JUDGMENT
Palok Basu, J.
1. Criminal Appeal No. 1314 of 1979 has been preferred by (1) Ram Bhajan son of Sheodan Singh, (2) Bishambhar, son of Babu Singh, (3) Sheodan and (4) Ram Charan, both sons of Har Bhajan while Criminal Appeal No. 1382 of 1979 has been preferred by Mahendra. son of Malkhan against the judgment and order dated 16-4-1979 passed by VI Addl. Sessions Judge, Bulandshahr in Sessions Trial No. 528 of 1978 thereby convicting all the appellants under Section 302/149 I.P.C., and 323/149 I.P.C., and sentencing them to imprisonment for life and a fine of Rs. 1000/ – on the first count and one year’s R. I. on the second count and further convicting and sentencing Bishambhar, Sheodan and Ram Charan under Section 147 I.P.C., to two year’s R. I. each and Ram Bhajan and Mahendra under Section 148 I.P.C., to three years R. I. each. The charge against the appellants was that on 23-5-1978 at about 9 P. M. they formed an unlawful assembly in the Gher of Smt. Sohanbiri in village. Doongra Jat, police Station Jahangirabad, Bulandshar and with the common object committed murder of Puran by causing knife and Pharsa injuries. Punishable under Section 302/149 I.P.C. The further charge against the appellants was that at the said date, time and place they voluntarily caused simple hurt to Mahabir Singh, P.W. 2 and Smt. Sohanbiri, PW-I and thereby committed offence punishable under Section 323/149 I.P.C.
2. According to the prosecution case appellants Sheodan and Ram Charan are brothers. Appellant Rambhajan is the son of Sheodan. Bishambhar appellant is the son of Baburam, uncle of Sheodan. Smt. Sohanbiri, PW-1 is wife of Nepal, another son of Baburam. Rambir is the third son of Baburam to whom sister of Smt. Sohanbiri, PW-1 is married and the said Rambir therefore, is the real brother-in-law of Smt. Sohanbiri, PW-1. Injured Mahabir, PW-2 is the son of Ram Swamp, another brother of Baburam. Deceased Puran is the son of said Mahabir, PW-2 Appellant Mahendra is the grand-son of the brother of the grand-father of other appellants.
3. Further case of the prosecution is that on 23-5-1978 Sohanbiri, PW-I had lodged an FIR at police-station Jahangirabad against Bishambhar and others that the said accused appellant Bishambhar had attempted to outrage the modesty of PW-1, Smt. Sohanbiri, in a drunken condition. It was said that the dispute concerning partition of the land had grown between them. On FIR having been lodged by Smt. Sohanbiri, PW-1 regarding the said incident Bishambhar and others felt greatly annoyed. Therefore, at about 9 P.M. the same day (23-5-1978) when PW-I Sohanbiri was feeding she buffalo with the help of a lantern in her hand the appellant Mahendra armed with Pharsa, appellant Rambhajan armed with knife and the other appellants armed with lathis came to the Gher of Sohanbiri, PW-I, gave her beating and Kicks and fists blows along with hurling abuses on her. On the hue and cry raised Puran, Mahabir, Bhim Singh, Rampal and others arrived at the Gher and Puran said that the appellants should not misbehave with Sohanbiri, PW-1. At this appellant Mahendra instigated saying that Puran be done to death then and there, at which he himself assaulted Puran with Pharsa while appellant Rambhajan inflicted knife injuries on Puran. Mahabir, PW-2 tried to save his son Puran but was also beaten with lathi and Pharsa. Puran fell down in the Rasta adjoining the Gher after which all the appellants ran away.
4. Puran. PW-1 Sohanbiri and PW-1, Mahabir were then taken to Jahangirabad hospital where they were medically examined and treated. Puran, however, died the same night at 2.15 A. M. (24-5-1978). PW-1 Sohanbiri lodged an FIR at police-station Jahangirabad at 3.30 A.M.
5. Dr. R. C. Sharma, PW-4, is the Medical Officer of District Board Hospital, Jahangirabad. He medically examined Puran now dead, in the Hospital at 1 A.M. in the night of 23/24-5-1978 and found the following injuries on his person:-
1. Incised wound 4 cm. x 2 cm. x 2.4 cm. on the left arm upper portion near shoulder.
2. Incised wound 6 cm. x 7 cm. x 2 cm. on the fore-arm left side. Lower half.
3. Incised wound 7 cm. x 4 cm. deep up to rib bone 2 cm. on the chest left side.
6. Injuries are grievous, caused by sharp weapon, alleged duration about three hours is possible. The injury report prepared by this witness concerning this medical examination, is Ext. Ka. 2.
7. The same night at 1.25 A. M. he medically examined Mahabir Singh, PW-2 and found the following injuries on his persons:-
1. Contusion 7 cm. x 2 cm. on the back-over scapular region right side.
2. Incised would 1.2 cm. x 0.2 cm. on the right hand plain dorsal surface.
8. Injuries simple, caused No. (1) by blunt weapon and No. 2 by sharp weapon, alleged duration about three is possible.
9. The injury report concerning this medical examination is Ext. Ka 3.
10. Concerning the injuries of Puran, this witness is of the view that injuries Nos. 1 and 3 could be the result of knife blow whereas injury No. 2 of Pharsa. He further slates that injury No. 3 alone was ordinarily sufficient for causing death and injuries Nos. 1 and 2 could collectively be responsible for causing his death. He further states that Puran Succumbed to his injuries the same night at 2.15 A.M. in the hospital. This witness has also spoken of dying declaration given to him by Puran before his death naming the accused Mahendra and Rambhajan as his assailants.
11. Regarding the injuries of Mahabir, he says that injury No. 2 of Mahabir could possibly be caused with Pharsa if its part touching the body is of the dimension of this Injury No. 2. He further states that injuries of Puran and Mahabir could possibly be caused at 9 P. M. in the night of 23-5-1978.
12. This witness also examined Sohanbiri at 9.30 A.M. in the morning of 24-5-1978. He did not find any external injuries on her person but she was complaining of pain on her back and chest. The injury report concerning this medical examination is Ext. Ka4.
13. Dr. G. N. Srivastava, PW-6 conducted autopsy on the dead-body of Puran at 4.30 P.M. on 24-5-1978 as Medical Officer District Hospital, Bulandshahr.
Following injuries were the antemortem injuries:
1. Stiched wound 1 1/2 over upper part inner side of left arm with blood clot present (after removing) stitches, wound is stabbed wound 1 1/2″ x 3/4″ muscle deep (2 1/2).
2. Stitched wound 2 1/2 over lower lateral part of left chest region with blood clot present, (after) removing stitches, wound is stabbed 2 1/2″ x l 1/2″ cavity deep).
3. Stitched wound 1 1/2″ over middle inner side left fore arm with blood clot (after removing stitches, wound is 1 1/2″ X 1/2″ X muscle deep.
14. On internal examination, pericardium was found lacerated, heart partially full, periteneum corresponding to injury No. 2 was found lacerated with the dimension 1 1/4″ x through and through.
15. Two lacerations in the abdomen, one being 2″ X 1/4″ X through and through and the second being 1/2″ X 1/8″ through and through, were also found.
16. There was blood and semidigested food in the stomach and the small intestine was full of gases and faecal matter. At the time of this post mortem examination, this witness prepared the post mortem report Ext. Ka 15. He is of the view that the death had occurred at about 2-2 1/2 A. M. in the night of 23/24 May 1978 and it was the result of shock and haemorrhage due to the aforesaid antemortem injuries which ordinarily could collectively be responsible for death and also the injury No. 2 individually could ordinarily prove fatal to life, he is also of the view that injuries Nos. 1 and 2 could possibly be the result of knife blows whereas injury No. 3 could be the result of Pharsa blow.”
17. Balbir Singh, PW-7 was the Head-Moharriar at police station-Jahangirabad at 3.30 A.M. on the night between 23/24-5-1978 and he registered a case in the general diary, copy of the entry has been proved as Ext. Ka 6 through which S.I. Sukhbir, PW-5 was entrusted with the investigation of the case. This witness has also proved that on 23-5-1978 at 10.40 A.M. Sohanbiri. PW-1 had lodged a report against Bishambhar and others, true copy of the Chick entry relating to that FIR has been proved as Ext. Ka 16. He has further said that information about the death of Puran from the hospital was brought by one kripal Singh at 6.10 A.M. who had brought along with blood stained shirt of Puran deceased. True copy of this general diary entry has been proved as Ext. Ka 17.
18. This witness Balbir Singh, PW-7 has also proved some defence documents. Ext. Khal has been proved by this witness being application of Bishambhar appellant dated 23-5-1978 which was received on 25-5-1978. He has also proved Ext. Kha 2, being the application of Ram Bhajan appellant dated 24-5-1978 which was received at the police-station on 29-5-1978. This has been proved as Ext. Kha 3. He has proved the endorsement made by K.P. Singh, Station Officer, Jahangirabad on the said application. He has also proved as Ext. Kha 4 being the general diary entry concerning the application of Ramvir Singh, son of Babu Singh, dated 24-5-1978. Exts. Kha 5 and Kha 6 are further entries in the general diary dated 26-5-1978 and 27-5-1978 regarding the movement of K. P. Singh, S. O. Jahangirabad in connection with defence applications.
19. PW-8, Mahendra Singh, constable has filed an affidavit regarding taking of the dead-body for post-mortem examination. S.I. Sukhbir of police-station Jahangirabad is PW-5 in whose presence the case was registered at the FIR of Smt. Sohanbiri, PW-1. He took up investigation at 4 A. M. After copying the FIR and G. D. in the case diary he recorded the statement of Sohanbiri, PW-1. He conducted inquest on the dead-body of Puran and proved the inquest report as Ext. Ka7. Chalan lash and photo lash and report to the R.I. report to the C. O. and separate report regarding the clothes of the deceased Puran to the C.M.O. have been proved by this witness as Ext. Ka8, Ka9, Ka10, Ka II and Ka 12 respectively. He inspected the place of occurrence on 24-5-1978, collected blood stained and plain earth including the blood-stained and plain sugar cane leaves the memoranda regarding which have been proved as Ext. Kal3 and Ka 14 respectively.
20. PW-9, K: P. Singh, S.O. took over the investigation on 25-5-1978 and recorded the statements of Mahabir PW-2 and Rampal, PW-3, etc. He also examined the lantern and handed it over to Sohanbiri, PW-1’s supurdgi vide memo Ext. Kal9. He filed a charge-sheet on 19-7-1978 vide Ext. Ka20 after completing the investigation.
21. All the accused-appellants have denied the prosecution case and have attributed false implication due to enmity. However, specific defence plea taken by Rambhajan appellant is that on 23-5-1978 Bishambhar had collected about 5 or 10 persons for some Panchayat. Mahabir, Puran and Rampal were also there. Sheodan had also arrived who advised that all disputes should be settled amicably. At this Mahabir and Puran started blowing lathis on him (Rambhajan). Seeing this Sheodan gave knife blows while Rambhajan managed to flee. He came to Bulandshahr, got himself medically examined on 24-5-1978, got an application prepared and moved the same before the Superintendent of Police, Bulandshar for getting a case registered against Puran and Mahabir, etc. and to get the same investigated. Similarly, appellant Sheodan has repeated the version of Rambhajan appellant and has said that when the prosecution side had started beating Rambhajan, he came to intervene and save the others from beating, he was forcibly attacked and apprehending that Rambhajan may be killed, Sheodan wielded knife injuries in self-defence and in defence of Rambhajan.
22. Accused-appellants have examined Dr. H.U. Zuberi, DW-1 and Yogesh Kumar, DW-2.
So far as Dr. H.U.Zuberi, D.W. 1 is concerned he medically examined the accused Rambhajan in the District Hospital Bulandshar at 5.30 P.M. on 24-5-1978 and found following injuries on his person:-
1. Lacerated wound 1/2 cm. x scalp on left side head 11 cm. above the ear (wrongly written as head in the injury report).
2. Scabbed abrasion 3 cm. x cm. on top of head.
3. Multiple scabbed abrasion in area of 4 cm. x 1 1/2″ cm. on right side forehead.
4. Scabbed abrasion 3 112 cm. x 112 cm. on left side neck lower part.
5. Contusion double line 11 cm. x 2 cm. on left back lower part.
6. Scabbed abrasion 1 cm. x 1/2 cm. on right scapular region upper part.
7. Scabbed abrasion 2 1/2 cm. x 1 1/4 cm. on back of right elbow joint.
8. Scabbed abrasion 1/2 cm. x 1/2 cm. on tip of the nose left side.
9. Swelling 2 cm. x 1 cm. on upper lip centrally.
10. 2 Scabbed abrasions in area 3 cm. x 1 1/2 cm.
11. Multiple scabbed abrasion in area of 11 cm. 23 cm. of left knee joint infront.
12. Complaint of pain left thumb.
23. Injuries simple, caused by blunt object. Duration about 3/4 the day. At the time of this medical examination this witness prepared the injury report Ext. Kha 7. He is of the view that these injuries could be caused at 9 P.M. on 23-5-1978 and could be the result of Lathi, blows. He has denied this suggestion of the prosecution that injuries 3 to 10 may be received by falling faceward and also-that at the time of medical examination abrasions were not present on the body of the accused Rambhahan and they were noted in the injury report with his connivance. This suggestion of the prosecution is also denied by him that the abrasion could have been created at about 5 A. M. in the morning of 24-5-1978. He does, however, state that scabbing of the abrasion starts between 10 to 12 hours of the causing of the injury. He also said that the abrasion could be self-suffered.
24. Sri Yogesh Kumar is DW-2. He is a private typist cum-petition writer in the Collectorate, Bulandshar. He states that on 24-5-1978 he prepared the application Ext. 7 by type at the instance of Rambhajan accused at about 2.30 P.M. This application is duly proved by him as having been also signed by Rambhajan in his presence and is marked Ext. Kha 9.
25. Placing reliance on the testimony of these eye-witnesses the learned trial Judge has convicted and sentenced the appellants as noted above. Hence this appeal.
26. Sri S. P. S. Raghav, learned counsel for the appellants, Sri V. S. Misra, learned A. G. A. for the State have been heard at sufficient length in this appeal and the entire record has been throughly scrutinised.
27. In order to prove the prosecution case three witnesses of fact have been examined and they are PW-1, Smt. Sohanbiri, PW-2, Mahabir and PW-3 Rampal Singh. Reference about formal witnesses has already been made above.
28. The principal argument advanced on behalf of the appellants is that the prosecution side has not come out with any explanation for the injuries sustained by appellant Rambhajan. It is said that while PW-I. Smt. Sohanbiri and PW-2, Mahabir have shown complete ignorance about the injuries of appellant Rambhajan, the third eye-witness PW-3. Rampal has admitted that he has himself noticed several injuries on appellant Ram Bhajan which he received in the same incident. Translated into English the said statement could read as follows:-
“I have seen with my own eyes. I was not blind. The lathi was plied on Rambhajan at about 20 yards from the place where Puran had fallen. He was beaten by lathi towards east of Sohanbiri. PW-l’s Gher… 1 could not locate the exact portions of the body of Rambhajan where the lathi landed but he did not fall down as a result of the lathi injuries.”
29. Strong reliance was placed on the testimony of this witness and it was argued that he had practically contradicted PW-1 Sohanbiri when he says that she docs not remember whether anyone of the prosecution side had beaten Rambhajan appellant with lathis or not.
30. It was again emphasised that so far as Mahabir, PW-2 is concerned he has made a categorical statement that (translation by Court). “In the incident resulting in the death of Puran neither I nor Puran nor any witness had beaten any accused. I had not seen any injury whatsoever on Rambhajan appellant.”
31. It was rightly argued that in the FIR also there is no mention whatsoever about any injuries having been caused to appellant Rambhajan. It, therefore, follows that the prosecution has tried to come out with some sort of explanation about injury sustained by Rambhajan appellant through the belated eyewitness account furnished by the testimony of Rampal PW-3. It is strange that neither Sohanbiri PW-1 nor Mahabir, PW-2 has come out with any explanation about the injuries and the FIR also lodged by PW-1, Sohanbiri is absolutely silent about the injuries sustained by Rambhajan appellant. As noted above, even the statement of Rampal, PW-3 is in fact not an explanation of the injuries of appellant Rambhajan but is in the nature of accepting the truth which was evaded by other witnesses. There are two more circumstances which were emphasised during the course of arguments which may indicate that the prosecution case may not be wholly true. It is said that PW-I, Sohanbiri had lodged the FIR with the allegations that (Translation by Court) “Ram Bhajan, Sheodan, Mahendra Singh. Bishambhar and Ram Charan hurled abuses at her.” At no point of time in the FIR. is there any reference of any injury having been caused to her. However, she was also medically examined on 24-5-1978 at 9.30 A.M. when the doctor, as noted above, found that she did not have any ostensible injury but was complaining of pain on her back and chest. In the examination-in-chief she was made to stale that (Translation by Court) “The accused pointed out towards me and said-today she will be taught a lesson for lodging report against us. They started hurling abuses on me and they grappled with me. She again says in paragraph No. 17 (Translation by Court). “I was also beaten by slaps, kicks and fists by Bishambhar, Rambhajan, Sheodan, and Rain Charan. She again said these fists and slaps were caused by Bishambhar, Sheodan and Ram Charan. Initially all the five accused grappled with me and in that process they abused me. I did not notice their weapons. I was trying to save myself, that is why I could not notice about their individual weapons and whether they had kept those weapons on the ground at that time or not.” In paragraph No. 18 she says (translation by Court). “None of the accused had grappled with me and the initial statement made by me today saying that all the appellants had caught hold of me was wrong. “In paragraph No. 19 she has said that (translation by Court). “Many injuries were caused because of the attack on me by kicks and fists and slaps which I had shown to the doctor. I had written in the report that I was beaten by kicks and lists and slaps; when the report was read out to the witness and it is pointed out that it was not written in it she said that it may have escaped my attention at that moment to keep this point mentioned in the FIR.”
32. It is, therefore, obvious that PW-I, Sohanbiri is not coining out with the correct manner of the origin of the Marpit. It may be again noted here that this Gher is also the Gher of Bishambhar and all the parties in this case are closely related, there was no ostensible reason for the incident to happen in the manner as alleged in the FIR and in any case no explanation of the injuries sustained by Rambhajan appellant makes the origin of the Marpit a doubtful proposition.
33. Another factor of vital importance is that the doctor who conducted the post mortem examination has said that the injuries sustained by deceased Puran may well have been caused by knife. It is, therefore, doubtful, whether Puran had received any Pharsa injury. In any case three other appellants, namely, Bishambhar, Sheodan and Rambhajan do not appear to have caused any injury on any of the persons on the prosecution side and, therefore, this factor also goes to affect the eye-witness account furnished by these three prosecution witnesses.
34. On the facts and circumstances of the present case it is to be .held that the statement of two appellants, namely, Shcodan and his son Rambhajan is prima facie supported by the injuries sustained by Rambhajan which has been duly proved by DW-I. Dr. H. U. Zuberi. The manner of assault as suggested by these two appellants are amply corroborated by the application which was moved by Rambhajan with the Superintendent of Police, Bulandshahr on the next day of the incident. Under the circumstances the defence theory has also been probabilised.
35. In view of the aforesaid discussion it cannot be said that the prosecution case has been successfully proved beyond reasonable doubt against appellants and, as such, the appellants are entitled to the benefit of doubt.
36. The appeals consequently succeed and are allowed. The conviction of appellants Rambhajan. Bishambhar, Sheodan, Ram Charan and Mahendra under Section 302/149 I.P.C. 323/149, 147 and 148 I.P.C., and the sentences awarded to them by the learned trial Judge are set aside. They are acquitted of the charges framed against them. They are on bail, they need not surrender and their bail bonds are discharged.