SHARMA, J. - (1.) BABU, Pooran, Radhey @ Radhey Shyam and Narsi @ Narsi Ram, the appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) Hindaun City, who vide judgment dated November 22, 2002 convicted and sentenced them as under:- u/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. u/s. 323/34 IPC: Each to suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on February 21, 2001 informant Mahendra Singh submitted a written report (Ex. P. 3) at Police Station Todabhim stating therein that on the said day around 11 AM while Prahlad was coming with some food articles from Ajeej Salimpur he was way-led near Tube-well by Radhey, Narsi, Ramavtar, Babu and Pooran, who were armed with lathis and Dharias. Radhey, Narsi and Babu inflicted lathi blows on the head of Prahlad, as a result of which he fell down. Ramavtar, Pooran, Sabooti and Kapoor also caused injuries on the person of Prahlad. Prahlad was removed to the hospital where he was declared dead. On that report a case under Sections 147, 148, 149, 323, 341 and 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded and after completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City. Charges under sections 323/34 and 302/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 14 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence and stated that since they have lodged cross case, therefore they have been implicated falsely. One witness in support of their defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard learned counsel for the appellants, learned counsel for the complainant and learned Public Prosecutor and with their assistance scanned the material record. Death of Prahlad was undeniably homicidal in nature. As per Post Mortem Report (Ex. P. 8) following ante mortem injuries were found on the dead body:- 1. Diffuse swelling of 15 cm x 5 cm on right parietal occipital region of head. This swelling extend upto mid parietal region in this swelling also seen depression in right parietal region size of depressed area is 4 x 3 cm two lacerated wound present. The size of wound as follows: (a) Lacerated wound of 4 cm x 1 cm x bone deep on parietal region new mid line of head on examination of head bleeding is positive. (b) Lacerated wound of 3. 5 cm x 1. 5 cm x bone deep on right parietal region 5 cm lateral to wound A. On dissection of the skull shows fracture-multiple fracture of right parietal bone size fracture bone is 4 cm x 2. 5 cm fragments of the clotted blood present on brain matter. 2. Red black bruise present all over the right eye bow & eye lid & adjoining part of forehead. 3. Diffuse present all over the left eye brow, eye lid adjoining part of forehead. 4. Abrasion of 2 cm x 1 cm on left shoulder joint region. 5. Swelling of 6 cm x 3 cm present on abdomen both side to mid line below the umblicus on dissection no hematoma present below that injury. In the opinion of Dr. Ram Lal Meena (PW. 9) the cause of death was head injury leading to fracture. We have also noticed the injuries sustained by Smt. Saroopi (PW. 7), Vijendra Singh (PW. 10) as well as the injuries received by the appellants Babu Lal, Pooran, Narsi, Radhey Shyam, Shri Kishan and Dropati. Details of injuries are as under:- Smt. Saroopi (PW. 7) vide injury report (Ex. P. 9) received following injuries:- 1. Deep abrasion of 1. 5 cm x. 5 cm on wrist joint right forearm. 2. Swelling of 5 cm x 3 cm on left forearm. Vijendra Singh (PW. 10) vide injury report (Ex. P. 10) received following injuries:- 1. Brownish red bruise with swelling of 12 cm x 4 cm on left arm lower 2/3 part antromedial aspect tenderness 2. A branded bruise of 7 cm x 2. 5 cm on right forearm lower part. Appellant Babu Lal vide injury report (Ex. D-7a) received following injuries:- 1. Bruise 4 cm x 3 cm on middle of dorsum aspect of Rt. forearm. 2. Bruise with tenderness 5 cm x 4 cm in size on Rt. scapula Appellant Pooran vide injury report (Ex. D. 8) received following injuries:- 1. Bruise with tenderness 5 cm x 3 cm middle of lt. forearm 2. Bruise with tenderness 5 cm x 4 cm on dorsum of Lt. hand at Metacorpal joint. 3. Bruise 4 cm x 2 1/2 cm on lat. aspect of Lt. upper arm. 4. Bruise with tenderness 5 cm x 4 cm on Lt. shoulder joint. Appellant Narsi vide injury report (Ex. D. 9a) received one abrasion of 6 cm x 4 cm on front Rt. upper chest. Appellant Radhey Shyam vide injury report (Ex. D. 10a) received following injuries:- 1. Bruise with tenderness 4 cm x 3 cm on thumb of Lt. hand at Metacorpal joint. 2. Bruise with tenderness 5 cm x 4 cm on Rt. shoulder 3. Bruise with swelling 3 cm x 2 cm on Rt. side of occipital protuberaine. 4. Bruise with swelling 3 1/2 x 2 cm on middle of Rt. pareital prominium. Shri Kishan vide injury report (Ex. D. 11a) received following injuries:- 1. Incised wound with clotted blood 5 cm x 1 cm x 3/4 cm on parietal occipital region of scalp at the middle 2. Incised wound with clotted blood 2 1/2 cm x 1/2 cm x skin deep transversaly at middle of forehead. Dropati vide injury report (Ex. D. 12a) received following injuries:- 1. Incised wound with bleeding 4 cm x 1 cm x bony deep vertically on forntal parietal region of scalp at middle. 2. Bruise with tenderness 5 cm x 3 1/2 cm on Rt. shoulder. Injured Saroopi (PW. 7) in her deposition stated that on the fateful day on hearing hue and cry when she reached to the place of incident she saw her husband surrounded by Radhey, Narsi, Babu, Pooran, Ramotar, Sabuti and Kapur. Radhey, Narsi and Babu and other accused inflicted injuries on the person of her husband as a result of which he fell down. He was removed to the hospital where he died, Testimony of Saroopi gets corroboration from the evidence of Vijendra Singh (PW. 10 ).
(3.) IN support of the defence version the appellants examined Dr. Hari Singh Bhandari (DW. 1) who had seen the injuries of Babu Lal, Pooran, Narsi, Radhey Shyam, Shri Kishan and Dropati and drew injury reports Ex. D. 7a, Ex. D-8a, Ex. D. 9a, Ex. D. 10a, Ex. D. 11a and Ex. D. 12a. A perusal of Ex. D. 5 shows that cross case was registered on the report of Shri Kishan against Prahlad, Bheemraj, Abhay, Mahendra, Dan Singh, Vijendra, Keshav, Saroopi, Jal Singh, Piro and Battu who were the members of complainant party. Fact situation emerges from the material on record may be summarized as under:- (i) There was a dispute regarding between the appellants and the complainant party regarding the path way. (ii) Something which has not been completely unravelled might have sparked off the incident. (iii) On the date of incident a fight ensued and the deceased died in the course of sudden and free fight. (iv) The deceased's party was also armed with weapons. (v) Cross cases were registered between the parties. Having closely scrutinised the testimony of prosecution witnesses we notice that complainant party and accused party had a dispute in regard to path way and both the parties freely fought all of a sudden and accused appellants suffered injuries on vital parts of the body, but the prosecution failed to give any explanation of such injuries. This fact situation gives rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and thus not presented the true version. ;