C. HONNIAH, C. J. - (1.) TWELVE persons were charged with having committed offences punishable under secs 120-B, 147, 148, 302 read with secs, 149 and 307 read with sec. 149 of he Indian Penal Code in the Court of Additional Sessions Judge No. 2, Jaipur City. The learned Judge, by his judgment dated December 23, 1975 acquitted Yogi alias Yogendra, Gopal Prasad, Narendra Singh, Balvir Singh, Rishal Singh, Gopi Singh, Tejveer Singh, Nohpal Singh of all the charges with which they were charged, but convicted Chandrabhan, Brijender Singh, Gordhan Singh and Bachhu Singh under sec. 302 read with sec. 149, sec. 148 and sec. 323 read with sec. 149, Indian Penal Code, and sentenced them to various terms of imprisonments, the maximum sentence being imprisonment for life.
(2.) AGGRIEVED by this decision, Chandra Bhan has preferred D. B. Criminal Appeal No. 121 of 1976, Brijender Singh and Gordhan Singh have preferred D. B. Criminal Appeal No. 140 of 1976 and Bachhu Singh has preferred D. B. Criminal Appeal No. 141 of 1976 As all these three appeals arise out of the same judgment, we dispose of them by this common judgment. On October 25, 1974, Laxman Prasad (P. W. 3) and his brother Brijesh, who was a student of Medical College at Jaipur, left their village Sinsini in the district of Bharatpur at about 12 00 noon on a scooter to go to Bharatpur. When they covered some distance, some trouble developed in the scooter. They attended to it and then came to village Sainth where they got the scooter repaired in a cycle shop. Then they left that village and proceeded some distance towards Kumher, which is on the way to Bharatpur. After going for some distance again, some trouble developed in the scooter. Both the brothers were not able to repair it and therefore they proceeded towards Kumher pushing the scooter Two boys aged between 8 to 14 years, came from village Sainth from behind them on cycles. One of them, who was known to Laxman Prasad (PW 3) asked him when Brijesh would be going to Jaipur, he told them that he would be going the next day One of the boys went towards Kumher on the bicycle Leaving the other boy there Laxman Prasad and Brijesh pro-ceeded towards Kumher pushing the scooter and when they came to a place one Kilometre away from Kumher, if is said that some persons, who were hiding there, attacked both the brothers with hockey sticks, knives and lathis' and inflicted injuries on them and ran away. Shortly thereafter, Hotilal (PW. 6), came there driving a bus on the way to Bharatpur. He found Laxman Prasad and Brijesh lying badly injured. He put them into his bus and came to Kumher where he stopped for some. The persons, who were in the bus and others, told Laxman Prasad to report the matter in the police station nearby and also got treatment from the hospital situated there. However, Laxman Prasad did not agree with the suggestion as he wanted medical treatment by an expert, for himself and his brother, and, therefore, he along with his brother came in the bus to Bharatpur at about 2 pm. These two injured persons were taken to the hospital and were admitted at about 2. 20 pm. and at 2 40 pm. Brijesh died. In the meanwhile, Dr. K. L. Sharma (P. W. 33) sent information (Ex. P. 26) to the Police Station (Kotwali) at Bharatpur town, intimating that two persons Laxman Prasad and Brijesh had been admitted to hospital with multiple injuries. That information (Ex. P/26) was received in the police station by a constable, Incharge of that police station, who made a record of that in the police diary. There is no evidence in this case whether that person went to the hospital to verify the information that he had received. Some time later, after the death of Brijesh at about 2. 40 p. m, Dr. K. L. Sharma (PW 33) sent another intimation (Ex P/27) to the same police station intimating that Brijesh had died. Thereafter, one Ramanlal, Head Constable (not examined), who was incharge of the police station, on the receipt of the report of the death of Brijesh, registered a case under sec. 174, Code of Criminal Procedure, and went to the hospital, held inquest proceedings over the dead body of Brijesh between 4 p. m. , and 5 pm. Some time later, an Additional District Magistrate (not examined) came to the hospital and recorded the statement of Laxman Prasad at about 7. 35 p. m. It is Ex P/6. Shri Ghanshyam Datta (P. W. 37), at that relevant point of time, was the Sub-Inspector of Police, Kumher. It appears that on that day he had come to Bharatpur in connection with an investigation of a rape case. At about 8 pm. or so, he came to know about the incident, which had happened near-about his police station. He went to Kotwali (Police Station), where one Ram Singh, Assistant Sub-Inspector of Police, who has not been examined in this case, handed over Ex. P/6 along with the first information report, which contained no crime number (Ex. P/37) and the inquest report (Ex. P/38 ). He came to know that the dead body of Brijesh by then, had been handed over to his relatives. He went to the hospital and found Laxman Prasad, in a ward of the hospital, sleeping. He recorded the statement of one Nathu Singh, who was in the ward: He left the hospital and went to the police station, Kumher. After reaching the police station, he prepared first information report (Ex. P/39 ). This witness Ghanshyam Datta (PW 37) has not stated that he registered the case and sent the first information report to any court. There is also no evidence forthcoming to show whether the case was registered under Sec. 174, Code of Criminal Procedure, at Kotwali (Police Station), Bharatpur or any first information report was sent to the Court. On the morning of October 26, 1974, Ghanshyam Datta (P. W. 37) went to the place of incident, which was hardly less than a kilometre from the police station, and receivered some hockey sticks and a broken 'lathi' from the spot. He found shoe prints of three persons and took the mould of those prints. He examined some witnesses and thereafter investigation was taken up by Shri Krishan Gopal Gupta (PW. 39), Circle Inspector of Police, Badi. He arrested accused persons in various dates. On an information given by Chandra Bhan, a knife (Art. 1) was recovered from near about the scene of the occurrence. On the information given by Gordhan Singh, a club was recovered, and hockey stick was recovered at the instance of Bachhu Singh. The articles were sent to the Chemical Examiner. The Serologist's report shows that they were stained with human blood.
(3.) THE case of the prosecution was that there were two parties amongst the students of the Medical College at Jaipur : one group headed by Brijesh and the other by Vijai Punia and Chandra Bhan. One year prior to October 1974, it appears that Brijesh and his supporters had assaulted Vijai Punia, in regard to which a case had been filed against Brijesh and some others under sec. 307, Indian Penal Code, and that case was pending at the time of the incident in question Because of this incident and the enmity that existed between the two groups, according to the prosecution, Chandra Bhan, Brijendra Singh, Gordhan Singh, Bachhu Singh and the other accused persons, conspired to murder Brijesh and in pursuance to that conspiracy, all these persons attacked Brijesh and his brother Laxman Prasad, when they were proceeding to Bharatpur near Kumher and inflicted injuries, as a result of which Brijesh died later. So far as motive is concerned, reliance has been Placed on the evidence of Dr. B. C. Sanghar (P. W. 35), who was a professor in the Medical College at that time, His evidence discloses that there were rivalries between the two groups. Whether this was sufficient motive, for the appellants and the rest of the accused persons, has got to be judged if there is sufficient evidence to implicate any one of these persons in the crime. In a case where the prosecution substantially relies upon the direct evidence, whether the prosecution proves motive or not, the prosecution must succeed on the direct evidence and if that direct evidence fails, even if the prosecution has established motive, that will not be sufficient to base a conviction. The whole case of the prosecution rests on the sole testimony of Laxman Prasad (P. W. 3 ). According to him, the present appellants along with the other accused attacked him and his brother Brijesh when they were going towards Kumher pushing the scooter. Shortly thereafter, Hotilal (PW. 6), the bus driver, came there and he picked up these two injured persons and came to Kumher. Even according to Laxman Prasad, persons who were in the bus and who came near the bus, hearing the news of the incident, told him to go to the nearby hospital for treatment and also to lodge a complaint to the nearby police station. Laxman Paasad declined to do so, and the explanation that he has given at the time of the trial is that he was very much concerned about his brother who was seriously injured and therefore he wanted to take him to Bharatpur to get best: medical help not only for him but to also for himself. The evidence in this case shows that the bus took about 20 to 25 minutes to reach Bharatpur. During this period, Laxman Prasad never said to any one in the bus or to Hotilal (PW, 6), who assaulted him and his brother Brijesh When they came to the bus-station at Bharatpur, according to the version of Laxman Prasad, Hotilal (PW. 6) left them at the bus station. Laxman Prasad requested Vikki Ram (P. W 15) who travelled with him in the bus to fetch Attar Singh (PW. 1), who was having his shop near the bus stand, and a 'tonga' for them. Accordingly, Vikki Ram brought Attar Singh, who secured a 'tonga' and took the injured persons to the hospital Even during this time, Laxman Prasad did not disclose the names of his assailants as well as the assailants of his brother. The evidence in this case shows that both the injured were admitted to the hospital at 2. 00 pm and Dr. K. L. Sharma (P. W. 33) attended on them, even then Laxman Prasad did not disclose the names of the assailants. However, the prosecution has strongly relied on the evidence of Attar Singh (P. W. 1), who has stated that before Brijesh was admitted to the hospital, he was carrying him on his back as his condition was very serious and was moving! about in the hospital for about an hour as there were no doctors or any one else to attend upon she injured and hat during that period, according to him, Brijesh made a dying declaration implicating Chandrabhan, Gordhan Singh, Cheema, one Ramchander (absconding), Tejveer Singh (acquitted), Nohpal Singh (acquitted) & others, as the assailants. If really Brijesh was in a position to make a statement and did make a statement as claimed by him, in the normal course, he would have given this information to the persons that were present nearby and even if he did not do so, he would have been the first person to give this information to the police officers, who went to the hospital. But his evidence does not, at any rate, show that he passed on this information to any person more so, to the police. On this score alone, his evidence has got to be rejected. But there is very significant circumstance available in this case which shows that Attar Singh (P. W. 1) was never in the picture at all on that day, at any rate, till late in the night. Hotilal (PW. 6) is a disinterested witness. He was so good that he picked up these two injured persons, in his bus, who were lying on the road, and brought them to Bharatpur. He has given evidence in court that he did take them to the hospital and left them there. He has been treated hostile by the prosecution on the ground that during the course of investigation, he had stated that he left the two injured persons at the bus stand. We have examined his evidence very closely and are of the opinion that among the witnesses produced by prosecution, it appears to us that he is the only truthful witness. He picked up these injured persons lying on the road in his bus and took them to Bharatpur. He would not have left them on the bus station, when their condition was serious. This witness has stated in court that he did take them to the hospital and that statement, in our opinion, is a true version. This, view of ours, is supported from the evidence of Laxman Prasad himself, and the statement made by him in Ex. P/6. Ex P/6, according to the prosecution, is the earliest document which came into being and even in that statement Laxman Prasad did not state that he and his brother Brijesh were brought to the hospital by Attar Singh (P. W. 1) in a 'tonga'. Therefore, the learned Sessions Judge misdirected in discarding the evidence of Hotilal (PW. 6 ). In this context, we would like to quote the observations made by the learned Sessions Judge : "the witness hesitated in replying for a while, threw a glance at Shri Satyadev Cheema, who had started feeling restless and then shamelessly told a bare faced lie denying not only the fact that his entering the court with Shri Satyadev but refusing to identify him also by saying that he does not know Shri Satyadev Cheema; such a rankler who has no regard for truth can hardly be relief and depended on. " ;