SHARMA, J. - (1.) THE accused appellants have challenged the judgment dated 16. 4. 2001 passed by the Additional Sessions Judge No. 2, Bundi, whereby they have been convicted for offence under Section 302 IPC and have been sentenced to life imprisonment and imposed with a fine of Rs. 1,000/-, and to further undergo a sentence of one year simple imprisonment, in default thereof.
(2.) IN brief, the facts of the prosecution are that on 19. 2. 2000 Kanhaiya Lal, (PW. 1) lodged a written report (Ex. P. 1), at Police Station Kapren, wherein he claimed that he is resident of Village Bahadawali. On 18. 2. 2000 his son Siyaram, age 27 years, had gone to the house of Shri Kishan Gurjar at Ghat Ka Barana for taking part in a local feast. Kaluram and Jugraj had also gone with him. He further claimed that in the night around about 12 O' clock, Kishan Gopal, S/o Shri Hiralal Gurjar, resident of Laban, came to his village and informed him that Siyaram was assaulted by Kanhaiya Lal (appellant No. 1) and his son Babulal (appellant No. 2) with `lathis'. He also informed him that Siyaram is lying unconscious. He immediately went to Ghat Ka Barana and saw his son. His son was bleeding from his head and was breathing slowly. He further alleged that he and the villagers placed his son in a jeep and took him to the hospital at Kapren. However, on the way his son expired. He further alleged in the written report that there is an animosity in between his son and Kanhaiya Lal's brother Prabhulal. It is for this reason that Kanhaiya Lal and his son Babulal had assaulted his son. Lastly, he alleged that Kalulal Gurjar and Ram Lal Meena are the eyewitnesses of this incident. On the basis of this written report, a former FIR, FIR No. 17/2000 (Ex. P. 2), was chalked out for the offence under Section 302 read with Section 34 IPC. After completing the investigation, the police had filed a chargesheet against the appellants for offences under Section 302 read with Section 34 IPC. In order to prove its case, the prosecution had examined ten witnesses and submitted eight documents. Statements of the accused were recorded under Section 313 Cr. P. C. and they denied the prosecution story. After going through the oral and documentary evidence, the learned Trial Court was pleased to convict and sentence the accused appellants as aforementioned. Hence, this appeal before us. Mr. S. K. Jain, the learned counsel for the appellants has vehemently argued that the prosecution case is replete with contradictions and lacunae. Initially, the prosecution named Kalulal and Ramlal as the two eye witnesses of the alleged incident. Subsequently, it introduced Jugraj (PW. 5) as an eyewitness, while it dropped Ram Lal from the array of witnesses. Secondly, although Kaluram has been produced as star witness, but his testimony is absolutely vague and full of contradictions. Therefore, he is an untrustworthy witness. His testimony cannot be accepted for convicting the accused appellants. Thirdly, Jugraj's (PW. 5) testimony is also full of contradictions as he has changed his story from his stand taken in his statement under Section 161 Cr. P. C. Hence, he too is an unreliable witness. Thirdly, the alleged recovery of the "lathi" does not connect the accused Babulal to the alleged offence. For, there is no FSL Report. Lastly, even the Investigating Officer has not been examined who was a material witness of the prosecution. Thus, the prosecution has failed to prove its case beyond a reasonable doubt. On the other hand, Mr. R. P. Kuldeep, the learned Public Prosecutor for the State, has argued that according to the Post- Mortem Report (Ex. P. 7), the death of the deceased Siyaram was homicidal in nature. According to Kaluram (PW. 9) and Jugraj (PW. 5), they have witnessed the said incident. The Post-mortem Report corroborates their testimonies. Hence, the prosecution has established its case beyond a reasonable doubt. We have heard the learned counsels for the parties and have perused the impugned judgment and the record, which is before us.
(3.) UNDOUBTEDLY, Kaluram (PW. 9) is the star witness of the prosecution. However, his testimony is most vague and full of contractions. In his examination-in-chief, he claimed that after feasting, Siyaram, Jugraj and he were roaming in the Village when Kanhaiya Lal, the appellant No. 1, called them. He further stated that Kanhaiya Lal and Babulal hit Siyaram with Lathi. However, he neither describes the place of injury nor the number of times the deceased was hit with a Lathi. It is very surprising that the person who claims to be an eye witness has not described the incident in any great detail. He neither tells us about the place of the incident, nor the manner of assault, nor the reaction of the injured, nor about the number of injuries sustained by the deceased, nor about the sequences of the assault. Such a vague statement casts a doubt on the veracity of the testimony. His testimony is further weakened by the fact that it is replete with contradictions from his earlier statement given under Section 161 Cr. P. C. His statement under Section 161 Cr. P. C. has been marked as Ex. D. 5. According to his statement under Section 161 Cr. P. C. , there was some altercation, which had taken place between Siyaram and the appellant No. 1 at the feast. However, in his testimony, he denied this fact. In his statement, he claimed that because of the altercation, they were leaving the place of the feast and Kanhaiya Lal followed them. But in his testimony, he denied this fact and claimed that Kanhaiya Lal had called the deceased. Although in his statement, he does not name Jugraj as being with them at the time of incident, yet in his testimony, he claimed that he had informed the police about this fact. Similarly, on other points, he denied the statement given by him to the police. These contradictions were specifically pointed out to him in his cross-examination, but they have not been explained by him. His only explanation is that he has told the police, but the fact has not been recorded in his statement. Because of the general, non- specific, ombudsman like nature of his testimony, because of contradictory stand taken by the witness, we are not inclined to believe this witness. Jugraj, (PW. 5) is the other alleged eyewitness of the incident. However, interestingly in his statement recorded under Section 161 Cr. P. C. (Ex. D. 3), he had clearly stated that he was not at the scene of the crime In fact, while he was at the feast, he was informed by Kalulal that Siyaram has been assaulted. Thus, initially prosecution did not project him as an eyewitness. According to the complainant himself, there are only two eyewitnesses of the incident, namely Kaluram and Ramlal. Interestingly, the prosecution did not examine Ramlal as an eyewitness. The prosecution has, therefore, substituted Ramlal with Jugraj (PW. 5 ). In order to introduce him as an eyewitness Kaluram (PW. 9) also claims that Jagraj (PW. 5) with him. When Jugraj is confronted with the contradictions that he was not an eyewitness of the crime as claimed in his statement under Section 161 Cr. P. C. (Ex. D. 3), he merely denies the contraction, but offers no explanation. Like Kaluram's testimony, Jugraj's testimony is also replete with the contradictions. He, too, denies the fact that some altercation had taken place between Kanhaiya Lal and Siyaram. He denies the fact that he was sitting in front of the fire, warming himself, when he was informed that Siyaram has been assaulted. He alleged that both the appellants assaulted twice and thrice on the head of the deceased with Lathis. He claims that immediately after assaulting, the appellants were caught by the villagers, but somehow managed to make their escape good. However, this fact has not been mentioned anywhere in his either statement recorded by the police. Thus, we find that his testimony is vague, replete with self- contradictions. Hence, we do not find him as a trustworthy witness. The alleged recovery of the Lathi at the instance of Babulal, the appellant No. 2, does not help the prosecution case. Firstly, the recovery is alleged to be from an open place. Secondly, the Lathi does not have any blood. Thirdly, there is no FSL Report with regard to the Lathi. Therefore, the recovery is meaningless. ;