left occipital parietal part of head, has been declared to be fatal to the life. Hence, according to the learned Public Prosecutor, the Post- Mortem Report Corroborates the testimony of the injured witnesses. Therefore, he supports the impugned order. We have heard both the learned counsels for the parties and have critically examined the record and scanned the impugned judgments.
(3.) UNDOUBTEDLY according to the prosecution witnesses, on the fateful day there was a local fair in the village Bhalta. Since the scene of the crime is the bus stand of village, there must have been a lot of hustle and bustle. Even Phool Singh (PW. 1) claims in his testimony that a large number of people had gathered when the appellants were assaulting the complainant party. Hence, independent persons must have witnessed the alleged crime. However, strangers are reluctant to testify in the Court of Law and they are not willing to involve themselves in prolong trials. Their coming and going to the Court from their village, would necessarily involve travel expenses, energy and their absence from their normal work life. In the absence of availability of independent witnesses, the prosecution has no other option but to examine the injured persons. No adverse inference can be drawn against the prosecution for non- examination of independent witnesses when injured witnesses are readily available and have been examined by the prosecution. After all, the injured witness is the best witness for establishing the case of the prosecution. His presence cannot be doubted at the scene of the crime. He is also most likely to reveal the truth. For, an injured witness would be reluctant to let go of the actual culprit and to falsely implicate innocent persons. Therefore, the mere fact that only injured witnesses have been examined in the present case would not be fatal to the prosecution. According to the Post-Mortem Report (Ex. P. 15), the deceased has suffered seven injuries out of which five are incised wounds. He has also suffered multiple fracture in the frontal part of the head. According to the Medical Jurist. Dr. Gauri Shanker Chauhan (PW. 13), the injury on the left occipital parietal part of the head was a fatal injury. Neither the Post- Mortem Report nor Dr. Chauhan reveal that the injures were caused as a result of a road accident. In fact, both the Medical Expert and the Post-Mortem Report reveal that the death was homicidal in nature. Therefore, the arguments of the learned counsel for the appellants that the death was caused by a road accident is meritless. Dayaram (PW. 9) corroborates the statement of Phool Singh (PW. 1) that in the morning he had come to Bhalta to sell milk, he had heard about a fight between Mathuri Lal and Prabhulal. He had gone back to his village and he had informed Phool Singh (PW. 1), the complainant, and his other companion. Union his information, they had come to village Bhalta. Phool Singh (PW. 1), Keshar Singh (PW. 2) Chhagan Singh (PW. 3 ). Ram Singh (PW 4), all of whom were injured in the alleged incident, have clearly stated that Phool Singh has assaulted the deceased with a `gandasi' (sharp edged weapon) on his head. The Post-Mortem Report (Ex. P. 15) as well as the injury Report (Ex. P. 22) of the deceased clearly shows that the deceased has received injuries by a sharp edged weapon on his head. Thus, the medical evidence does corroborate the testimony of the injured witnesses. Obviously, Phool Singh had come to the scene of the crime armed with a lethal weapon. He had assaulted the deceased with a sharp edged weapon on a vital part. Hence, he had the intention to cause the death of Kanhiram. Therefore, he is certainly guilty for causing the murder of Kanhiram. ;