JASRAJ CHOPRA, J. - (1.) THIS appeal has been filed against the Judgment of the learned Addl. Sessions Judge, Barmer dated 28. 4. 1988 whereby the learned Additional Sessions Judge has held the accused-appellant Bhojrajsingh guilty of the offences under Ss. 304 Part II, I. P. C. and s. 447 I. P. C. and has sentenced him to 10 years rigorous imprisonment and to pay a fine of Rs. 10,000/- and in default to undergo 2 years rigorous imprisonment on the first count and to one month's rigorous imprisonment together with a fine of Rs. 1000/- and in default to undergo 15 days rigorous imprisonment on the second count. It was further ordered that in case, the fine is recovered, its 75% of the amount will be given to the wife and children of deceased Vasudeo.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are: that PW 18 Chananmal, who is the real maternal uncle of deceased Vasudeo lodged a written report to S. H. O. Police Station, Girab on 17 8 1987, which has been marked Ex. p. 21 stating therein that his nephew (sister's son) Vasudeo was sent by him to his field in village Bandhra for supervision He was assisted by PW. 8 Sahabdan Singh, a child aged about 10 years. It is alleged that Sahabdansingh came and informed him that two persons came to the field and they inflicted injuries to Vasudeo with an axe and lathi, by which, Vasudeo fell down and became unconscious. THEreafter, the accused-persons ran away from the field. It is further alleged that Sahabdan Singh further informed him that he could not identify these persons. On this, Chananmal accompanied by Kukamsingh, Chamar Singh, Jabarsingh, Chaturbhuj and Padamchand went to the field and found Vasudeo lying injured and unconscious. THEy also saw the foot prints of two persons and on scrutiny, it was found that foot-prints of two persons were going towards village Kundal. THEreafter, they put Vasudeo on a Charpai and brought him to village Jandhra. Later, they brought him to village Girab in a bus. According to Chananram, there were three big wounds on the head of Vasudeo inflicted by axe and lathies and some other injuries were also present on the person of Vasudeo. On this report, a case under s. 307 I. P. C. was registered. THE formal FIR was drawn. THE site was inspected. Five foot prints were detacted and protected when they were seen with the help of foot-print experts. Accused Bhojrajsingh was arrested and a lathi was recovered from him but it was not found to be blood stained. Vasudeo was sent for medical examination, vide memo Ex. P. 13, which shows that he has received 6 injuries on his person. Vasudeo died on 18. 8. 1987 at about 9. 15 A. M. and so, his postmortem examination was got conducted. His postmortem examination report Ex. P. 20 shows that Vasudeo had only one leacrated wound over his scalp on the left side and as per the opinion of the Doctor, the cause of death was head injury and intracranial bleedings. THE S. H. O. prepared the site plan and Panchnama Lash and found three injuries on the head and one injury on the left temperal region. THE Inquest memo was prepared and it was found that three injuries were existing on the head and one was existing on the left temporal region. THE moulds of the foot-prints were not taken and they were not sent for any expert's opinion. THE lathi recovered was not found blood stained. THE accused Bhojrajsingh who was arrested was got identified in an identification parade by witness Sahabdansingh vide Identification memo Ex. P. 18, which has been proved by the concerned Judicial Magistrate. After usual investigation, the case against the accused-appellant Bhojrajsingh was challaned in the court of learned Judicial Magistrate, Banner, from where, it was committed to the court of Additional Sessions Judge, Barmer for trial. During investigation, it. was found that the occurrence has been witnessed not only by P. W. 8 Sahabdansingh but also by P. W. 9 Bhanwarsingh, P. W. 10 Nimosingh, P. W. 11 Gopalsingh and P. W. 13 Bheemsmgh, who all were examined during trial. . P. W. 12 Gopalsingh, the Investigating Officer has also been examined and he has stated that he went for the arrest of the accused with the help of foot-print expert Pagi Sajjan Khan. The statement of the accused was recorded under S. 313 Cr. P. C. He has stated that he was shown to the witnesses when he was arrested. He did not produce any defence and, therefore, the learned lower court after hearing both the parties decided the case as aforesaid. Hence this appeal. I have heard Mr. Doongarsingh, the learned counsel for the accused-appellant and Mrs. Chandralekha, the learned Public Prosecutor for the State. I have carefully gone through the record of the case. Mr. Doongarsingh, the learned counsel appearing for the accused-appellant has submitted that" this case has falsely been lodged against the accused-appellant. Fictitious witnesses have been created. False record has been prepared and the entire story of the prosecution has been changed so as to bring it in accordance with the medical evidence. As per him, nobody has seen the occurrence. He has further submitted that according to the prosecution, an attempt has been made to trace the accused on the basis of the foot prints with the help of foot-print expert Pagi Sajjan Khan but Pagi Sajjan Khan has not been examined and no moulds of the foot prints have been taken. The site inspection memo Ex. P. 2 shows that three foot prints of three persons were existing at the spot. Mr. Doongarsingh has submitted that initially, the case of the prosecution as set up in the F. I. R. on the information given by Sahabdansingh was that two persons one armed with an axe and the other armed with a lathi came there and inflicted injuries to Vasudeo, by which, he fell down and thereafter, the accused-persons ran away from the place of the occurrence. It is alleged that Sahabdansingh has seen the occurrence and thereafter, he went to village and informed Chananmal about this occurrence. In this F. I. R. , Chananmal has not disclosed the names of other eye witnesses, who it is alleged have seen the occurrence and have talked with Sahabdansingh. It has been mentioned in the F. I. R. that Sahabdansingh was not able to identify the persons who were two in number one armed with an axe and the other armed with a lathi and they have inflicted three injuries on his head. But now, it is alleged that only one person was there who was armed with a lathi and he has inflicted three injuries on the head of Vasudeo. The alleged eye witnesses of the occurrence i. e. P. W. 9 Bhanwarsingh, P. W. 10 Nimosingh and P. W. 11 Gopalsingh have stated that they went near the place of the occurrence and. have a talk with Sahabdansingh and told him that Bhojrajsingh has inflicted injuries to Vasudeo. If that was so, the names of these witnesses could have been disclosed by Sahabdansingh to Chananram and he would have further disclosed this fact in the F. I. R. that it was accused Bhojrajsingh Who has inflicted these injuries to Vasudeo. In these circumstances, Sahabdansingh would not have informed Chananram that two persons have inflicted injuries to Vasudeo and they were armed with lathi and axe. If such number of persons were there, they would have caught hold of accused Bhojrajsingh. If accused Bhojrajsingh was actually seen by these witnesses and has been identified, there was no reason for the prosecution to protect the foot prints and to go in search of the accused on the basis of the foot prints with the help of foot prints expert Pagi Sajjan Khan. This clearly shows that accused Bhojrajsingh was not seen by anybody, otherwise there was no necessity to track the foot prints to arrest the accused. They would have straight way gone to village Gujangarh because they knew that it was accused Bhojraj Singh who has committed this crime.
(3.) MISS Sumitra Sankhla, the learned Public Prosecutor appearing for the State has, however, submitted that in this case not only the accused has been identified by the eye witnesses and has been named but he was put for identification in the Jail to witness Sahabdansingh and he has identified him and, therefore, this supports the testimony of Sahabdansingh that this was accused Bhojrajsingh who has taken part in this incident. I have considered the rival submission made at the bar and I feel inclined to agree with the submissions made by Mr. Doongarsingh, the learned counsel appearing for the accused appellant. In this case, it appears that no body has seen the incident. The report of the incident has been lodged by P. W. 18 Chananmal on the basis of the information supplied to him by P. W. 8 Sahabdansingh. In this report, he got it recorded that at the time of the incident, two persons came in the field and they inflicted injuries to Vesudeo with axe and lathi. So much so, Vasudeo became unconscious on account of the injuries received by him. When Sahabdan Singh found that Vasudeo has become unconscious, he went to village and informed Chananmal that Vasudeo has been severely beaten. Thereafter, Chananmal accompanied by other persons went to the field and found that three injuries were existing on his head inflicted by lathi and axe. P. W. 17 Dr. Ramakishan who has conducted the postmortem examination of accused Vasudeo has found only one injury on his head, which was a lacerated wound of the size of 6 cm x 2 cm. He has categorically stated that on other injury was found on his person. On opening the skull, he found that there was fracture on the left side of the parietal bone which was found fractured. There was clotting of the blood, which clearly shows that Vasudeo received only one injury on his head. The injured Vasudeo was sent for medical examination vide memo Ex. 2. 13 which shows that he received 6 injuries on his person. Later, after the death of injured Vasudeo, when Panchnama Lash and Inquest memo were prepared, the police found four injuries on his person. It appears that this evidence has been created to involve number of persons for inflicting number of injuries and all these documents prepared by the police can safely be hold to be false documents when they are compared with the postmortem report as well as the medical evidence. ;