K. S. LODHA, J. - (1.) THE learned Sessions Judge, Churu by his judgment dated 6th October, 1980 has convicted and sentenced the seven appellants as under: - Triloka Ram, Narayan and Naurang each u/s 148 IPC, sentenced to six months' rigorous imprisonment. u/s 302 IPC read with s. 149 IPC sentenced to imprisonment for life and fine of Rs. 500/- and u/s 323 IPC read with s. 149 IPC sentenced to one year's rigorous imprisonment. Jeewan, Kanaram, Gopalram and Nandram each u/s 147 IPC sentenced to six months rigorous imprisonment and u/s 323 IPC read with s. 149 IPC sentenced to one year's rigorous imprisonment under section 302 IPC read with s. 147 IPC sentenced to imprisonment for life and fine of Rs. 500/ -.
(2.) AGGRIEVED of these convictions and sentences appellants have filed the present appeal. In order to appreciate the facts and circumstances of the case the prosecution story may be briefly stated here. In 1975 one Bhagirath, brother of the present appellant Naurang was murdered. The deceased Narayan Ram s/o Hanumanram alongwith Khuman and Sohan were prosecuted for the murder of Bhagirath and were convicted by the learned Sessions Judge, Churu on 30th of November, 1976. They filed an appeal before this Court and during the pendency of the appeal, their sentences were suspended by the order dated 6th July, 1979. Accused Triloka Ram, Naurang and Narain s/o Tulcha Ram had appeared as prosecution witnesses in that case. 3. Tulcha Ram father of the accused Narain had two brothers Deva and Bhoma. Tulcha Ram had another son Kana, Deva had two sons Bhagirath who was murdered in the aforesaid case and the accused Naurang. Bhoma had two sons Nanda and Jeevan. There is another family consisting of two brothers Nathu and Kanwara. Nathu had four sons Bhaniram PW 3, Megha, Bhagwana and Surja. All the three Megha, Bhagwana and Surja are now no more. Megha's wife was Ramkanwari, Bhagirath's wife was Gora and Surja's wife was Dafa. On the death of Megha Ramkanwari came in nata', to Bhani Ram. Accused Triloka is said to have been born to Gora from Bhani Ram and on the death of Bhagwana Gora also came in 'nata' to Bhani Ram. Ramkanwari and Bhani Ram later got displeased with Triloka Ram and their relations are admittedly strained and some litigation has also taken place between Bhani Ram and Triloka Ram. The present incident is alleged to have taken place on 15ih of June, 1979. It is alleged that on the night of 14th June, 1979 deceased Narayan son of Hanuman had engaged the camel cart of PW 3 Bhani Ram in order to carry logs of wood from his field at Chajusar to Churu. The camel cart was loaded in the night and it is alleged that on the morning of 15th of June, 1979 deceased Narain, his wife Smt. Manni PW 2 alongwith Bhani Ram PW 3 left for Churu. They did not take the direct route to Churu but had gone through Potiwala Rasta. When they had gone a little distance from Chajusar, Smt. Manni saw the seven accused armed with Barchi, axe, gandasis and lathis coming towards them. Naurang was armed with a 'barchi', Narain with an axe and Triloka with a 'gandasi'. Rest of them had lathis. On seeing them approaching Manni accosted her husband and feeling danger at their heads, they tried to take shelter by the side of the camel cart. Bhani Ram, who was holding the rope of camel, seeing the danger, left the camel cart and ran away. He is alleged to have stopped a few paces away from where he had seen the accused belabouring Smt. Manni and her husband Narain. According to Smt. Manni Triloka Ram first gave a 'gandasi' blow on her head on account of which she fell down. Then she also received some blows on the back between the scapulas. She also alleges to have seen the accused Narain giving a 'barchi' blow on the head of deceased Narain, Naurang giving an axe blow on the head of the deceased Narain and the other accused giving lathi blows to Narain. She further states that when she tried to grapple with Triloka, he caught her in his arms and on that account Triloka's 'chola' got stained with blood. After giving blows to Manni and Narain accused persons left the place. Manni then got up and saw that her husband had by that time breathed his last. Then Mani de-harnessed the camel from the cart and went to the village where she informed Bhomaram Khinchar Birja, Panch, Megharam and Ramu etc. of this incident where upon these persons came to the spot to see the dead body and keep watch on it. Manni alongwith Rameshwar Jat then went to the Police Station, Ratannagar at a distance of 27 Kms. and there she lodged verbal report which was taken down vide Ex. P/2 at 2. 30 PM. She narrated the whole story as indicated above. The police registered a case u/s 148, 307 and 302 IPC and started investigation SHO Rarnprashad PW 11 after getting the FIR recorded went to the spot He reached there at about 4 PM and after inspecting the dead body of Narayan, he prepared the inquest memo Ex. P/l. He then inspected the site at the instance of Smt. Manni and prepared the site plan Ex. P/6 alongwith the detailed description on its back. He found the pair of shoes of the deceased Narain lying at the spot and recovered the same. He also recovered the blood stained clothes and also the soil vide Ex. P/7. The injuries of Smt. Manni were got medically examined and postmortem examination was got conducted on the dead body of Narain. He arrested all the accused persons on 23rd of June, 1979. On 24th of June, 1979 Shri Ramprashad states to have recovered the blood stained shirt from the person of Naurang and he also got him medically examined as there was an injury on his person. During the course of investigation the SHO recovered the "barchi' from Narayan, axe from Naurang and 'gandasi' from Triloka and lathis from other accused persons in pursuance of the informations said to have been given by them. After completing the investigation the police put up a challan against the accused persons for the aforesaid offences and they were committed to the Court of Sessions. Charges for the offence u/s 148, 302 read with s. 149 and s. 307 read with s. 149 IPC were framed against the accused persons, They pleaded net guilty and claimed to be tried. The prosecution examined 11 witnesses out of them PW 2 Smt. Manni and PW 7 Bhani Ram are the eye-witnesses. PW 4 is Dr. Khem Chand and PW 11 Ramprashad is the investigating officer. Rest of them are formal witnesses, except one Mohan Ram PW 6 to whom Bhani Ram is alleged to have narrated the story after running away from the spot. The accused, when examined u/s 313 Cr. P. C. denied the prosecution story. However, no witness in defence was produced. The learned Sessions Judge mainly relying upon the evidence of Manni and partly on the statement of Bhanni Ram and the recovery of 'barchi', axe and 'gandasi' respectively from the accused Narain, Naurang and Triloka and the presence of blood stains on the shirt of Naurang convicted and sentenced the accused as aforesaid. Appellant Narain has died pending the appeal. His appeal has thus abated.
(3.) WE have heard learned counsel for the remaining appellants and learned Public Prosecutor and have gone through the record. It is contended by the learned counsel for the appellants that the learned Sessions Judge should not have at all relied upon the evidence of Manni. Apart from the fact that she is a highly interested witness, her presence at the spot appears to be doubtful on account of number of circumstances which we shall presently refer to. He also urged that the learned Sessions Judge should not have relied upon the evidence of Bhani Ram even in part as his conduct is wholly unnatural and he is not corroborated by Mohanram. It was also contended by him that the weapons said to have been recovered from the accused persons have not been proved to be stained with human blood, and therefore, they could not be connected with the present crime and the learned Sessions Judge could not have taken the circumstances of the recovery of these weapons into consideration against the accused. He further contended that the recovery of the blood stained shirt of accused Naurang is also not free from doubt and, therefore, this circumstance also could not have been used against him specially when the learned Sessions Judge himself had found that it is not established that the injury found on the person of Naurang was received by him during the course of this incident and has also found that the stains on the shirt of Naurang are not proved to be of human blood. Learned counsel further submitted that the account of the incident given by Smt. Manni and Bhani Ram does not fit in with the medical evidence. He, therefore, urged that the prosecution story should be disbelieved and the accused be acquitted. The learned Public Prosecutor on the other hand has supported the findings of the learned Sessions Judge. We have given our careful consideration to the rival contentions. It may at once be stated that so far as the circumstances of the recovery of the weapons from the accused Narayan, Naurang and Triloka are concerned, we do not agree with the learned Sessions Judge that this circumstance can be used against the accused persons since it has not been proved that these weapons were stained with human blood. We, therefore, do not propose to discuss in detail the evidence regarding the informations given by the accused leading to the recovery of these weapons and the recovery itself. So far as the recovery of the blood stained shirt of Naurang is concerned, we do not propose to place much reliance on this recovery also in as much as although Naurang is said to have been arrested on 23rd March, 1979. There was no mention of the fact of his shirt, which he was wearing at that time, being stained with blood nor that shirt was recovered at the time of the arrest its about strangely enough on the next date i. e. 24th June, 1979 the blood stains are said to have been discovered on the clothes which the accused was alleged to be wearing. We fail to understand how these stains which are alleged to be of blood escaped the notice of the investigating officer when he arrested Naurang on 23. 6. 1979. According to us if the stains were there on the clothes of Naurang at the time of his arrest, they would certainly have attracted the attention of the investigating officer and he would have immediately taken them into possession or atleast, in any case, would have mentioned the fact of the presence of these stains on the clothes of the accused Naurang at the time of his arrest in arrest memo Ex. P/15. But this fact is conspicuously absent in the said arrest memo. Further according to the Serologist report human blood had not been detected on these clothes and the learned Sessions Judge has mainly relied upon the chemical examiner's report that there were stains of blood on the clothes of Naurang. Mere presence of spots of blood unless they are proved to be of human blood cannot give rise to any inference against the accused about his complicity in the offence. Therefore, this circumstance against Naurang, according to us cannot be of any avail to the prosecution. Now we are left with the evidence of the two eye witnesses namely Smt. Manni PW 2 and Bhani Ram PW, 3, and that of Mohan Ram PW 6. ;