A. K. MATHUR, J. - (1.) THIS is an appeal directed against the judgment of the learned Additional District & Sessions Judge, Hanumangarh dated 4th of March 1986 by which the learned Judge has convicted the accused Krishan, Mithusingh and Dungarram under section 302 read with section 341 I. P. C. and sentenced to them life imprisonment with a fine of Rs. 2000/-, in default of payment of fine to further undergo one year's R. I.
(2.) BRIEF facts which are necessary for the disposal of this appeal are that on 8th October 1982, Vali Mohd. sen of complainant Mst. Rehmatbibi went to fetch bidi bundle from the shop of Asharam Meghwal. On the way Vali Mohd. was way-laid by all the three accused persons. It is alleged that Mithusingh was armed with Gandasi, Dungar Ram was armed with Lathi and Krishan was armed with a Gandasi. Shokat the younger brother of Vali Mohd. , was also playing around the temple near the scene of the occurrence. When he saw that his brother was being belaboured by these accused persons, he immediately rushed to the house and informed his mother Mst. Rehmatbibi about the beating of these accused persons. Thereafter Mst. Rehmatbibi along with her two daughters and son Shokat immediately rushed on the scene of the occurrence. It is alleged that at that time they saw Vali Mohd. was being belaboured by the accused persons. Complainants Rehmatbibi and her son Shokat raised alarm that as a result of which the accused persons withdrew from that place. Hansraj and Maniram ran away from that place. It is alleged that at the time of the beating Hansraj and Maniram were present on the scene. First information report of this incident was filed by Rehmatbibi on 9th of March 1982 at 8 A. M. at Police Station, Hanumangarh Junction. On the basis of this report a case under section 307 read with section 34 I. P. C. was registered. The injured Vali Mohd was taken to the hospital. Thereafter on 10th of October, 1982, when Mst. Rehmatbibi was taking the injured to Jaipur for treatment, the injured died near Sikar and, therefore, offence under section 302 I. P. C. was registered against the accused. The dead body of the accused was sent for postmortem. Police during the course of investigation prepared a site plan and arrested the accused; A Lathi was recovered at the instance of the accused Dungarram and likewise Gandasi from Mithusingh and Dungarram. After close of the investigation Police flled a challan against Mithusingh and Dungarram under section 302 read with sec. 34 I. P. C. in the court of Munsif and Judicial Magistrate, Hanuman-garh. A complaint was also filed against accused Krishan and a cognizance was taken against him. As such all the three accused persons were charged under section 302 and in the alternative under section 302/34 I. P. C. Prosecution examined six witnesses. The learned Sessions Judge after close of the trial found accused guilty as aforesaid. Hence the present appeal. Mr. Kharalia learned counsel for the accused-appellant has submitted that there is no direct evidence to connect the accused with the crime. Learned counsel submitted that the sole testimony is that of P. W. 4 Shokat and his testimony cannot be accepted for the simple reason that in the site plan the Investigating Officer has not pointed out that from what place Shokat had saw the incident. Learned counsel further submitted that according to the prosecution when Hansraj and Maniram are said to be the eye witnesses of the scene of the occurrence, the prosecution has not examined at all. The learned counsel also invited our attention to the statement of P. W. 2 Rahmat-bibi who is also said to be the eye witness but she reached at the scene of the occurrence on an information received by Shokat of the so called beating. Learned counsel submitted that the distance of the place of occurrence and the incident is about one Bigha. Therefore, by the time Shokat could inform his mother about the incident and she could reach that place of the occurrence it is difficult that she could witness the whole incident. In these circumstances, the learned counsel submitted that there is no evidence to connect the accused with the crime. As against this, the Public Prosecutor for the State has supported the judgment. In order to appreciate the contention raised by the learned counsel it is necessary to examine the testimony of P. W. 4 Shokat and P. W. 2 Rehmat-bibi, mother of the deceased. P. W. 4 Shokat has deposed that on the fateful day at about 6 p. m. he was playing a 'kabbadi' near the temple. His brother went to fetch some bidies. There he found that the accused Mithusingh, and Krishan and Dungarram were belabouring him. Mithusingh was armed with a Gandasi, Krishan was armed with Gandasi and Dungarram was armed with a Lathi. He further deposed that when he saw his brother being belaboured, then he ran away to his house to inform his mother and sister. There upon his mother along with two sisters rushed on the scene. Vali Mohd. was lying on the field and the accused were beating him. When all of them reached there on the scene of the occurrence and raised hue and cry thereupon all the accused persons left. He has further deposed that his brother at that time was unconscious. He has deposed that Maniram and Hansraj were present. Then all of them carried his brother to house. ' Thereafter his mother went to the village to bring some transport. But she could not find any. However, at 4 A. M. they brought Jogender's cart and took the injured to Hanumangarh, In cross-examination he has admitted that he saw accused Dungarram giving one lathi blow on the victim. He immediately ran from that place. He has further deposed that at that time he did not see the other accused belabouring him. Esjs lkeus eqyfte Mwwxj us ,d pksv ekjh Fkha ckdh eqyfteku us pksv ml oä pksv ugha ekjh Fkha** He has also admitted that the distance from the place where he was playing and his house is situated about one Bigha. P. W. 2 Rehmatbibi has deposed that on fateful day Shokat her son cams running to the house and informed her that Vali Mohd. is being belaboured by Krishan, Mithusingh and Dungarram. She immediately rushed on the scene, along with her daughters and she saw accused beating his son. She has deposed that Mithusingh was armed with Gandasi, and Krishan was armed with Gandari and Dungarram was armed with Lathi. She has alleged that her son was lying on the ground and all the three persons were belabouring him. When a cry was raised then all the accused persons left. She has also deposed that at the time when the beating was going on Hansraj and Maniram were present on the scene. She has supported the version of her sen Shokat. Now the question is whether both P. W. 4 Shokat and P. W. 2 Rehmat-bibi are eye witnesses of the incident or not. We have bestowed our best of consideration to the testimony of both the witnesses. It appears that the incident took place at 6 P. M. and the distance of the house of Mst. Rehmatbibi from the place of occurrence was one Bigha. According to the testimony of Shokat the first blow was given by the accused Dungar Ram as a result of which the victim fell down. Thereafter he ran away from that place and informed her mother P. W: 2 Rehmatbibi about the whole incident. Rehmatbibi reached after receiving information from his son about so called beating. From these facts, it appears that it is not possible to believe that the accused persons will remain standing and keep on beating till Rehmatbibi arrive on the scene. This is so because of the fact that the deceased has only received four injuries and one of them is incised wound. According to the statement of Shokat when Mithusingh and Krishan were armed with Gandasi and there was no incised wound on the body of the deceased, the fatal injuries are on the head of the deceased. For causing these four injuries it is net possible to believe that these persons will wait till Rehmatbibi to arrive to witness the whole incident. Looking to the nature of the, injuries and the distance of one bigha from the place of the occurrence we are of the opinion that Rehmatbibi could not witness beating of her son Vali Mohd. by the accused persons. Secondly, according to the statement of P. W. 2 Rehmatbibi and P. W. 4 Shokat, Hansraj and Maniram were said to be the eye witnesses of the incident. But both were, not examined by the prosecution. Therefore, in these - circumstances it is not safe to rely on the testimony of P. W. 2 Rehmatbibi.
(3.) NOW this leaves us the sole testimony of P. W. 4 Shokat. He is the real brother of deceased aged 12 years. It is submitted that Mr. Kharalia learned counsel for the appellant that the Investigating officer has not pointed out place from where P. W. 4 Shokat could witness this whole beating. This emission on the part of the Investigating Officer in preparation of the site plan will not render the testimony of P. W. 4 Shokat as unreliable. So far as testimony of P. W. 4 Shokat is concerned, reading of the same shows that he has reason to be there as he was playing with his other friends at that time. It is not an unusual conduct. There-fore, that testimony of P. W. 4 Shokat is truthful. But the testimony of P. W. 4 Shokat also does not advance the case of the prosecution to any greater length for the reason that he has only witnessed the beating given by Dungar Ram with lathi on the victim. As such the accused persons cannot be convicted under section 302 read with section 24 I. P. C. as he has specifically staled in his cross-examination that he did not see Mithusingh and Krishan beating deceased Vali Mohd. Therefore, the case at best could not travel beyond section. 325 I. P. C. only. Since Doongar has also been charged under section 302 simplicitor and in alternative all the three accused persons have been charged under section 302 read with section 34 I. P. C. Since there is no evidence to show that Krishan and Mithusingh took any participation in beating, therefore, both are acquitted of all the charges. Accused Doongar Ram can only be held liable for causing injury by Lathi to deceased. Thus, in the result, the accused Mithusingh and Krishan and Dungar Ram are acquitted of the offence under section 302 and 302 read with section 34 I. P. C. However, accused Dungarram's conviction is altered to that under section 325 I. P. C. Learned counsel for the appellant Mr. Kharalia submitted that accused-Dungar Ram has already served more than six years, therefore, it will not be proper to send him back to Jail. The submission of the learned counsel appears to be just. We convict accused Dungarram under section 325 I. P. C. and sentence him to the substantial sentence already undergone by him without any fine. ;