SHARMA, J. - (1.) CHALLENGE in these appeals is to the judgment dated November 22, 2002 of the learned Additional Sessions Judge (Fast Track) No. 1 Jhalawar whereby accused Kripal Singh was convicted and sentenced under Sections 302, 394and 324 IPC and co-accused Ramlal, Arjun Singh and Sultan Singh were acquitted of all the charges. Kripal Singh is the appellant in appeal No. 16/2003. Whereas Appeal No. 513/2003 has been filed by the State of Rajasthan.
(2.) IT is the prosecution case that on July 28, 2001 at 9. 15 PM informant Sunil Goyal (P. W. 13) submitted a written report (Ex. P- 1) at Police Station Dug with the averments that on the said day around 6. 30 PM he along with his elder brother Yashwant and Paras Mal had gone on motor cycle RJ- 20 8m-9309 to their agricultural farm situated at village Doodhlai and while they were returning back Kripal Singh, Ramlal, Arjun Singh and Sultan Singh met them near the house of Dhoole Singh. They were armed with axe, lathi, Dharia, sword and Pharsa. They surrounded the motor cycle and exhorted to kill Yashwant Singh. The informant and Paras Mal got down and distanced themselves but Yashwant could not and he was severely beaten up. All the assailants inflicted blows with axe, Dharia, Sword, Pharsa and Lathi on the person of Yashwant. The assailants made attempt to kill the informant and Paras Mal while they were running for their life. They were chased by Kripal Singh who gave a blow with axe on the left shoulder of Paras Mal. On that report case under Sections 302, 323, 394 and 34 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jhalawar. Charges under Sections 302, 394, 394/34, 324 or 324/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Sec. 313 Crpc, the appellant claimed innocence. Three witnesses in support of defence were examined. Learned trial Judge on hearing final submissions, while acquitting co-accused persons, convicted and sentenced the appellant as indicated above. Having given our anxious consideration to the rival submissions and on looking into the record we notice that death of Yashwant Singh was homicidal in nature. A look at Post Mortem Report (Ex. P-33) reveals that following ante mortem injuries were found on the dead body:- 1. Incised wound 4" x 2" x cervical vertebrae deep ocrophagus trachea & CS vertebrae tractmend present on the anterior side of neck at the level of thyroid region. 2. Incised wound 3" x 2" x muscle deep sustained on the right side of base of neck. 3. Incised wound 21/2" x 1" x muscle deep present on the right shoulder. 4. Incised wound 7" x 1" x muscle deep sustained on the front of neck just below the thyroid region. 5. Incised wound 6" x 11/2" x muscle deep sustained just below the ramus of left mandible. 6. Incised wound 3" x 1" x brain deep sustained on the left side of forehead just above the left eye brow, bone cut and brain matter present. 7. Incised wound 4" x 11/2" x brain deep sustained on the left parietal region of the scalp, bone cut and brain matter present. 8. Incised wound 21/2" x 1" x bone deep sustained on the right temporal region of the scalp bone cut & brain matter present. 9. Incised wound 11/2" x 1/2" x brain deep sustained on the upper half of right ear pinna. Mastoid process cut and brain matter present. In the opinion of Dr. Ramesh Chandra Khatik (P. W. 7) the cause of death was shock due to injuries to brain ocrophagas trachea and other neck injuries. We also find that Paras Mal (P. W. 21) vide injury report (Ex. P-34) received one Incised wound of 2" x 1/4" on Lt. shoulder region. The allegation against the appellant was that he inflicted injuries on the person of Yashwant Kumar and Paras Mal (P. W. 1) and then took the Motor Cycle of Yashwant which got recovered in the presence of Jagdish (P. W. 8), Birdhi Chand (P. W. 20) and Hem Raj (P. W. 21 ). Paras Mal who sustained injury during the incident did not support the prosecution case and was declared hostile. Attempt is made to demolish the evidence of Sunil Kumar (P. W. 13) on the ground that his presence at the time of incident was not natural. Had he been there he would also have sustained injuries. It is also contended that Sunil Kumar being real brother of Yashwant was an interested witness and no reliance could be placed on his evidence. Paras Mal (P. W. 1) although did not name assailants, he admitted to have gone to village Doodhlai on Motor cycle with Yashwant. According to him 15-20 persons belaboured them near the pole of Doole Singh and somebody gave a blow on his left shoulder.
(3.) LEARNED counsel for the appellant Kripal Singh while assailing the impugned judgment made following submissions:- (i) The incident occurred in the chowk of village, which was a place in which villagers always remain present, but no independent person was made a witness. The trial Court erred in convicting the appellant on the basis of testimony of Sunil Kumar (P. W. 13), who was not present when the incident occurred. (ii) Shiv Singh (Dw. 2) and Bhagwan Singh (Dw. 1) categorically stated that Sunil Kumar (P. W. 13) was sitting in the shop, when they went to bring Khad and to meet Yashwant and in the meantime Paras came to shop and informed that Yashwant was given beating in village Dudhlai. (iii) Nathu Singh (Dw. 3) ruled out the presence of Sunil Kumar (P. W. 13) at the time when Yashwant came riding on motor cycle and was given beating. If Sunil Kumar (P. W. 13) would have been present at the place of occurrence he could have positively made attempt to rescue his brother and could have sustained injuries. Nathu Singh also ruled out the presence of any one of the accused. (iv) Paras Mal (P. W. 1) did not support the prosecution story and the conviction of appellant is wholly unfounded. (v) FIR (Ex. P-1) was lodged after an inordinate delay of one hour forty five minutes. The incident alleged to have taken place at 7. 30 PM, whereas the report was lodged at 9. 15 PM, which cast doubt on the veracity of prosecution version and conviction of appellant is wholly illegal. (vi) LEARNED Lower Court has wrongly taken the motor cycle to have been recovered from the appellant, solely on the basis of testimony of Jagdish (P. W. 8), Birdhichand (P. W. 20) and Hemraj (P. W. 21 ). No independent witness was associated when the motor cycle was recovered vide memo Ex. P-51. (vii) It has not been proved that human blood was found on the Kulhari, motor cycle and Dhoti of appellant and the same resembled the blood group of the deceased. (viii) No independent witness was associated at the time of alleged recovery of Kulhari at the instance of appellant. (ix) LEARNED lower Court has acquitted other accused persons, whereas on the same piece of evidence the appellant has been convicted. We have closely scrutinised the testimony of Sunil Kumar. Although there are contradictions and embellishments in the evidence, we find it consistent and trustworthy qua appellant Kripal Singh. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance, if any, is not of any consequence. Eye witnesses account would require a careful independent assessment and evaluation for its credibility. The evidence must be tested for its inherent consistency and inherent probability of the story. The evidence of relative witness is not liable to be rejected on the ground that he is interested witness. In Krishna Ram vs. State of Rajasthan (AIR 1993 SC 1386) the Hon'ble Supreme Court held as under:- (Para 4) "we have gone through the evidence of the eye witnesses. No doubt Pws 1,2,3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even Ex. P- 1 all the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As noted already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between PW. 6 and the deceased, latter was tied. Immediately after registering the crime, the SHO went to the house of A-1 and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye-witnesses consistently to this effect. Both the Courts below have given cogent and convincing reasons for accepting the evidence of the eye witnesses. The evidence adduced in defence is not at all material and the Courts below have rightly rejected the same. The trial Court acquitted Keshra Ram A-6 giving the benefit of doubt. In our view the same in any manner does not affect the evidence of eye witnesses who are the most natural witnesses. We see absolutely no merits in these appeals. The appeals are dismissed accordingly. " ;