S. S. BYAS, J. - (1.) THE appeal is directed against the judgment of the learned Addl. Sessions Judge No. 2. Bharatpur dated June 25, 1988 by which accused Dharm Singh was convicted under Section 302 and Ram Charan. Atiroop and Maharaj Singh were convicted under Sections 302/34 IPC and each was sentenced to imprisonment for life with a fine of Rs. 100/-, in default of the payment of fine to further under go one month's rigorous imprisonment.
(2.) THE four appellants before us are real brothers being the sons of Girraj Singh Gujar of village Nagla-Rarodia, Police Station, Bayana, District Bharatpur. Pw-1 Sardarsingh is the uncle of the appellants being the real brother of their father Girraj Singh. Girraj Singh and Sardar Singh (PW-1 ). had one more brother Ram Singh. THE deceased victim Bhagwan Singh aged about 22 years was the son of Ram Singh. Around 12 00 hours on 16-11-1986 Bhagwan Singh was coming from the well of Karan Gujar with a plough and was going to his field When Bhagwan Singh reached near the 'dol' of the fields of Ramkhilari and Harsukh Lal Jatavs', the appellants emerged out from the bushes where they had hidden themselves. Accused Dharm Singh was having a pharsa and the remaining three Ram Charan, Atiroop and Maharaj Singh had lathies. They opened onslaught on Bhagwan Singh and inflicted blows to him with their weapons. Bhagwan Singh raised cries. PW-1 Sardar Singh, PW-3 Raja Ram, PW-4 Ram Swaroop and PW-6 Pyare Singh who were in their fields nearby rushed to the spot Bhagwan Singh became unconscious on the spot. PW-1 Sardar Singh and some other persons took Bhagwan Singh in a bullock cart to the Government Hospital, Bayana where he was declared dead by the doctor. Sardar Singh went to the police station, Bayana and presented written report Ex. P. 1 of the incident at about 4-30 p. m. on the same day. The police registered a case under Section 302/34 IPC and proceeded with the investigation. A. S. I. Raghuveer Singh PW-9 went to the hospital and prepared inquest report Ex P. 3. He also inspected the site and prepared the site-plan Ex. P. 5. He lifted the blood stained soil from there and seized it. The autopsy over the victim's dead body was conducted on the same day by Dr. K. N. Sakhlecha, the Medical Officer-in-charge, Primary Health Centre, Bayana. The doctor noticed the following anti-mortem injuries over the victim's dead body : (a ). External 1. Incised wound 3" x 1/3" Bone deep. Left side of parietal bone 4" away from left pinna of ear-grievous sharp. 2. Incised wound 1-1/2" x 1/3" x 1/3" right occipital region 4" away from right pinna of ear simple sharp, 3. Contusion 2" x 3/4" right elbow joint-simple blunt, 4. Abrasion with clotted blood 1/4" x l/6" right knee joint simple blunt, 5. Contusion with abrasion 3" x 2" right Dorsal site of hand - 1/3 x 1/6" simple blunt, 6. Bruise 3" x 1-1/2" lt. upper 1/3 of lt. fore arm simple blunt, 7. Bruise-3" x 1-1/2" lt. middle 1/2 of it. forearm simple blunt, 8. Bruise - 4" x 1/2" right side of back right scapular region-simple blunt, 9. Bruise - 3" x 1-1/2" right side of back 8, 9 ribregin simple blunt, 10. Abrasion - 1/6" x 1/6" middle 1/2 of lt. scapular-simple blunt, and 11. Contusion 1" x 1/2" and abrasion of 1/4" x 1/3" lt. Side of lower 1/3 of left leg-simple blunt. , (b) Internal There is fracture of left parietal bone with haemotoma beneath the bone present and over Brain substance full of haemotoma below the parietal bone region. Due to rupture of middle menigeal artery. In the opinion of the doctor the death was due to fracture, on parietal bone which has caused rupture of middle menigeal artery. The Autopsy report prepared by the doctor is Ex P. 22. The blood stained dhoti and kameej of the deceased were seized and sealed. Ail the four accused were arrested on 9-12-1986 and in consequence of the informations furnished by them, three lathies and one pharsa were recovered. The pharsa was recovered at the instance of accused Dharm Singh. The blood stained clothes of the deceased, lathies and pharsa were sent for chemical examination to the S. F. S. L. , Rajasthan, Jaipur from where report Ex. P. 13 was received. As per findings mentioned in the report Ex. P. 13, human blood of 'b' group was detected on the clothes of the deceased and pharsa. After when the investigation was over, the police submitted a crime report against the four accused in the Court of Munsif & Judicial Magistrate, Bayana, who in his turn committed the case for trial to the Court of Sessions. The case came for trial before the learned Addl. Sessions Judge No. 2, Bharatpur who framed charges under Sec. 302 against the accused Dharm Singh and under Section 302/34 IPC against the rest three. The accused pleaded not guilty and faced trial. They refuted the entire prosecution story and claimed absolute innocence. It was contended by them that the deceased Bhagwan Singh was not only their real uncle's son but also otherwise closely related to them. The wife of accused Atiroop was the real sister of the wife of the deceased Bhagwan Singh. Bhagwan Singh's father died in his child-hood and it was the father of the appellants who had brought up him and had arranged his marriage. There was no motive or reason for the appellants to kill Bhagwan Singh. In support of its case, the prosecution examined 11 witnesses and file some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Addl. Sessions Judge held the charges duly brought home to the appellants. They were consequently convicted and sentenced as mentioned at the very out-set- Aggrieved against their conviction, the accused have come-up in appeal. Dr. K. N. Sakhlecha, who had conducted the medico legal autopsy over the victim's dead body could not be examined by the prosecution because he was not available. Dr. K. N. Garg P. W. 11 was examined to prove that the post-mortem report Ex. P. 22 was in the handwriting of Dr. Sakhlecha and bears his signatures. Dr. Garg P. W. 11 had worked with Dr. Sakhlecha and, as such, he claimed to be acquainted with the hand-writing and signatures of Dr. Sakhlecha. We have heard Mr. Biri Singh-learned counsel for the appellants and the learned P. P. Shri Rizwan Alvi. We have also gone through the case file carefully. In assailing the conviction, the first contention raised by Mr. Biri Singh is that Dr. Sakhlecha was not examined by the prosecution PW-11 Dr. K. N. Garg who was examined to prove the post-mortem report Ex. P. 22 did not state that the injuries found on the victim's dead body were sufficient in the ordinary course of nature to cause death. It was argued that it was open to the prosecution to elicit an opinion from Dr. Garg PW-11 as to whether any of the injuries or all the injuries taken together was or were sufficient in the ordinary course of nature to cause death. The infirmity pointed out by Mr. Biri Singh is there and we will deal with it later on. In order to bring home the guilt to the accused, the prosecution examined four ocular witnesses namely PW-1 Sardar Singh, PW-3 Raja Ram, PW-4 Ram Swaroop and PW-6 Pyare Singh. Out of them PW-6 Pyare Singh turned volte face and lent no support to the prosecution. He stated that he saw none beating Bhagwan Singh. He was declared hostile and despite cross-examination, nothing helpful to the prosecution could be elicited from him. In the cross-examination by the accused, he stated that the marriage of the deceased Bhagwan Singh was arranged by the appellants' father Girraj Singh.
(3.) PW-4 Ram Swaroop also stated nothing materially beneficial to the prosecution. He stated that he simply saw Bhagwan Singh lying wounded. He expressed his ignorance as to who had caused injuries to him. Ofcourse, he stated that he had seen the appellants running away from the place of incident. In cross-examination he stated that he was looking after his cows grazing nearby the place of incident. In his police statement Ex. D. 4, he stated that he was coming to Bayana and he saw PW-1 Sardar Singh, PW-3 Rajaram and PW-6 Pyare Singh taking Bhagwan Singh in a bullock cart towards Bayana. Bhagwan Singh had wounds on his person. He was confronted with the aforesaid portions A to B and C to D in Ex. D. 4 and he denied to have stated these portions before the police during the investigation. He is a resident of village Thanadangh which is more than three miles away from the place of incident. In his cross examination he admitted that PW-1 Sardar Singh is the husband of his sister. In Ex-D. 4 he also stated that deceased Bhagwan Singh made a declaration before him that he was assaulted and beaten by the appellants. When he was confronted with the aforesaid portion in Ex. D. 4, he again denied to have stated so during the investigation. He has thus made contradictory statements throughout which cannot be reconciled. His village is more than three miles away from the place of incident and we are unable to imagine that he was grazing his cows near-about the site of crime. His presence on the spot is highly doubtful. His claim to have seen the appellants running from the place of incident does not appear to be true and credible. His testimony does not inspire confidence. We are then left with PW-1 Sardar Singh and PW-3 Rajaram. Both of them claimed to have seen the incident and the appellants striking blows with pharsa and lathies to Bhagwan Singh in the field of Ram Khilari Jatav. The learned Addl. Sessions Judge treated them as witnesses of truth and accepted their evidence sufficient and reliable to convict the appellants. It was strenuously contended by Mr. Biri Singh that both these persons have falsely introduced themselves as ocular witnesses of the incident. It was argued that PW-3 Rajaram is a resident of village Thanadangh, nearly three miles away from the place of incident. His claim that the deceased Bhagwan Singh had called him to plough his field on that day of incident is highly unusual and unconvincing. Moreover, the field of Bhagwan Singh is situate at some distance from the site of incident. He had no reason to come to the place of incident. A part from that it was argued that there were major contradictions in what he stated during the trial and in what he stated during the investigation. He is also a close relative of PW-1 Sardar Singh and the real nephew of PW-4 Ram Swaroop who was the brother-in-law of Sardar Singh Sardar Singh had his own axe to grind against the appellants. It was further contended that PW-1 Sardar Singh is a total lier and his claim to have seen the incident is absolutely unfounded. Mr. Biri Singh took us through the statements of these witnesses and pointed out the various contradictions which according to him are sufficient to discard what they testified on oath. While assessing the testimony of PW-1 Sardar Singh, one thing certainly stands in his favour and that is that he is the real uncle of the deceased and the appellants. Naturally therefore, the learned PP. argued that his testimony cannot be lightly brushed aside or skipped over. We have carefully gone through the evidence of these two Witnesses. ;