S. K. SHARMA, J. - (1.) THE appellants, seven in number, were placed on trial before the learned Additional Sessions Judge No. 1 (Fast Track) Kota in Sessions Case No. 65/2001. Learned Judge vide Judgment dated October 3, 2001 convicted and sentenced the appellants as under: Ram Bharos, Sher Singh Chaturbhuj, Ram Prasad, Mangi Lal, Ram Laxman and Sanjay @ Sanju: U/s. 302/149 IPC : Each to suffer life imprisonment and fine of Rs. 5,000/-, in default to further suffer three months simple imprisonment. U/s. 148 IPC : Each to suffer rigorous imprisonment for one year. Substantive sentences were directed to run concurrently.
(2.) THE prosecution case as unfolded during trial is as under: On March 28, 1997 at 9. 45 AM informant Ganesh (Pw. 10) submitted a written report (Ex. P-21) at MBS Hospital Kota to Rafiq Ahmed, ASI Police Station Kaithoon (Pw. 9) stating therein that around 7. 30 AM on the said day while he was taking bath at the bank of the river, his younger brother Hanuman (now deceased) proceeded towards the bushes to attend the call of nature. After taking bath when the informant was coming back he saw Sanju and Ram Laxman armed with Gupti and sword near the bank of river. Sanju and Ram Laxman proceeded towards the bushes where Hanuman had gone. THE informant followed them and found that Seru s/o Mohan Lal Dhakad, Ram Kalyan s/o Laxmi Narain Dhakad, Chaturbhuj s/o Durga Shankar Brahmin, Ram Bharos s/o Ram Nath Dhakad, Mangi Lal s/o Udai Lal Chobdar and Ram Prasad s/o Ratan Lal Nayak were inflicting blows on the person of Hanuman with Sword, Spear, Gandasi and Gupti. Sanju and Ram Laxman also started causing injuries to Hanuman with Gupti and Sword. Ram Kalyan, Chaturbhuj and Seru inflicted sword blows on the head of Hanuman with Sword, whereas Ram Prasad caused injury with Spear. After Hanuman had fallen, Ram Laxman inflicted Sword blow on the left side of neck and shoulder of Hanuman, Sanju gave blow with Gupti on the abdomen of Hanuman. Ram Bharos and Mangi Lal gave Gandasi blows on his right palm. THE informant who was at a distance, shouted for help. Chhitar and Suresh, who were at the bank of river came rushing. THE assailants on seeing them, fled away. Hanuman had died on the spot. THE informant with the help of Chhitar and Suresh took the dead body to MBS Hospital. On the basis of the report a case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body was subjected to autopsy, statements of witnesses were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 (Fast Track) Kota. Charges under sections 147, 148 and 302 IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 12 witnesses. In the explanation under section 313 Cr. P. C. , the appellants claimed innocence and one witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Death of Hanuman was undeniably homicidal in nature. As per autopsy report (Ex. P-20) following antemortem injuries were found on the dead body: 1. Incised wound 4" x 1/2" x 1/2" on dorsum of Right arm and metacorpal. 2. Incised wound 3/4" x 1/4" x 1/4" on dorsum of Rt. hand. 3. Stab wound 3/4" x 1/4" x 1" vessel on Middle & Left arm of Lt. upper side. 4. Abrasion 3/4" x 1/4" on dorsum of lt. hand. 5. Abrasion 3 2" x 1/2" on Lt. shoulder. 6. Incised wound 4" x 2" x 1" Tranum on left side neck 3/4 blow Lt. ear cutting vessel and nerves. 7.Lac wound 1" x 3/4" x 1/4" on Lt. Parietal region of scalp. 8. Lac wound 2" x 1/4" x 1/4" logitude on Head Lt. Parietal region. 9.Incised wound 6" x 5" x 2" on Rt. Frontal and parietal region breaking bone and Brain Matter is badly cut and coming out. 10.Stab wound 3/4" 1/4" x cavity deep vessel on Lt. hypochondrim 1" Lt. mid line. 11.Stab wound 1/2" 1/4" x cavity deep on Hypochondrim 1" Rt. Mid line. In the opinion of Dr. Y. K. Sharma (Pw. 7) cause of death was coma as a result of head injury. We have heard learned counsel for the parties and carefully scanned the material on record. Taking conspectus of the prosecution evidence we notice that informant Ganesh (Pw. 10), Chhitar Lal (Pw. 2) and Suresh Kumar (Pw. 11) are the three eye witnesses of the occurrence. Chhitar Lal and Suresh Kumar did not support the prosecution case and they were declared hostile. Testimony of Ganesh, real brother of deceased, has been relied upon by the learned trial Judge in convicting and sentencing the appellants. Learned counsel for the appellants made attempt to shatter the evidence of Ganesh and raised following contentions: (i) Ganesh is the chance witness and his presence at the time of incident is highly doubtful. (ii) Conduct of Ganesh in not protecting his real brother Hanuman from the assailants is highly doubtful. (iii) Ganesh admitted in his statement that he visited jail and had discussion with the appellants and offered to change his statement in consideration of money. (iv) In another trial bearing Sessions Case No. 42/2000 arises of the same incident, Ganesh changed his statement on account of which co-accused Ram Kalyan was acquitted by learned Additional Sessions Judge No. 5 Kota vide judgment dated August 16, 2002. Certified copy of the judgment has been placed for our perusal. A bare look at the statement of Ganesh reveals that he had initially named Sanju and Ram Laxman who were armed with Gupti and Sword and proceeded towards Hanuman. Ganesh further stated that thereafter he saw Ram Kalyan, Sheru, Chaturbhuj. Ram Bharos, Ram Prasad and Mangi Lal over standing having Swords, Gandasi and Spear. Ram Kalyan then inflicted sword on the head of Hanuman and others also started inflicting blows. After having stated that Ram Kalyan, Sheru, Chaturbhuj and Ram Prasad inflicted blows on the person of Hanuman. This witness deposed that Ram Laxman inflicted sword blow on the shoulder and neck of Hanuman, whereas Sanju caused 4-5 blows with Gupti on the abdomen. In the cross examination Ganesh deposed that his statement was not recorded by police. He further stated that he did not intervene because of fear.
(3.) ADMITTEDLY in the trial of co-accused Ram Kalyan which arose out of the same incident, Ganesh was declared hostile because he deposed that he did not see co-accused Ram Kalyan at the place of incident. Learned Additional Sessions Judge No. 5 Kota vide judgment dated August 16, 2002 acquitted co-accused Ram Kalyan of the charges under sections 147, 148 and 302/149 IPC and issued direction to initiate proceeding against Ganesh under Section 193 PC. In the instant case Ganesh deposed at the trial that he had gone to jail to meet accused Ram Bharos. In the cross examination Ganesh stated thus: Jkehkjksl ds Hkkbz jksmw us eqkls dgk Fkk fd rw ikwp&ipkl gtkj :i;s ys ys vksj jke Hkjksl dks Nwmok ns ftlls esa tsy ij eqfytke ls feyus x;k Fkka** Ganesh also stated that his statement was not recorded by the police and report Ex. P-21 was dictated by him to his brother and he did not read the report. In this back drop of the factual situation, we have to consider as to whether exaggeration, embroideries or embellishments made by a witness in his statement, smash the substratum of the prosecution ? Considering the maxim `falsus in uno, falsus in omnibus' their Lordships of the Supreme Court in Ugar Ahir vs. State of Bihar (AIR 1965 SC 277) held that the maxim falsus in uno, falsus in omnibus, (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. ;