KUDAL, J. - (1.) THESE two appeals are directed against the judgment of the learned Sessions Judge, Jhalawar dated 28th February, 1979. As these two appeals arise out of the same judgment, they are being disposed of by this single judgment.
(2.) BRIEF facts of the case which are relevant for the disposal of these appeals are that Vijai Singh PW/1 lodged a report with the police at about 11. 30 a. m. on 15th August, 1978, that when he was taking his cattle for grazing towards his village he met Madan PW/8 who was carrying Chhagan on his shoulders and his mother Chhamma PW/2 was following. Smt. Chhamma PW/2 was weeping and Chhagan was not uttering any word. He was unconscious and his head was bleeding. Chhagan was taken to village Aklera for treatment, but he died near the village Asalpur; and, hence the dead body of Chhagan was brought back. Rodu PW/9 had informed him that Moti and Deoji have assaulted Chhagan with lathis and stones. This assault took place in the field of Chhagan The fields of Chhagan and Moti are adjacent to each other, and have a common 'med'. There has been a long standing enmity between the two, and a serious litigation was pending between the two. Thus, because of this enmity that Deoji and Moti had taken the revenge. The post-mortem on the dead body of Chhagan was conducted at about 4 p. m. on 15th August, 1978. 13 injuries were found on his body. According to the post-mortem report the fronto-parietal bone was found fractured. The occipital bone was also found fractured. Blood was oozing out from the head. Accused Moti and Deoji were arrested on the same day. At the instance of Deoji a gandasi was recovered vide Ex. P/17. At the instance of Moti a lathi was recovered vide Ex. P/16. On behalf of the prosecution, 16 witnesses were examined and 30 exhibits were produced. The statements of the accused-appellants under Sec. 313, Cr. PC. , 1973 recorded on 23-1-1979. In defence, the accused examined DW/1 Abdul Mazid Patwari, and produced Ex. D/l and Ex. D/2. On behalf of the accused-appellants, it was contended that there is no reliable and cogent evidence on record on the basis of which it could be inferred that the injuries to Chhagan were caused by these accused-appellants. The prosecution has mainly relied on the statements of Bada, Amar Singh, Narayan Singh and Rodu, who are said to be the eye-witnesses. The other witnesses, namely Smt. Chhamma, Madan and Vijai Singh could at best be classified as witnesses for circumstantial evidence. Vijai Singh PW/1 has stated that when he came out of his house for going to the grazing ground at about 7 a. m. Madan Bheel and the mother of Chhagan were carrying Chhagan. They bad brought Chhagan in the village. He inquired from Smt. Chhamma, mother of Chhagan. as to who has assaulted him. Smt. Chhamma replied that Moti and Deoji had assaulted him. Then he along with Moti Lal son of Nathu, Babu Lal, Bheru Lal and other took him for treatment for Aklera. Chhagan died on the way near Asalpur and, as such, he was brought back. When Smt Chhamma told Vijai Singh about this assault Madan Bheel was also there. Chhagan was unconscious and was bleeding from his head. The assault is alleged to have taken place in the field of Chhagan. The First Information Report was lodged by him. He further stated that Rodu and Smt. Chhamma had told him that Moti and Deoji had assaulted Chhagan. Smt. Chhamma did not tell him that she had seen the two accused assaulting Chhagan. He could not explain as to why the name of Smt. Chhamma was not mentioned in the First Information Report. Chhamma PW/2, the mother of the deceased Chhagan, stated that the children of the village stated that the cattle of Chhagan were roaming without being looked after by Chhagan, and that they had strayed into the Jawar fields. She then went towards that field. Madan Bheel was coming from that side. So, she and Madan Bheel then went in search of Chhagan. They found Chhagan lying in his field, and had injuries on his head and back, some stones were lying near his body, and some farsi injuries were appearing on his head. Then she and Madan lifted him and brought him home. When Chhagan was being taken for treatment to Aklera, he died in the way near village Asalpur, and so he was brought back. Bada PW/3 stated that he had taken his bullocks for grazing then a quarrel took place between Chhagan on the one side, and Deoji on the other side. Deoji caught hold of the legs of Chhagan and fell him down, when Chhagan fell down Deoji assaulted Chhagan on his head with a farsi. He gave him three strokes with farsi. He could not see the site, and therefore, ran away from this place. At this place, one Pujari, Mathura and Roda were present. Moti was also with Deoji. Moti did nothing. This witness was declared hostile at the request of the Public Prosecutor. In his cross-examination by the Public Prosecutor he stated that Moti accused also came there with a lathi and started abusing, Moti then caught hold of both the legs of Chhagan, and fell him down. Moti then gave a lathi stroke on the back of Chhagan. Moti then also wanted to assault the witness Bada.
(3.) ON being cross-examined on behalf of the accused, the witness Bada stated that the Ganpat Maharaj was standing on the 'med' of the field of Chhagan. Roda and Mathura were also standing on the 'med'. But they were on the village path. There was no one else except Ganpat Maharaj. Bada is a Hali of Baijnath But he did not inform Baijnath about this incident. He informed Baijnath of this incident after 4-5 days. He informe Mst. Chhamma at about sun-set. After having witnessed the 'marpeet' he did not come to the village. He did not see Madan and Smt Chhamma lifting and carrying Chhagan. He met the police man after five days in the village Haat, and during this interval he did not come to the village. At this stage, the witness stated that he is hard of hearing. Ganpat, Mathura and Roda went away after seeing the incident, and he also ran away. He went towards the jangal taking with him the bullocks and the calf. ON the day when he told Smt. Chhamma that Deoji and Moti assaulted Chhagan no one else was present. Amar Singh PW/4 stated that when he heard the notice near the well known as Bhawaniya, he went there. He saw Moti and Deoji running away from that place Both of them were carrying lathis. The witness was not administered oath as he is a child witness of 12/13 years and did not understand the implications of stating falsehood. He did not also know even little counting. Narain Singh is related to him. Narain Singh then did not meet him after he had brought the cattle-herds back from the pasture lands. Narain Singh PW/5 has stated that he had seen that Moti and Deoji were assaulting with lathis but he did not see as to who was assaulted. He then went away. He heard the voice of the lathis being dealt, but he did not come othere. This witness was also declared hostile at the request of the Public Prosecutor. On being cross-examined by the Public Prosecutor he stated that he had seen Deoji and Moti, but could not see as to who was lying there. He did not state these facts to anybody in the village. Later on, he stated that he had identified Chhagan as the person who was being assaulted, but he did not say to anybody except to Roda. Ram Lal PW/6 stated that he had seen Chhagan and Moti fighting in the field, but he did hot come there. He saw this from his house. This witness was also declared hostile at the request of the Public Prosecutor. He stated on being cross-examined by the Public Prosecutor that he could not see Moti and Chhagan as the 'makka' crops were high. His house is near the road, and the chowkidar lives in between his house and the fields of Moti. ;