S. S. BYAS, J. - (1.) BY his judgment dated June 14, 1976 the learned Additional Sessions Judge, Sri Ganganagar has convicted the appellants Patsingh and Deepsingh under section 302/34, I. P. C, and sentenced each of them to imprisonment for life with a fine of Rs. 200/-, in default of the payment of fine to further undergo three months' rigorous imprisonment. The accused have come-up in appeal and challenge their conviction. The prosecution case may be summed - up as under.
(2.) IN 1974, one battalion of Border Home Guards was stationed with its Headquarters at Sri Ganganagar. PW 10 Ranjeet Kumar Sen was its Commandant. One Company (C) of this battalion was detailed on duty at Mirzewala P. S. Mathili Rathan. PW16 Charanjitsingh was the Commander of this company. Accused Patsingh and PW 14 Harbhajan Singh were the Platoon Commanders and accused Deepsingh and Amra Ram were the Home Guards whereas the deceased Kanaram was a Hawaldar in this company. PW 12 Chandawa was working as sweeper there. PW 16 Charanjit Singh remained on leave for 44 days preceding November 8, 1974 and in his absence accused Patsingh was officiating as Company Commander. Kanaram was turbulent and trouble-shooter. He was badly addicted to liquor and remained drunk day and night. After taking liquor, he was in the habit of picking-up quarrel with the persons of the Company. PW 16 Charanjit Singh returned from leave and joined duty on November 8, 1974 At about 9. 00 a. m. on November 8, 1974, PW 14 Harbhajansingh appeared before him and reported that Kanaram had taken liquor and was making noise. Charanjit Singh drew up report EX. D2 and sent it to the Commandant at Sri Ganganagar, requesting therein that Kanaram may be immediately transferred to some other Company. IN the morning on November 9, 1974. Charanjit Singh learnt that Kanaram was lying dead in his room. He went there and found some injuries on his body. He drew up report EX. D 3, took it to Police Station Mathili Rathan and presented it there. It was stated therein that the dead body of Kanaram was lying in his room. The S. H. O. ' Shaitansingh (PW 17) proceeded to hold an enquiry under section 174, Cr. P. C. He arrived on the spot and prepared the inquest report of the dead body of Kanaram. He found one knife and some broken pieces of stick lying around the dead body. They were seized and sealed. He also seized the bloodstained soil from there. The post-mortem examination of the victim's dead body was conducted at about 11. 00 A. M. on November 10, 1974 by the Medical Jurist Dr. Amriksingh. He noticed the following injuries on his dead body :- External 1. Lacerated wound 2" x 1" on right side of his fore-head clotted blood on his borders. Bone deep. 2. Lacerated wound 1" x 1/2" occipital region of scalp-bone deep. 3. Lacerated wound 2" x 1/2" on outer margin posteriorly of right forearm. Muscle deep. 4. Abrasion 1/2" x 1/4" on lower border of elbow joint right side with brown scale. 5. Abrasion 1" x 1/3" on upper border of elbow joint sight side. 6. One bruise 7" x 1" extending from scapular region to lumber region vertically reddish at margins. 7. One bruise 9" x 1" extending from scapular region to right iliac crust obliquely. 8. One bruise 4" x V transversely at lower border of right scapula. 9. One bruise 6" x 1" extending from left scapular region to left lumber region vertically. 10. Multiple bruises over right buttock. 11. One abrasion irregular 1/2" x 1/4" over right knee joint. 12. One abrasion 1/2" x 1/2" over centre of tibia bone. 13. Lacerated wound 1/2" x 1/4" x 1/6" on middle finger of left hand. 14. Lacerated wound 1/4 " x 1/4 " x 1/6 " on ring finger of left hand. 15. Lacerated wound 1" x 1/4" x 1/6" on left fore arm anteriorly. 16. Lacerated wound 1" x 1/4" x 1/8" on left arm on the border. INternal There were fractures of 4th, 5th and 6th ribs of left side and 5th,6th,7th and 8th ribs of right side. The doctor was of the opinion that the probable cause of death was marginal infrathoracic and infra-abdominal haemorrhage due to rupture of liver, spleen, liar of both lungs due to fracture of left side of ribs. The post-mortem examination report issued by him is EX. P. 19. As a result of the inquiry conducted under section 174, Cr. P. C. and in view of the medical opinion about the victim's death, the Station House Officer registered a case under section 302, I. P. C. against the appellants and one Amra Ram. They were arrested and in consequence of the informations furnished by them, lathies and rods were recovered. The blood-stained clothes and the soil were sent to the Chemical Examiner and Serologist. They were all found stained with human blood. On the completion of investigation, the police submitted a challan against the appellants and Amra Ram in the Court of Additional Munsif & Judicial Magistrate, Sri Ganganagar. who, in his turn, committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge, who framed a charge under section 302, I. P. C. against them, to which they pleaded not guilty and demanded the trial. In support of its case, the prosecution examined 17 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating evidence against accused Amra Ram to connect him with the murder. He was consequently acquitted. The prosecution case was taken substantially true against the appellants. They were, therefore, convicted and sentenced as mentioned at the very out-set. We have heard Mr. R. N. Bishnoi learned counsel for the appellant and Mr. S. K. Mathur, learned Public Prosecutor for the State. We have also carefully gone through the record of the case. Dr. Amriksingh, who conducted the post-mortem examination of the victim's dead body, could not be examined by the prosecution as he had left the country and gone abroad. PW 15 Ram Dutt, Compounder, was examined to prove that the post-mortem report EX. P. 19 is in the handwriting of Dr. Amriksingh and bears his signatures. The opinion of Dr. Amriksingh, therefore, could not be challenged as regards the cause of death of the victim. However, it cannot be over-looked that the cause of death shown in EX. P. 19 is the probable cause The prosecution has not examined any other doctor to show whether the injuries mentioned in EX P. 19 are sufficient in the ordinary course of nature to cause death. Any way, it can be gathered from EX. P. 19 that the death of Kanaram was not natural but homicidal. Out of 17 prosecution witnesses, PW 1 Malluram, PW 2 Malluram S/o Chunni Ram, PW 3 Mangla Ram, PW 4 Devilal, PW 5 Jaimalnath, PW 6 Manniram and PW 14 Harbhajansingh are alleged to have seen the incident. Unfortunately, all of them, except PW 14 Harbhajansingh, turned hostile and lent no support to the prosecution. They were examined with the object to established that Kanaram was encircled by the appellants and was beaten with lathies. He was thereafter tied with a tree, He was freed when the Company Commander Charanjitsingh (PW 16) directed the appellants to free him. The only witness who has lent full support to the prosecution case is Platoon Commander Harbhajansingh (PW 14 ). The learned Public Prosecutor has frankly conceded that the fate of the case looms largely on the testimony of PW 14 Harbhajansingh and in case he is found unreliable, there remains scanty evidence on record which is not sufficient to connect the appellants with the murder of Kanaram.
(3.) IT may be mentioned that the appellants were convicted solely on the basis of the testimony of these witnesses Harbhajansingh. It was strenuously contended by Mr. Bishnoi that PW 14 Harbhajansingh has been wrongly accepted and treated as witness of truth by the Additional Sessions Judge His testimony is replete with inconsistencies, contradictions and improbabilities. He claims to have seen the incident but remained silent and came out as a witness of the incident much after on November 13, 1974. His prolonged silence for complete five days is a circumstance which completely destroys his credibility. It was further argued that the FIR EX. D 3 was written in his presence by the Company Commander Charanjitsingh (PW16) and was also presented at the Police Station in his presence. He even then remained silent and did not object that what has been mentioned in EX D 3 is untrue and false. The inquest report and the site plan were prepared in his presence. The site plan bears his signatures as a Motbir and yet he remained silent and did not disclose to the investigating officer that Kanaram was beaten to death by the appellants. It was further argued that Harbhajansingh (PW 14) did not disclose the incident to anybody-even to the Company Commander & observed complete silence. This unnatural conduct of the witness makes his testimony unworthy of belief. The conviction, therefore, could not be maintained on the strength of his sole testimony. It was, on the other hand, contended by the learned Public Prosecutor that even before the incident, which took place on November 8, 1974, the appellants used to harass the victim as is revealed in the testimony of PW 9 Roshan Lal PW 14 Harbhajansingh is a colleague of the appellants. He has no axe to grind against them. It does not appear that he was interested in the deceased-victim. It would be. therefore, not proper to disregard his testimony especially when he has been found a reliable witness by the trial Court. It was argued that we should be slow in disturbing the finding of the trial Court, who has treated and accepted Harbhajansingh as a witness of truth. We have bestowed our thoughtful consideration to the rival submissions. ;