- (1.) THE prosecution case, as disclosed at the trial, is that the appellants, namely, Banwari, Amar Singh, Dharam Pal, Ishwar Singh, Mahi-pal, Matu Ram, Rani Karan, Sri Chand and Roop Chand and the injured PW 5. Shivprasad and PW 6 Mansingh as also the deceased Ratansingh were the inhabitants of village Bas-Sukhram. THEre was no love lost between Ghadsiram and the injured. Cases and counter cases were instituted between the parties. It is alleged that a few days prior to the occurrence, the police, at the instance of deceased Ratan Singh and PW 2 Gopi Ram, brother of injured Mansingh, seized a cart load of gram, belonging to Amar Singh and his father. On the fatefull day viz. , on June 24, 1973 at about 8 or 9 am. , Shivprasad and Mansingh left their village for Loharu side to perform the Tika ceremony of Gopirams daughter. THEy had with them a sum of Rs. 6,000/. When they reached the held of Nahar Singh in the Kankar of Pilod and Dobda, they saw accused Sri-chand, Ramkaran, Roopchand, Amarsingh, Dharampal Banwari, Ishwarsingh, Maturam and Mahipal suddenly appearing on the scene of the occurrence. Ail of them were armed with deadly weapons. THEy encircled PW 5 Shivprasad and PW 6 Mansingh and belaboured them, Initially Srichand struck a blow on Shivprasad |and then Dharampal repeated it Both the blows were struck while he was on the camel's back, as a result whereof he fell down Srichand and Banwari snatched his bag, containing currency notes. Dharampal and Ishwar Singh took out Rs. 1050/- from the pocket of Shivprasad. Mansingh dismounted from the camel's back and rushed to rescue Shivprasad. Dharampal and Ishwar Singh gave two lathi blows on Mansingh's head, while Banwari and Srichand gave blows on his legs All the accused conjointly inflicted blows on him and on Shivprasad. As a result of this violent attack both Shivprasad and Mansingh sustained multiple injuries THEreafter, the accused took to their heels towards the direction where from they had come. It is alleged that the same assailants after some time met in the 'kankar' of Dobda Ratansingh (since deceased) and PW 1 Jiwansingh, when they were going to lodge a report with the Police Station about the beating administered to PW 5 Shivprasad and PW 6 Mansingh. Seeing them at a distance Ratansingh having suspected foul play asked Jawan-Singh to drive back the camel immediately. THEy were, however, surrounded by the accused. Both Jiwansingh and Ratansingh jumped down from the camel and ranaway towards off the impending danger. Ratansingh could not escape and was beaten to death by the accused appellants. It is alleged that Banwari struck a Barchhi blow on the temple of Ratansingh. Matu struck a Barchhi blow on his right hand. THE other accused also thrashed him unmercifully Jiwan Singh was seeing the whole occurrence from a little distance. On seeing him Matu and Banwari chased him. One Hari Narain Jat is another eye witness to the crime.
(2.) FIRST Information Report, Ex. P/l, regarding the beating administered to Mansingh and Shivprasad, was lodged by PW 2 Gopiram with the Police Station, Surajgarh, on June 24, 1973 On receipt of this report case No, 57 was registered under Saction 307, I. P. C. against all the accused-appellants. PW 11 Rameshchandra, S. H. O. accompanied by Gopiram, came to the scene of the incident, where he saw Mansingh and Shivprasad lying injured. He prepared a site plan, Ex. P/24 Ha seized two lathis stained with blood from the place of the occurrence; vide seizure memo Ex, P/8, Soon after he also came to know that Ratansingh was murdered by the very culprits who had assaulted Mansingh and Shivprasad and that his dead body was lying near the well of Tarachand. On receipt of that information he went at the site where the dead body of Ratan Singh was lying. An inquest repot Ex. P/4 was prepared Blood stained earth was seized and sealed. One shirt and a 'baniyan' stained with blood were also seized from the corpse of Ratansingh. A lathi and a towel found on the scen were also taken into possess on by the police Site Plan, Ex. P/2, was prepared. Autopsy of the dead body of Ratansingh was con ducted by PW 4, Dr. S. C. Gupta The postmortem report is Ex. P/3. Injured Shivprasad and Mansingh were clinically examined by PW 10 Dr. H. K. Gupta. Their injury reports are Ex P/9 and Ex. P/16 respectively. The police, after usual investigation, submitted a challan against nine accused appellants to the Court of Munsif Magistrate, Chirawa, under Sections 147, 148, 307, 307/149,302 and 302/149 I. P. C. Learned Magistrate committed all the accused to the Court of Sessions Judge Jhunjhunu for trial. The accused pleaded not guilty to the charges. The prosecution examined 12 witnessess in support of their case. All the accused denied their complicity in the crime and pleaded that they have been falsely implicated on account of enmity. PW 12 Girdhari was in litigation with them. PW 1 Jiwansingh, PW 3 Harnarain and PW 8 Rugnath were indebted to PW 5 Shivprasad Accused Dharampal and Roopchand pleaded that injured Mansingh PW 6, Gopiram PW 2 and Ratansingh (since deceased) were smugglers and were sending illegally gram to Loharu. They had lodged a report with the Police Outpost, Peepli, in that connection. They did not examine any witness in their defence. They, however, got produced report Ex. D/7 in support of their plea of not guilty. Out of the 12 witnesses, examined by the prosecution, PW 5 Shivprased and PW 6 Mansingh were the injured persons and were the victims of violence at the 'kankar' of Pilod and Bhauthade PW 8 Rugnath and PW 12 Girdhari are eye-wintesses relating the assault made on Mansingh and Shivprasad PW 1 Jiwansingh, son of PW9 Bachansingh, was examined to uncover conspiracy hatched by accused Banwari and Mahipal prior to the incident. He is also an eye-witness of the murder of Ratansingh. PW. 2 Gopiram is the brother of PW6 Mansingh injured and author of the first information report, Ex. P/l. PW 3 Har Narain is another eye-witness of the murder of Ratansingh. PW 4 Dr. S. G. Gupta proves the injuries sustained by Ratansingh deceased. PW 7 Nagarmal is an attesting witness of the site-plan PW 9 Bachansingh is the father of PW 1 Jiwansingh. He states that soon after the slaughter of Ratansingh his son came to him and informed him that sons of Ghadsi, Bujan and Jalu had committed the crime PW 10 Dr. H. K. Gupta proves the injuries sustained by PW 5 Shivprasad and PW 6 Mansingh. PW 11 Rameshchandra is a formal witness who investigated the case. Learned Sessions Judge, after scanning closely the whole evidence on record in the light of arguments advanced by counsel for both the parties, held that of the two eye-witnesses examined in connection with the murder of Ratan-Singh, Jiwansingh PW 1 was dependable, but no reliance could be placed on the statement of PW 3 Har Narain. As for the injuries sustained by Shivprasad and Mansingh, the court held that both PW 8 Rugnath and PW 12 Girdhari were not worthy of credence and that their statements could not be used to corroborate the depositions of the two injured persons. Placing its trust in the statements of PW 1 Jiwansingh, PW 5 Shivprasad, PW 6 Mansingh, coupled with the medical evidence, learned Judge found all the nine accused guilty under various indictments and sentenced them as under:- **** TABLE **** 1. Banwari 2. Matu u/s 302 I. P. C. u/s 148 I. P. C. u/s 325 149 IPc u/s 148 I. P. C. u/s 324 I. P. C u/s 325/149 IPc Imprisonment for life, 2 years' R. I. 2 years' R. I. and a fine of Rs. 50/ -. 2 years' R. I. 2 years' R. I. 2 years' R. I. and a fine of Rs. 50/ -. u/s 147 I. P. C u/s 325/149 IPc 3. Ishar Singh, )4. Ramkaran, )5. Dharampal, )6. Amar Singh )7. Mahipal, ) 8 Srichand, ) 9. Roopchand, ) 1 years' R. I. each, 2 years' R. I. and a fine of Rs. 50/- each. Substantive sentences of imprisonment, awarded to each accused-appellant under different counts, were directed to run concurrently. He, however, held that looking to the nature of the injuries and the parts of the bodies, where they were inflicted, it could not be concluded that the assailants had inflicted the injuries with the intention of committing the murder of Mansingh and Shviprasad. On this finding he acquitted all the accused of the charge punishable under Section 307/149 I. P. C However, as already stated above, he convicted and sentenced all the accused for the rest of the charges. Aggrieved by the above verdict the convicted accused-appellants have challenged their conviction and sentences by filing D. B. Criminal Appeal No. 67 of 1975 and the State Government has come up in appeal against the acquittal of the accused by filing D. B. Criminal Appeal No, 686 of 1975. As both the appeals emerge out of the same judgment, they are being disposed of together. In the course of the arguments Mr. Khan, learned Public Prosecutor appearing on behalf of the State stated that by D. B. Criminal Appeal No. 686 of 1975 the State Government has challenged the acquittal of the accused both under Sections 307/i49 I. P. C. and 302 read with Section 149 I. P. C. Notice was given to learned counsel appearing on behalf of the accused to address the Court as to why the acquittal of the accused appellants under Sections 307/149 and 302/149 I. P. C. be not said aside. Learned counsel appearing on behalf of the accused-appellants, Mr. Frank Anthony, urged that there are certain outstanding features of this case, which, according to him, are sufficient to throw doubt on the entire prosecution case. It has been argued that the prosecution witnesses were examined by the police after considerable delay and no cogent explanation has been given for that. The witnesses are also guilty of suppression of material facts. The entire prosecution case is sought to be proved by partisan and inimical witnesses. PW 1 Jiwansingh is an omnipresent witness, who has been introduced at a later stage of the case. The injuries on the person of PW 6 Mansingh and PW 5 Shivprasad simply suggest that they were present on the scene of the occurrence, but that does not necessarily lead to the conclusion that they have given a truthful version of the event. Independent witnesses, shown in the calendar of witnesses filed by the police alongwith the challan as eye witnesses, have not been examined. The prosecution has failed to prove its case beyond reasonable doubt. A major part of the prosecution story disclosed by the witnesses is untrue. The prosecution can succeed only by substantially proving the very story as alleged in F. I. R. It cannot take advantage of the weakness of the defence. The trial Court has failed to notice the above circumstances, which throw considerable doubt on the prosecution case against the appellant
(3.) THE learned Public Prosecutor, Mr. M I Khan, appearing on behalf of the State urged that the prosecution has been able to bring home the guilt to the accused by cogent and reliable evidence. Learned Sessions Judge erred In not placing reliance on the statements of PW 8 Rugnath, PW 12 Girdhari and PW 3 Har Narain. He then argued that all the accused were members of the unlawful assembly, its common object being to commit the murder of Shivprasad, Mansingh and Ratansingh and in furtherance of such an object all the three persons had been assaulted. THE injuries sustained by PW 5 Shivprasad are of serious nature and, therefore, inference could be drawn that the accused intended to cause his death or while inflicting injuries knew that the injuries which they were intentionally causing were likely to cause death. THE acquittal of all the accused under Section 307/149 I. P. C. is based on ignoring the material evidence and as such it deserves to be set aside. He prayed for acceptance of the State appeal, awarding of appropriate sentence to each of the accused-appellants. Now the post mortem report Es. P/3 and the statement of Dr. S. C. Gupta PW 4 clearly show that Ratansingh had sustained ante-mortem injuries, he died as a result of laceration of brain and multiple fractures of skull bones, corresponding to external injury No. 1. It is also not in dispute that Ratansingh (since deceased) sustained injuries on the date, time and place alleged by the prosecution. . As the distance between the place where Mansingh and Shivprasad had been belaboured and Ratansingh had been murdered is about one mile and a half and there was a time-leg of nearly two hours and a half, we propose to deal with the murder of Ratansingh and assault on Shivprasad and Mansingh separately ;