C. M. LODHA, C. J. - (1.) THIS is an unfortunate case in which the appellants Tolaram and Dana Ram are alleged to have murdered their father Nyolaram and brother Noranglal, with the assistance of a third person-Tejaram, brother of Tolaram's wife. The motive behind the murder is alleged to be strained relations between Tolaram and Danaram on the one hand and the deceased Nyolaram and Noranglal on the other.
(2.) NYOLARAM had five sons, viz. Tolaram, Danaram, Noranglal (deceased), Banna Ram and Dungar Ram. Except Dungar Ram the other four brothers lived in village Nuvan. Nyola Ram was residing with Tolaram but his relations with Tolaram were not happy. Danaram used to side with Tolaram. On November 19,1973 Tolaram and Danaram gave beating to NYOLARAM. The next day the deceased NYOLARAM went to Ratangarh with Noranglal for treatment. The prosecution case is that when both the deceased were returning in a bullock cart in the evening from Ratangarh to their village Nuvan, situated at a distance of seven miles from Ratangarh, they were way-laid at about 8. 30 p. m. by the three accused viz. Tolaram, Danaram and Tejaram-brother-in-law of Tolaram. Tejaram and Tolaram were armed with 'lathis', and the accused Danaram was armed with a 'chosangi' i. e. an iron pronged lathi. All the three accused inflicted multiple injuries on Noranglal and NYOLARAM. The victims raised a hue and cry which attracted the attention of P. W. 6 Jeewan Singh, who came to the spot, but did not stay there out of fear and ran to the village and informed P. W. 1 Banna Ram of the incident. P. W. 11 Madanlal and P. W. 18 Chhaganlal brothers and one Jankilal, who were in a hut, nearby also came to the spot on hearing the cries of the victims. They could not identify the assailants but when Madanlal and Chhaganlal reached the spot, they found both the victims lying in a pool of blood. Noranglal told them that his brothers Tola Ram and Dana Ram, and Tola Ram's brother-in-law had beaten them. Madanlal and Chhaganlal brought both the injured on the bullock cart to the village and took them to the house of Norang Lal. P. W. 2 Likhma Ram, P. W. 4 Taja Ram, and P. W. 13 Pura Ram came to the house of Norang Lal along with other villagers to look after the injured, and before these witnesses as well as before P. W. 5 Mst. Naraini, daughter of Norang Lal and P. W. 2 Mst. Bhanwari Bai, widow of Noranglal, the injured stated that they had been beaten by the three accused. Since the condition of both the injured was serious, P. W. 2 Likhmaram went to Ratangarh to bring a vehicle. However, by the time Likhmaram returned with a vehicle from Ratangarh, NYOLARAM had breathed his last and consequently Noranglal was taken to the hospital, at about 4 in the night. P. W. 14 Dr. B. N. Bhargava examined Norang-Lal and finding his condition serious, he sent a letter Ex. P. 29 to the Station House Officer, Ratangarh to come to the hospital to record the dying declaration of Noranglal. On receipt of the letter, P. W 16 Nagarmal started for the hospital but on the way he received another letter from Dr. Bhargava, marked Ex. P. 30, stating that since the condition of Noranglal deteriorated, and he died shortly before, he had himself recorded the dying declaration of Noranglal (Ex. P. 17), which was also sent along with the letter. P. W. 16 Nagarmal went to the hospital and placed the dead body of Noranglal in the mortuary, and thereafter went to village Nuvan, where the dead body of NYOLARAM was lying. From village Nuvan he went to the place of occurrence and after carrying out the necessary investigation at the spot, he handed over the investigation of the case to P. W. 17 Bhopal Singh on November 22, 1973. P. W. 17 Bhopal Singh recorded the information given by the three accused regarding the weapons of offence and made recoveries of the same at their instance. The information given by Tejaram is Ex. P. 40. The recovery memo of the 'lathi' Art. 15, pointed out by Tejaram, is Ex. P. 25. Ex. P. 39 is the information memo, whereby Tolaram gave information regarding the 'lathi' used by him and the recovery of the same is Ex. P. 26. Dana Ram also gave information regarding the 'chosangi', weapon of the offence used by him. Ex. P. 41 is the information memo and Ex. P. 22 is the recovery memo of 'chosangi'. Both the 'lathis' and the 'chosangi' were sent for chemical analysis. The Chemical Analyser's report is Ex. P. 42 and the Serologist's report is Ex. P. 43 All the three weapons were found to be stained with human-blood. Thus after the investigation had been completed, all the three accused were prosecuted to stand trial for the offences of committing murders of NYOLARAM and Noranglal. The three accused, in the course of their statements, denied having committed the offence, and produced four witnesses in defence. The Additional Sessions Judge, Churu, found that the accused Tola-Ram had been identified at the spot by P. W. 6 Jeewan Singh. He accepted the evidence regarding dying declaration made by the deceased Noranglal to Madanlal at the place of occurrence as well as to P. W. 2 Likhma Ram, P. W. 4 Teja Ram, P. W. 5 Mst. Naraini, P. W. 12 Mst. Bhanwari, Bai and P. W 13 Pura Ram, at the house of Noranglal, in village Nuvan. The learned Additional Sessions Judge also found that the dying declaration Ex. P. 17 made to Dr. Bhargava, at the hospital in Ratangarh, was also proved. He also relied upon the recovery of the 'lathis' and the 'chosangi' at the instance of the accused. He disbelieved the defence evidence of alibi. In the result, he came to the conclusion that the offences of murders of Nyolaram and Noranglal had been fully established against all the three accused. Consequently, he convicted them under sec. 302/34, Indian Penal Code, and sentenced each of them to rigorous imprisonment for life. Mr. Arora, learned counsel for the appellants, has strenuously urged that none of the assailants were identified at the spot and the accused have been falsely implicated on account of the previous day's incident and the strained relations between the parties. He has also submitted that the evidence regarding dying declaration is not reliable and at any rate the dying declaration Ex. P. 17 is inconsistent with medical evidence. Learned counsel has also argued that the recovery cannot be relied upon, in as much as, none of the weapons recovered can cause incised wounds found on the body of Nyola Ram. It is fully established by the prosecution evidence that Nyolaram and Noranglal died on account of the injuries caused to them, on the night of Nov. 20, 1973, while they were coming to their village in a bullock cart from Ratangarh. On this point there is over-whelming evidence. P. W. 6. Jeewan Singh P. W. 11 Madanlal and P. W. 18 Chhaganlal are the witnesses, who had seen both the deceased lying seriously injured, on the way between Ratangarh and village Nuvan. P. W. 6 Jeewan Singh informed P. W. 1 Bannaram of the occurrence. P. W. 11 Madanlal and P. W. 18 Chhaganlal took them in a bullock cart to their house in village Nuvan. P. W. 2 Likhmaram took Noranglal to the Government Hospital at Ratangarh. P. W. 14 Dr. Bhargava examined the injuries of Noranglal and recorded his dying declaration. Dr. Bhargava also performed autopsy on the dead bodies of both the deceased. Thus from the above evidence, it is conclusively proved that both the deceased were brutally belaboured as a result of which they received a number of injuries, and ultimately died. The important question is, whether the three accused or any one of them were among the assailants ?
(3.) THE case against the accused rests on three types of evidence: (1) Identification at the spot, (2) Dying declarations made by the deceased, and (3) Recovery of the weapons of offence, on the information supplied by them, and at their in stance. We propose to deal with the aforesaid evidence ad-seriatim. Excep Tolaram, no other accused was identified at the spot. P. W. 6 Jeewan Singh states that he could not identify the other two assailants, but he had identified Tolaram. Learned counsel has urged that since it was a dark night, it was not possible for Jeewan Singh to have identified any of the assailants. P. W. 6 Jeewan Singh states that on the night of occurrence he had seen Noranglal and Nyolaram going towards village Nuvan, in a bullock cart and he also saw Tolaram accused going that way with a lathi in his hand. Suspecting him to be Tolaram, the witness asked him, whether he was Tolu?, but Tolaram did not give any reply, and shortly thereafter he stopped the bullock-cart in which the deceased were going. In the course of cross-examination the witness has stated that when he called 'tolu', he answered in the affirmative "hoon", but he had no other talk with him. He states that he saw also two persons beat-ing Noranglal and Nyolaram, but he could not recognise them. He further states that out of fear, he ran away. It appears to us that the witness hearing the hue and cry made by Nyolaram and Noranglal, went near them. It further appears that he was able to recognise Tolaram only, inasmuch as, he immediately ran to the village and informed P. W. I Banna Ram that Nyolaram and Norang Lal had been beaten by Tolaram and two others. The evidence of this witness is thus corroborated by the statement of P. W. I Bannaram. The conduct of the witness is also most natural inasmuch as he lost no time in informing the next of kin of the deceased of the occurrence. If at all. the witness was out to tell a lie, then he could have deposed regarding the identification of the other two accused also, but he has not done so. Consequently we are persuaded to believe that there is a grain of truth in the statement of this witness. Tolaram is said to have passed by his side and therefore it was not difficult for him, known as he was from before, to recognise him. The lower court has accepted the testimony of P. W. 6 Jeewan Singh and we also do not see any ground for discarding it. Thus the presence of Tolaram at the place of occurrence has been proved by P. W. 6 Jeewansingh. Of course, there is no evidence regarding the identification of the other two accused at the spot. ;