SHARMA, J. - (1.) IN these appeals, the appellants, five in number, have impugned the judgment dated February 14, 2003 of the learned Sessions Judge Bundi whereby the appellants were convicted and sentenced as under:- Santosh Singh, Pratap Singh, Moti Lal, Kishan Lal and Badri Lal: u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/- , in default to further suffer simple imprisonment for six months. u/s. 147 IPC: Each to suffer simple imprisonment for six months and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. u/s. 148 IPC: Each to suffer simple imprisonment for one year and fine of Rs. 1000/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently.
(2.) THE prosecution case is as under:- Mathura Lal (PW. 2) handed over a written report (Ex. P. 4) to SHO Police Station Lakheri District Bundi on January 8, 2001 at 10. 15 PM at District Hospital Lakheri stating therein that on the said day around 6. 00 PM his grand daughter Kavita informed him that his father was beaten up. He then saw that his son Banwari was lying unconscious. On inquiry he came to know that Badri Lal, Kishan Lal, Moti Lal and two Sardars caused injuries to Banwari with sword and lathi. Banwari was immediately removed to hospital. On that report case under Sections 147, 148, 307 and 323/149 IPC and Section 3 SC/st (PA) Act was registered and investigation commenced. During the course of investigation charge sheet was filed. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Bundi. Charges under Sections 147, 148 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 17 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however 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 and learned Public Prosecutor and with their assistance scanned the material on record. We find that prior to his death, the injuries sustained by Banwari were examined vide injury report (Ex. P. 6), which reads as under:- 1. Lacerated wound 3 x 2 xm on skull on parietal region. 2. Lacerated wound 4 x 2 cm about 3 cm below the Ist injury. 3.Lacerated wound 5 x 2 cm about 2 cm below 2 nd injury 4. Haematoma blue in colour on Lt. eye lid with swelling. 5. Contusion 3 x 2 cm on Rt. side of chest. 6. Abrasion 3 x 2 cm on back of Lt. elbow joint. Banwari died on January 24, 2001 i. e. after 16 days of the incident. Dr. D. K. Sharma (PW. 17), Autopsy Surgeon, who drew Post Mortem Report (Ex. P. 10), opined that the cause of death of Banwari was septicemia coma brought about as a result of injuries to brain and skull. Evidence of Ram Prasad (PW. 1), Bhawani Shankar (PW. 3) and Kavita (PW. 4) is the back bone of the case and learned trial Judge founded the conviction of the appellants on the testimony of these witnesses. Ram Prasad (PW. 1), real brother of deceased, in his deposition stated that on the day of incident he and his brother Banwari were sitting on the flour mill of Lachhi Ram Rajendra ji, Banwari then proceeded to meet one Narain Ji. While Banwari was crossing `bad' (boundary made of thrones) of Badri Lal, he (Badri Lal) abused Banwari. After hot exchanges they both scuffled and Badri Lal inflicted lathi blow on the head of Banwari. Ram Pyari, the wife of Badri, also given beating to Banwari Ram Prasad then took Banwari to his house but Banwari came back to the flour mill. Thereafter Pratap Singh and Kanya Bai offered Banwari tea and they took Banwari to the house of Kishan Lal, Kishan Lal, Badri Lal, Ram Pyari, Kanya, Moti Lal and Santosh Singh bolted the house from inside and beat Banwari with lathis. Bhawani Shankar then pushed the door and brought Banwari out. In the cross examination Ram Prasad admitted that he did not accompany injured Banwari to the hospital. He also admitted that he did not inform his father that he and Bhawani Shankar had seen the incident. He further stated that:- ekjihv edku ds vunj gqbz Fkh ckgj ugha dh Fkha ekjihv njoktk yxkus ds ckn vunj dh Fkha edku ds ckgj ls ?kvuk fn[kkbz ugha ns jgh Fkh ysfdu tksj tksj ls vkokt vk jgh Fkha He also stated that police arrived on January 9, 2001 at 1. 30 PM. He admitted that he did not know Pratap Singh and Santosh Singh and Banwari was in the habit of consuming liquor. He further stated that since he fell asleep around 10-11 PM he was not in a position to say as to whether the police came in the village in the night. Mathura Lal (PW. 2) deposed that Kavita did not inform him as to who caused injuries to Banwari Lal since she did not see the incident from her eyes (dfork us eq>>ks ;g ugha crk;k fd cuokjh yky ds fdlus pksv ekjh mlus ekjrs gq, ugha ns[kk) He however deposed that Bhawani Shankar and Ram Prasad informed him that Kishan Lal, Ram Kanya, Moti, Ram Pyari, Badri Lal, Pratap Singh and Santosh Singh gave beating to Banwari. This deposition is contrary to the statement of Ram Prasad who deposed that he and Bhawani Shankar did not inform his father (Mathura Lal) as to who caused injuries to Banwari.
(3.) BHAWANI Shankar (PW. 3) repeated the version narrated by Ram Prasad. He however admitted that:- ;g dguk lgh gs fd mdr njoktk cun gksus ds ckn edku ds vunj D;k gks jgk gs ;g fn[kkbz ugha nsrk gsa He further stated that: efkqjk yky dks esaus ?kvuk ds ckjs esa dqn ugah crk;k] jke izlkn us crk;k Fkka Kavita (PW. 4), aged 12 years, became eye witness at the trial and narrated the incident. Fact situation that emerges from the material on record may be summarized thus:- (i) Mathura Lal (PW. 2), who lodged FIR, did not see occurrence. In his deposition he stated that Ram Prasad (PW. 1) and Bhawani Shankar (PW. 3) informed him that the appellants had given beating to Banwari. (ii) Ram Prasad (PW. 1) on the other hand deposed that he did not inform his father Mathura Lal that he and Bhawani Shankar had seen the incident. (iii) Mathura Lal (PW. 2) deposed that Kavita (PW. 4) did not inform him as to who had caused injuries to Banwari, since Kavita did not herself see the incident. (iv) Kavita (PW. 4) on the other hand became eye witness of the occurrence. (v) Ram Prasad was real brother of Banwari even then he did not care to take Banwari to the hospital. He did not even think to report the matter to the police. After the incident he calmly went to his house and slept. (vi) The place of incident, according to the witnesses, was the house of Kishan Lal, which was bolted from inside at the time of alleged incident. ;