JUDGMENT
V.G. Palshikar, J.
1. These appeals are directed against the judgment of conviction recorded by the learned Sessions Judge, Jalore, dated 14-5-1985 in Sessions Case No. 71/83, convicting the accused appellants Ukarda and Jawana for imprisonment for life under Sections 147, 148, 149, 447, 323 and 302 of the Indian Penal Code and also convicting accused appellant Narsa under Section 324 of the Indian Penal Code and sentencing him ot rigorous imprisonment for a period of two years.
2. The prosecution story in brief is that on 12-11-1983, in the afternoon, deceased Prabhu allegedly went to the field of Ukarda, one of the accused appellants, where he is said to have been assaulted by the accused appellants, which resulted in his death.
3. The prosecution has examined 13 witnesses in support of its case of murder of Prabhu Lal by the accused with the common object of so killing him. Reappreciation of this evidence is necessary as the same was urged by the learned counsel for the appellant, who took us through the entire evidence and has critically commented upon the deposition of each witnesses. According to him, the witnesses are not trust-worthy, there are discrepancies in the evidence of each witnesses and, therefore, the evidence is liable to be rejected. In order to appreciate this contention, it will be necessary to again scrutinise the evidence in light of the criticism made by the learned counsel.
4. P.W./1 Hansaram is a nephew of the deceased Prabhu. He has stated that he, along with Karmo and another, went to cultivate his field. Prabhu the deceased, gave food to Jabra who started eating. The witness, Karmo and Narna were cultivating and Prabhu went to the fencing of the field. When they heard shouts of Prabhu, they ran towards the boundary and saw accused Jawana, Ukarda, Narsa, Bojla and Jawana S/o Uda beating Prabhu. The witness then states that Jawana used ‘lathi’, Ukarda used ‘mogri’, Narsa used ‘phawda’ and Bojla had ‘mogri’ in his hand and second Jawana S/o Uda also had ‘mogri’ while assaulting the deceased. When Jabara reached the spot, accused Jawana hit him with ‘lathi’ and, therefore Jabara ran towards the village. The witness was also threatened by the accused, he then states that after beating, all the five accused dragged Prabhu to their field and again beat him there. This witness is said to be disbelieved on the ground that the ‘Moka Panchnama’ does not show dragging marks. According to the learned counsel the theory of dragging is, therefore, of marked improvement. The learned counsel drew our attention to the statement in cross-examination:-
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5. According to the learned counsel, if he was dragged the clothes are bound to be torn. We do not agree with this submission, as such may not be necessarily a result of dragging. The learned counsel also pointed out some other discrepancies, which according to him, shake the testimony of this witness.
6. We have given our careful considerations to these submissions. However, we see no reason to disbelieve this witness as he is natural eye witness to the occurrence and has truthfully deposed whatever he saw.
7. P.W./2 is Karmo, who along with others had gone to cultivate their field. In the afternoon, states the witness that food was brought by Prabhu for Jabra and when he started eating, the witness heard shouts from Jabra. The witness saw Jabra running towards the boundary, hence the witness also went towards the boundary and saw accused Ukarda, his brother-in-law Jawana, Bojla, Narsi and Jawana, S/o Uda beating Pradbu with ‘lathi’ and ‘mogri’. This witness states that Ukarda had ‘mogri’, Jawana had ‘lathi’, Bojla had ‘mogri’. Narsi had ‘Phawda’ and second Jawana had ‘mogri’. He, thus, corroborates in all particulars P.W./1 Hansaram, who was another eye witness. He also speaks of Jabra being injured by the accused persons when he tried to save Prabhu. He also deposes that the accused thrashed the deceased for quite some time and dragged him to his field. The witness then states that police arrived on the scene and at that time the accused were present in the field. The witness has truthfully stated in his cross-examination that the accused were beating the deceased continuously and, therefore, he was unable to attribute any specific blow to any specific accused. He has frankly admitted his inability to state the manner in which Prabhu was dragged to the field of the accused. He has said that he did not see the accused persons beating Prabhu in their own field. This is sought to be claimed as contradictory to P.W./1. The witness appears to have been said so in his police statement also. This of course is a contradiction but is of a minor nature and cannot result in the witness being disbelieved. There is no reason why this witness should state falsely against the accused. We are unable to agree with the learned counsel that this witness is liable to be disbelieved.
8. PW/3 Narna is the third eye-witness, brother of PW/2 Karmo, who generally corroborates what has been stated by the two earlier witnesses. He is said to be disbelieved on the ground similar in nature and for the reasons stated for disbelieving PWs/1 and 2. We believe this witness also.
9. PW/4 Jabra, yet another eye-witness. He is the person who saw the entire incident. He is the person who was beaten up by the accused and then ran away towards the village to seek police aid. He returned to the field with the police. This witness himself was injured in the incident. No substantial reasons have been forwarded by the learned counsel in support of his claim that the witness should be disbelieved. On totality of appreciation of the evidence, we find, the witness is duly corroborated by other witnesses. There is sufficient and material corroboration of all the four eye-witnesses who have truthfully disclosed the incident as it occurred on 12-11-83.
10. PW/5 is Choutha Ram, Police Constable. He was present in the police station when Jabra, s/o Chhoga lodged the complaint that his uncle Prabhu is being beaten up. This witness then proceeded to the field where the assault took place. This witness has stated that when he reached the field the accused were working in their field and ran away when they saw the police. He has also stated that he did not run after the accused as the condition of injured Prabhu was very serious.
11. PW/6 is Dr. Raj Singh Bhandari, who conducted the post-mortem. He has witnessed to about 33 injuries caused to the deceased. According to him, the death was caused due to these injuries.
12. PW/7 Hanwant Singh is the Sar Panch and was called as a Panch to the spot Panchnama and ‘Panchnama’ of the dead body. This witness has deposed in his cross-examination that he did not see any blood in the field of Prabhu. The learned counsel submitted relying on this admission that the other witnesses are liable to be disbelieved on the ground that they are stating falsely that Prabhu was beaten in his own field because no blood was found therein. We are unable to accept this contention for the reason that those eye-witnesses have nowhere stated that bleeding injury was caused to Prabhu when he was beaten in his own field. Apart from that non-existence of blood in the field is immaterial. ‘
13. PW/8 is Amar Singh, who was Thana Incharge and he registered Crime No. 59/83 and directed Constable Choutha Ram to immediately investigate.
14. PW/9 is again another Panch witness and nothing turns on this witness. PW/10 Prabhu Ram is Head Morir and Incharge of Malkhana. He has deposed about the articles sent by him for analysis to Jaipur Laboratory.
15. PW/11 is the person who took those items for analysis. PW/12 is a Panch-witness to the recoveries made and PW/13 is the Investigating Officer. Thus, it will be seen that the prosecution has beyond reasonable doubt, proved the involvement of the accused in commission of the crime, for which they are convicted.
16. It is, however, the submission of the learned counsel for the accused that the entire prosecution story is liable to be discarded for the reason that the First Information Report itself is a fabricated document. The original complaint was substituted and the names of accused persons have been falsely inserted. This submission is based on the allegation that several things find no mention in the First Information Report. It is admittedly proved on record that the Report was re-written and, therefore, it is acceptable to believe that the Report was substituted. We are unable to agree with this contention for the reason that merely because the complaint was re-written at the instance of the person who lodged the report, it cannot be said that the entire document is fabricated. There is no earthly reason for the witnesses to do so. It was then contended by the learned counsel that the prosecution has failed to give genesis of the occurrence. According to him, the complete story as it happened on that day, is not coming forth from the evidence of the eye-witnesses, particularly when the contradictions in their evidence are material. We have already appreciated this contention and held that the eye-witnesses are trustworthy and liable to be believed. There is no material difference on basic facts as to what took place and who was the assailants. The genesis is, thus, proved to the core. It was then contended by the learned counsel that in view of the factual acquittal of few persons it cannot be said that the beating was done as a matter of common object of the unlawful assembly. According to the learned counsel, the conviction of the other accused, in the circumstances, is unsustainable in law. We are unable to agree with this argument for the reason that the acquittal has resulted because no participation is attributable to those acquitted accused. That does not absolve the liability of the present appellants who have been factually seen assaulting Prabhu and the assault has resulted in his death. No fault can be found, therefore, with this conviction.
17. It was then contended that the accused were found in the field. They had not ran away and, therefore, this conduct speaks of their innocence. It, however, needs to be noted that the accused did run away on the arrival of the police. It can also be said that the accused persons continued to squat in their field till the arrival of the police. Their remaining in the field or going away from there, is inconsequential.
18. Since we have believed the eye-witnesses account of the occurrence, the question of recovery of certain weapons becomes inconsequent. The submission made in this regard, need not, therefore, be considered.
19. The learned Public Prosecutor, opposing the arguments of the defence counsel, relied on the following decisions –
1977 Cri LR (Raj) 146, wherein it has been observed as under :-
“It will be too much to expect from such eye-witnesses, where a large number of persons attack a fallen victim, to state as whose blow fell on what part of the body of the victim. It was possible for the witnesses only to observe the incident and not details. The three eye-witnesses have attributed the act of assault to all the three accused appellants against the same deceased without particularising the part of the body on which the injuries were inflicted, the evidence of all these witnesses suffer from no infirmity and cannot be discarded.”
20. It will, thus, be seen that the witnesses are not liable to be disbelieved as no particular blow is assigned to a particular witness.
21. 1980 Cri LR (SC) 73, was then relied on by the learned Public Prosecutor. In that case, the acquittal of the accused was set aside. The Supreme Court, thus, affirmed the reversal of acquittal by the High Court. In the present case also, we are, therefore, fortified in affirming the conviction of the accused under Section 302, I.P.C. The conviction of accused-appellant Narsa under Section 324, I.P.C. is also confirmed.
22. In the result, there is no substance in these appeals and the same are, therefore, dismissed.