JASRAJ CHOPRA, J. - (1.) THIS is an appeal against the judgment of the learned Additional Sessions Judge, Bikaner dated 10. 2. 1988 whereby the learned Additional Sessions Judge has held the accused-appellants Megharam @ Ladu-ram and Ganesharam guilty of the offences under ss. 307 and 326 IPC and has sentenced them on each count to 4 years' rigorous imprisonment together with a fine of Rs. 1,000/- and in default to undergo six months' rigorous imprisonment.
(2.) THE facts necessary to be noticed for the decision of this appeal briefly stated are that on the night intervening between 31st October and 1st November, 1986 accused-appellants Megharam @ Laduram and Ganesharam caused certain injuries to complainant Sukharam. THEy cut his testicles, 2/3rd portion of his penis and caused certain injuries on his neck and other parts of the body by sharp weapon. It is alleged that they entertained themselves alongwith injured Sukharam on a bottle of wine in the house of P W. 3 Amarsingh and later, it is alleged that they left village Dulmera for going to village Dhirera but before they left village Dulmera, accused-appellants Megharam @ Laduram and Ganesharam caught hold of the injured Sukharam and accused Ganesharam alongwith Laduram caused these sharp weapon injuries to him. At about 4 A. M. in the morning of 1st November, P. W. 2 Balusingh found him lying near Ramdeoji's temple crying for water. When he found him soaked with blood, he went to the village and informed the relations of injured Sukharam. THE relations of Sukha-ram came there, took him to the hospital and he was got admitted in the Hospital. His shoes and torn Kachha (Underwear) were found on the spot. A report of this incident was lodged on the next day at P. S. Loonkaransar at about 12. 45 PM by one Suganaram, which has been marked Ex. P. 8 On the basis of this report, a case under ss. 307 and 326 IPC was registered. THE injuries of the injured were got medically examined. THE site was inspected. THE pair of shoes, torn Kachha and other blood stained clothes of the injured were taken into possession. THE accused-appellants were arrested and on their information and at their instance, one Razor each was recovered. One of the Razor sent for chemical examination was found stained with human blood. After usual investigation, a case against both the accused was challan-ed in the court of the learned Sessions Judge, Bikaner, which was ultimately tried by the learned Addl. Sessions Judge, Bikaner, who charged both the accused-appellants of the offences under ss. 307, 326 and 324 IPC. The accused-appellants did not plead guilty to the charges and claimed trial whereupon the prosecution examined as many as 9 witnesses in the case. The statements of the accused were recorded under s. 313 Cr. P. C. They led no defence. After hearing both the parties, the learned Addl. Sessions Judge has convicted and sentenced the accused-appellants as aforesaid. Hence this appeal. I have heard Mr. Mridul Jain, the learned counsel appearing for the accused-appellants and Mrs. Chandralekha, the learned Public Prosecutor for the State and have critically gone through the record of the case. P. W. 6 Sukharam has stated that on the relevant day, he went to village Dulmera alongwith accused-appellants Megharam @ Laduram and Ganesharam. Initially, he went to Loonkaransar to obtain certain payments and thereafter, they purchased a bottle of wine and went to the house of P. W. 3 Amarsingh and there, they entertained themselves with the bottle of wine. Although, initially, he did not say that they purchased wine but later, in his cross-examination, he has admitted that they purchased and entertained themselves with wine. In the initial part of his cross-examination, he has admitted that they purchased wine on that day and went to the house of P. W. 3 Amar-singh and, there, they entertained themselves on the bottle of wine. P. W. 3 Amarsingh has categorically stated that these three persons i. e. accused Megha-ram @ Laduram and Ganesharam and injured Sukharam came to his house and they entertained themselves on the bottle of wine and thereafter, they went from there telling that they will go to village Dhirera. P. W. 6 Sukharam has stated that at about 10 or 10 30 PM after taking meals when they started for village Dhirera and came out of the village Dulmera, the accused-persons told him that some vehicle will come there and so, they must wait for it. He has further stated that thereafter, the accused-persons started beating him and initially they cut his testicles by which he became unconscious and later, they inflicted other injuries to him. He is not definite as to who has inflicted the sharp weapon injury on his neck. He has stated that he became unconscious and when in the morning, he was crying for water, P. W. 2 Balusingh who came to that side to case himself noticed him and called his relations, who took him to the hospital. P. W. 2 Balusingh has been examined and he has stated that he saw the injured Sukharam lying near the temple of Ramdeoji soaked with blood and then he informed his relations about this incident. He has stated that injured Sukharam did not disclose the names of his assailants to him but he demanded water from him. He found his testicles missing. One cheque book, one pair of shoes and one torn Kachha (Underwear) were lying there. P. W. 1 Sadasukh has stated that injured Sukharam is his nephew. He was brought to his house by Suganaram, Chunaram, Amarsingh and Parmaram and they disclosed to him that accused Laduram and Ganesharam have caused these injuries to him with knife. He then took him to the Hospital and got him admitted. The site was inspected at his instance and the blood stained torn Kachha (Underwear) and a cheque book alongwith one pair of shoes were also recovered in his presence. He has proved their recovery memos Ex. P. 4 and 5. P. W. 4 Suganaram who has lodged the report has stated that he alongwith Chunaram, Amarsingh and Parmaram went near Ramdeoji's temple in village Dulmera and there they found injured Sukhram lying in an injured condition, He was. unconscious and did not disclose the names of his assailants to him. This witness was declared hostile and was cross-examined by the learned Public Prosecutor. On his cross-examination, this witness has admitted that injured Sukhram told him that accused Laduram and Ganesharam have inflicted these injuries on his neck, testicles and other parts of the body and it was on his information that he lodged the F. 1. R. in the Police. He has stated that he did not know accused Ganesharam from before and his father's name was disclosed to him by Sukharam. He has also stated that the names of the assailants were disclosed to him by injured Sukharam in the hospital. P. W. 5 Chunaram has also gone to Ramdeoji's temple in the morning and he was told by injured Sukharam when he regained consciousness that these injuries have been inflicted to him by accused Ganesharam and Laduram. He is the uncle of injured Sukharam. According to him, the police constable came to Bikaner Hospital but Sukharam, was unconscious and therefore, no action could be taken.
(3.) PW 8 Dr. P. N. Mathurhas examined the injuries of injured Sukharam and he has categorically stated that he found one incised wound 13. 0 CM x 28 CM x trachea deep on upper 1 /3rd of neck anteriorly across the mid line obliquely placed nearing to transverse plane. He further found one incised wound 20. 0 CM x 6. 5 CM x testicles going deep upto the base of the testicles. The skin of the testicles pocket was not present. 2/3rd portion of his penis was also cut. There was a wound of the size of 6 CM x 0. 2 CM x muscle deep on the penis itself. One abrasion was found near the right ear. According to the Doctor, the injuries No 1 to 3 were caused by sharp weapon and injury No. 4 was caused by blunt weapon. Injuries No. 3 and 4 were simple in nature and injury No. 2 was definitely grevious. For injury No. 1, the matter was referred to the X-ray specialist but the X-ray report has not been produced. This much is clear that there was present on the neck one incised wound 13. 0 CM x 2. 8 CM x trachea deep on upper l/3rd of neck. The place and size of the wound clearly depicts the intention of the accused-appellants that they wanted to kill injured Sukharam. Even cutting of the trachea, testicles and penis also shows the intention of the accused that they wanted to kill him and if the injured had died because of these injuries, the accused would have certainly held guilty of the offence of murder. Mr. Mridul Jain, the learned counsel appearing for the accused-appellants has submitted that in this case, the F I. R. has been lodged on the next day. It is true that the incident took place on the night intervening between 31st October and 1st November. 1986. The injured was first spotted by PW 2 Balusingh in the morning of 1st of November, 1986. He immediately informed the relation of the injured and they took him to Bikaner Hospital. Looking to the number, nature and parts of the body involved in causing these injuries, that was quite natural. Keeping in view the serious nature of the injuries, the first concern of the witnesses should have been to shift him to the hospital so that immediate medical aid may be. made available to him. Of course, some of the witnesses have stated that the injured was in-conscious but the Doctor who has examined his injuries has stated that he was conscious and, therefore, the persons who accompanied hirn could have reported the matter to Bikaner Police but they have not done so and they have come to Loonkaran-sar to report the matter, which was the concerned police station. As the injured himself was admitted in the hospital, he could not have. reported the matter to the police and if other persons who were attending him thought that the matter be reported to the concerned police station, it cannot be said that the report has been made with inordinate delay. In the facts and circumstances of this case, delayed report hardly affects the merits of the case. Of course, there are certain contradictions in the testimony of the witnesses about taking of wine but there are no contradictions in the statements of these witnesses that these very accused-appellants are the assailants of injured Sukharam. Injured Sukharam himself has stated that these two persons caused these injuries to him. PW. 2 Balusingh has, of course, stated that injured Sukharam did not disclose to him the names of his assailants. He has been declared hostile and has been cross-examined on the basis of his earlier police statement wherein he has stated that injured Sukharam has disclosed to him the names of his assailants-Simply because the witnesses are near relations, their evidence cannot be discarded. It only needs to be scrutinized more careful. On a. close scrutiny, they stand the test of reliability in this case. There is no-reasons for any of these witnesses to falsely implicate these accused-persons with whom they have no enmity. Moreover, these witnesses have categorically supported the version given by Sukharam that these injuries have been caused to him by accused-appellants Ganesharam and Laduram @ Megharam. In such masters, the injured himself will never spare the real culprit and he will never falsely substitute the innocent persons for the real culprits. It is alleged that one Rameshwarlal has also come on the spot on information received by him from P. W. 2 Balusingh but he has not been examined It is not necessary that all the witnesses named by the prosecution should be examined. Most of the witnesses who were called have been examined. Mr. Mridul has submitted that in this case, the injured has stared that the injuries have been caused with the knife whereas the police has recovered two Razors from the accused-appellants, It is true that the injured has given out to the witnesses that he was injured by these accused-appellants with the knife but during investigation, the accused-appellants on their information and at their instance got to two Razors recovered and one of which was found stained with human blood. The statements of the accused that they committed this crime with the help of Razors is not admissible in evidence and so, the recovery of Razors is. of no consequence. I, therefore, feel that the recovery of the Razors cannot connect the accused-appellants with this crime in view of the categorical statement made by the injured himself that he was injured with a knife. In this respect, reliance has been placed on a decision of this Court in Sardarilal vs State of Rajasthan (1), wherein it was alleged that the injuries have been caused by the knife but on the information of the accused, Ballam was recovered. Looking to the material difference between oral evidence and the recovery of the weapon, the recovery of Ballam was not held to be a relevant piece of evidence to connect the accused with the commission of the crime. Although, there is not much difference between Razor and knife as compared to the difference between a knife and a Ballam, but still when the injured is categorical that he has been injured with the knife rather than Razor, the recovery of Razors cannot be held to be a relevant piece of evidence to connect the accused with the commission of the crime. ;