JUDGMENT
K.S. Gupta, J.
(1) Narain Singh and Balwan Singh have filed Criminal Appeal No. 111/92 while Khem Chand has preferred Criminal Appeal No. 135/92 against the judgment dated July 8, 1992 of an Additional Sessions. Judge convicting them under Sections 302/34, 307/34 Indian Penal Code and the order of even date sentencing them to imprisonment as under :
(I)Under Section 302/34 IPC-rigorous imprisonment for life and a fine of Rs. 500.00 each. In default of payment of fine, each of them is to further undergo rigorous imprisonment for three months:
(II)Under section 307/34 IPC-rigorous imprisonment for three years and a fine of Rs. 200.00 each. In default of payment each of them is to further undergo rigorous imprisonment for two months:
(III)Under section 323/34 IPC-rigorous imprisonment for one year and a fine of Rs. 100.00 each. In default of them is to further undergo rigorous imprisonment for one month.
KAPTANSingh, Hoshiar Singh, Mst. Bala, Raj, Kamla, Omvati and Mahindro. who were tried along with the three appellants, were acquitted of the charges under sections 147, 148, 302/149 &323/149 Indian Penal Code Appellants too were acquitted of the Charges under Sections 147 and 148 Indian Penal Code in terms of the impugned judgment.
(2) As both the appeals arise out of the same judgment and order, we propose to dispose them of by this common judgment.
(3) On July 24, 1982, it is alleged by the prosecution, information received through telephone about a quarrel in village Bamroli was recorded in Daily Dairy at Sr. No. 16 and a copy thereof Ex. Public Witness 16/A was made over to Hc Ballu Singh Public Witness 16 for action. He along with Constable Mahipal Singh Public Witness 4 reached the place of occurrence and found Raj Karan. Attar Singh, Khazan Singh Public Witness 5, Tariff Singh Public Witness 6 and Vinod Public Witness 9 lying in injured condition on the road side. Police van reached there and in that van injured were removed to Safdarjang Hospital. In the hospital, Raj Karan and Attar Singh were declared dead. Si Rattan Singh Public Witness 29 who in the meantime reached Safdarjang Hospital from the place of occurrence, recorded the statement of Khajan Singh S/o Jug Lal one of the injured-Ex P.A. English translation of the statement reads : “I retired from Haryana Police and I am residing with members of my family in the village. Members of my family Raj Karan, Attar Singh, Tariff Singh, Vinod and others are agriculturists. Khatta of the land is shamlat. About 27/28 years ago my brother Mehar Singh purchased a piece of land measuring 3 Bighas 16 Biswas from Hoshiar Singh. This piece of land falls within the land of Hoshiar Singh and is an ancestral land. Since the beginning about one bigha of land was in our possession. For some time there was some dispute about that land with Hoshiar Singh and members of his family and case was pending in the court of Sdm Punjabi Bagh and the Revenue Officer. Since it had rained I along with my brother Raj Karan. Attar Singh. Vinod Kumar and Tariff and the tractor went to plough the land at about 9.30 A.M. We ploughed the land. In the mean time, Narain Singh, Balwan Singh, Khem Chand and Kaptan Singh armed with two pruned jailies came there shouting ‘AAJ Inko Jane Nahin DENGE. Jaan Se Maar DO’ and attacked us, Raj Karan and all of us were unarmed. Narain Singh, Balwan Singh, Khem Chand and Kaptan Singh attacked us. Narain Singh and Balwan Singh caught hold of Raj Karan while Khem Chand attacked Raj Karan in his chest. Kaptan attacked Attar Singh in his neck with his jaili. The moment I, Tariff and Vinod came to their rescue. Hoshiar Singh, Bala W/o Balwan, Raj W/o Khem Chand. Kamla W/O Ved Prakash, Omvati W/O Jagir, Mahindro D/o Sardar Singh came armed with lathis. Hoshiar Singh attacked me on my back and left shoulder with a jaili while Khem Chand attacked Tariff with a jaili. He tried to stop it with his arm. Balwan Singh attacked Vinod Kumar in his abdomen with two pruned jaili and injured him. Ladies also attacked everyone of us with lathis and kicks. We shouted Bacho, BACHO. In the meantime, Umed Singh S/o Chandgi Ram who was working and Mehar Singh S/O Jug Lal also came and witnessed the incident. All of them showed jailies to them and threatened them to keep away. We were all badly injured and fell on the road after coming from the field. Some unknown person informed the police. In the official van I, Raj Karan, Tariff Singh, Vinod and Attar Singh were brought to the hospital and got admitted. As a result of the injuries, on the way Attar Singh died and after reaching the hospital Raj Karan breathed his last. Narain Singh, Balwan Singh, Khem Chand, Kaptan Singh and their ladies in order to kill us have attacked us and have murdered Attar Singh Raj Karan. Proceedings be initiated.”
(4) After making endorsement Ex. Public Witness 29/A said statement Ex.PA was sent by Public Witness 29 to the police station and on the basis thereof Fir (carbon copy Ex Public Witness 22/A) was recorded by Hc Mehtab Singh Public Witness 22. Public Witness 29 lifted blood stained earth, rori and also sample earth and rori from the road side and after converting them into separate parcels and sealing with the seal of ‘RS’ took them into possession video memo Ex. Public Witness 7/A. Rough site plan Ex. Public Witness 19/B was also prepared by Public Witness 29.
(5) It is alleged that pursuant to the secret information, Mst. Bala, Raj, Kamla, Omvati and Mahindro were apprehended from the maize field on 24.7.82 itself. Mst. Bala made a disclosure statement Ex. Public Witness 7/D and in pursuance thereof she got recovered 3 jailes Exs. Pl to P3 and 5 lathis Exs. P4 to P8 from the maize fields. Jailies were sealed with the seal of ‘RS’ and seized vide memo Ex. Public Witness 7/F. Remaining accused were also secured thereafter.
(6) After completing inquest proceedings, dead bodies of Raj Karan and Attar Singh were sent for autopsy and the post mortem was conducted by Dr. L.T. Ramani Public Witness 21 on October 25, 1982. Ex. Public Witness 21/A is the post mortem report relating to Attar Singh while Ex. Public Witness 21/C is the autopsy report pertaining to Raj Karan deceased. Mlc Exs. Public Witness 2/A, Public Witness 3/A and Public Witness 27A relating to Khajan Singh, Vinod and Tariff Singh respectively were collected from Safdarjang Hospital by Public Witness 29.
(7) On September 10, 1982, Si Devinder Singh, Draftsman, Public Witness 19 was taken to the side and Ex. Public Witness 19/A is the scaled site plan prepared by him on the pointing out of Mehar Singh Public Witness 7 and Umed Singh Public Witness 8. Material exhibits were sent to Cfsl and on receipt of report from there challan was filed against the accused persons.
(8) In the statement under Section 313 Criminal Procedure Code . in answer to Q.No. 4 Khem Chand, one of the appellants, stated that one bigha of land comprising in 523 min. belongs to them and on the date of occurrence their crop was standing on that land. Opposite party had lost all the cases. In answer to Q.No.7 he further stated that on the day of occurrence opposite party tried to enter their field along with the tractor. To begin with, Narain Singh and Hoshiar Singh accused told them not to enter their fields. However, the opposite party attacked and injured Narain Singh and Hoshiar Singh went away from the that place. He and Balwan Singh arrived there and even on their asking, they wanted to enter their fields. Jalies were lying there. He and Balwan singh picked two Jailies from the fields and attacked the opposite party with the jailies which were also used as lathis by them from the wooden side in self-defense. The tractor was kept near their fields and near the road.
(9) Likewise is the plea taken in defense by appellants Narain Singh and Balwan Singh in their statements under Section 313 Criminal Procedure Code .
(10) Argument advanced on behalf of the appellants in both the appeals was that the case of the prosecution, inter alia, is that the occurrence in question took place in one bigha of land forming part of 523 min but the rough site plan Ex. Public Witness 29/B prepared by Si Rattan Sigh (I.O.) Public Witness 29 as well as scaled site plan Ex. Public Witness 19/A prepared by Si Devinder Singh. Draftsman Public Witness 19 indicate that the same, in fact, took place in field No. 525 belonging to one often appellants Balwan Singh near the road and the prosecution has thus shifted the venue of occurrence. Khazan Singh Public Witness 5. Tariff Singh Public Witness 6, Mehar Singh Public Witness 7, Umed Singh Public Witness 8 and Vinod Public Witness 9 are the purported eye witnesses and Public Witness s 5, 6 and 9 are also stated to have received injuries in the occurrence. On the point at hand, Public Witness 5 in his examination-in-Chief has deposed that his brother Mehar Singh purchased a plot of land about 27/28 years back from Hoshiar Singh, one of the accused; that there is one more bigha of land belonging to him adjoining that plot of land and litigation was going on in between him and Hoshiar singh regarding that one bigha land in the courts of Sdm and Revenue Officer. On 24.7.82 at 9.30 A.M., he along with Raj, Karan, Attar Singh, deceased, Tariff and Vinod went to plough their fields with the aid of tractor and they ploughed the fields. In cross-examination he has denied the suggestion that on that day the tractor was not allowed to reach upto one bigha of land or to pass through the fields of the accused persons. In fact, the tractor reached the disputed land in that process it has passed through the fields of the accused persons, Public Witness 6 has deposed that they were ploughing their fields with tractor on 24.7.82 at 9.30 A.M. and his father Khazan Singh, brother Attar Singh, uncle Raj Karan were also with him at that time including Vinod. In cross-examination he has stated that the disputed land measuring one bigha and the land measuring 3 bighas and 16 biswas are part and parcel of the same field. Public Witness 7 has testified that on the date of occurrence their tractor on coming from pucca road had entered in the agricultural land of Balwan Singh and from there it had gone to their fields. Quarrel took place on their agricultural land. Public Witness 8 has also deposed that it was an occurrence of 24.7.82 at about 9.30 A.M. Raj Karan, Attar Singh, Vinod, Khazan Singh and Tariff Singh came with a tractor to plough their agricultural land lying near the fields where he and Mehar Singh were working Khazan Singh etc. worked in their fields for about an hour. It further in the deposition of Public Witness 9 that the agricultural land where the occurrence took place belongs to Mihar Singh who purchased it 22/23 years back from Hoshiar Singh and others. That field measures 3 bighas and 16 biswas. Area of one bigha more was in Mehar Singh. On 24.7.82 at about 9.30 A.M. he, Khazan Singh, Raj Karan, Attar Singh, Tariff Singh went to the said agricultural fields of the Mehar Singh along with a tractor to plough. In the said land Tariff Singh was running tractor and ploughed at for about an hour. During that one hour other persons including him were picking up the fossils of grass. Thus, Public Witness 5,6,7,8 and 9 fix the place of occurrence at one bighas of land of field no. 532 min.
(11) Coming to the two site plans Ex. Public Witness 29/B and Ex. Public Witness 19/A. Si Devinder Singh, Draftsman Public Witness 19 has deposed that on 10.9.82 he visited the place of occurrence in village Bamroli and took measurements and notes on the pointing out of Mehar Singh and Umed Singh who were also present there. On the basis of those notes, he prepared scaled site plan Ex. Public Witness 19/A on 19.9.82 and the marginal notes thereof excepting those in red ink are in his hand. Public Witness 7 Mehar Singh, one of the persons at whose pointing out scaled site plan Ex. Public Witness 19/A was alleged to have been prepared, in cross-examination has admitted having pointed out to the draftsman the spot where the quarrel had taken place and the injured persons fallen.
(12) Si Rattan Singh (I.O) Public Witness 29 author of the rough site plan Ex. Public Witness 29/B has stated that he prepared Ex.PW29/B with its marginal notes. It is in the cross-examination of Khazan Singh Public Witness 5 that he had shown to the police the place of occurrence where the quarrel took place. It is further in the cross-examination of Mehar Singh Public Witness 7 that the police had drawn the site plan at the spot in his presence and at his pointing out. Obviously, rough site plan Ex. Public Witness 29/B with its marginal notes too was prepared by Public Witness 29 on place of occurrence being pointed out by Public Witness s 5 and 7 during investigation.
(13) Whether a site plan drawn to scale by a draftsman and also a rough site plan based on the statements made by the witnesses to the I.O. would at all be admissible in evidence, came to be considered by the Supreme Court in the authorities of Santa Singh vs. State of Punjab Air 1959 Sc 526 and Tori Singh Vs. State of U.P. . It was held that a plan drawn to the scale is admissible if the witnesses corroborate the statement of the draftsman that they showed him the places and would not be hit by Section 162 Criminal Procedure Code . However, the site plan prepared by the I.O. based on the statements made by the witnesses was ruled out as inadmissible under Section 162 Criminal Procedure Code . Indisputably Si Rattan Singh Public Witness 29 was not present at the time the occurrence took place and the place of the incident as being field No. 525 was depicted by him in the rough site plan Ex. Public Witness 29/B particularly on the basis of the information elicited from Public Witness s 5 and 7. That being so in view of the law enunciated in both the above authorities, rough site plan Ex. Public Witness 29-B qua the place of occurrence is inadmissible in evidence under Section 162 Criminal Procedure Code . and, therefore, cannot be taken note of while deciding the controversy at hand. However, the scaled site plan Ex. Public Witness 19/A is admissible in evidence. In Ex. Public Witness 19/A place of occurrence has been shown at point A in field NO. 525 belonging to appellant Balwan Singh. Points B and C in Ex. Public Witness 19/A indicate the places from where Mehar Singh Public Witness 7 and Umed Singh Public Witness 8 witnessed the occurrence. Attar Singh, Raj Karan deceased, Khazan Singh and Tariff Singh have been shown to be lying in injured condition at point D while Vinod is shown to be lying injured at point E therein at the time Si Ballu Singh Public Witness 16 reached that place on receipt of copy of Daily Dairy No. 16. Disputed one bigha land of 523 min as per this scaled site plan lies towards west of said field No. 525. Incidentally this scaled site plan coincides with the rough site plan Ex. Public Witness 29/B particularly in regard to the location of the place of occurrence being in field No. 525 obviously, the scaled site plan Ex. Public Witness 19/A depicts No. 16 was recorded at 4.00 A.M. at Police Post Bijwasan in Ps Najafgarh. It is in the deposition of Public Witness 16 that he received the copy of the said Daily Diary within three minutes after it was recorded and it took him about 45 minutes to reach the spot along with Constable Mahipal Singh. According to him, immediately after his arrival there, a police van came and all the five injured were taken by him in that van to Safdarjang Hospital. On the point of absence of blood at both the said places. Khazan Singh Public Witness 5 stated that all of them sustained injuries and bled profusely. However, he cannot say as to whether the blood fell at the place of occurrence or not. Lot of blood fell on the road where the injured persons fell down. Attar Singh and Raj Karan succumbed to their injuries on way to Safdarjung Hospital. Tariff Singh Public Witness 6 has stated that he did not observed as to how much blood came out of the bodies of the injured persons at the spot. Blood spilled on the ground. All of them ran and covered a distance of 50/60 paces to reach the road. It is in the deposition of Mehar Singh Public Witness 7 that when the jaili caused injuries on the neck of deceased Attar Singh, profuse bleeding had taken place. When the injuries in the abdomen and the chest with jaili were caused on the person of Raj Karan, those injuries bleeded profusely. Attar Singh and Raj Karan on receiving the injuries rushed to the road where they fell down. He did not notice as to whether from the injuries of Attar Singh and Raj Karan any blood dropped in between the place of occurrence and the road where they had falllen. Umed Singh Public Witness 8 has stated that on jailies being pierced blood started trickling down and soared the clothes of the injured persons. Within the disputed agricultural field no deep of blood could fall down. Injured persons passed through the dola and reached the road and he did not find any drop of blood on the dola through which the injured persons passed to the road. Vinod Public Witness 9 has testified that the fight took place within the disputed land at a distance of 15-20 feet from the dola of that field and from the injuries of the injured persons blood oozed out. Deaths of Raj Karan and Attar Singh on way to the Safdarjang Hospital in a police van after a short time of the occurrence clearly go to show that the nature of injuries suffered by both of them with jailies were serious enough and, therefore, in all probabilities they must have bleeded from their injuries at the place the occurrence took place. Blood of both of them must also have trickled down on the dola through which they passed to reach the road side. Khazan Singh Public Witness 5, Tariff Singh Public Witness 6 and Vinod Public Witness 9 too had received injuries with jailies and the blood from their injuries should have fallen at the place of incident and also the dola before they reached the road by the side of field No. 525. It is in the deposition of Public Witness 29 Si Rattan Singh(I.O) that he did not notice any blood in the fields. As noted above, none of the Public Witness s state that any blood fell either in the disputed one bigha of land of 523 min or the dola used fore reaching the road side from that place. Absence of blood at either of the said two places raises considerable doubt about the truthfulness of the prosecution case in regard to the occurrence having taken place in 523 min.
(14) It is pertinent to note here that case of the prosecution also is that by the time assault was made on the deceased. One bigha of disputed land of 523 min had ploughed with aid of tractor for purpose by them. It is the deposition of Public Witness 29 Si Rattan Singh (I.O.) that he had seen the disputed site and the crop was standing there. It was maize crop. One bigha of land was in dispute and that land was surrounded by the fields of accused persons and in the fields of the accused persons also there was maize crop. If one bigha of the disputed land had been ploughed, Public Witness 29 could not have seen the maize crop standing there after the occurrence.
(15) Relying on the decision in Bhagirath Vs. State of Madhya Pradesh , further argument advanced by the learned counsel for the appellants was that out of the 10 accused, 7 were acquitted of all the charges by the trial court disbelieving the role assigned to them in the occurrence in question and as the prosecutions further guilty of shifting the place of occurrence from one bigha of the disputed land of 523 min., the substratum of the prosecution story falls to the ground and the appellants too are entitled to be acquitted. Observations made in para 11 on page 977 of the said authority, which are relevant, read thus :- 11.”It is well settled that the prosecution can succeed substantially proving the very stroy it arises. It must stand on its own leges. It cannot take advantage of the weakness of the defense. Nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis.”
(16) Observations in Para No. 13 which too were relevant read :- 13."If Public Witness Balmukand was to be believed this solitary wound to Kashiram was caused by Gopal, the acquitted accused and not the appellant. (17) Thus from whatever angle the matter may be looked at, the prosecution had miserably failed to make out a case against the appellant. When the substratum of the evidence given by the eye- witnesses examined by the prosecution was found to be false, the only prudent course, in the circumstances of this case, left to the court was to through out the prosecution case in its entirety against all the accused."
(18) Acquitted accused numbering 7 are Kaptan Singh, Hoshiar Singh, Mst. Bala, Raj, Kamla, Omvati and Mahindro. Role attributed to Kaptan Singh in the occurrence was that he inflicted blows with a jaili to Attar Singh deceased. At the time of the incident, Kaptan Singh was employed as a Constable in Delhi Police and was posted at Ps Mandir Marg. Plea taken by him was that of alibi and while acquitting him that plea was accepted by the trial court. Role assigned in the occurrence to Hoshiar Singh, Mst. Bala, Raj, Kamla, Omvati and Mahindro was that they inflicted lathi blows to both the deceased and the injured. Hoshiar Singh was further alleged to have caused injuries to Khazan Singh Public Witness 5 after lifting the jaili put on the ground by Narain Singh appellant. Post mortem on the bodies of both Raj Karan and Attar Singh deceased was conducted by Dr. L.T. Ramani Public Witness 21 and in cross-examination he was emphatic by stating that none of the injuries on both the deceased was possible by the lathis Ex. P4 to P8. As per the prosecution lathis Ex. P4 to P8 wee used by the said acquitted accused. Mlc Ex. Public Witness 27/A relating to Tariff Singh Public Witness 6, in the absence of Dr. Sanjiv Dang, was proved by S.S. Rawat Public Witness 27 and that Mlc indicates that none of the injuries suffered by Public Witness 6 could have been caused with a lathi. Dr. Mamta Sharma Public Witness 2, who examined Khazan Singh Public Witness 5, two excluded the presence of lathi blows on the body of Public Witness 5, Mlc Ex. Public Witness 3/A pertaining to Vinod Public Witness 9 is in the hand of Dr. Arun Kumar Gupta Public Witness 3 and he too did not support the prosecution case in regard to lathi blows having been inflicted on the body of Public Witness 9. Further Khazan Singh Public Witness 5, Tariff Singh Public Witness 6, Mehar Singh Public Witness 7, Umed Singh Public Witness 8 and Vinod Public Witness 9 were confronted with their earlier statements recorded by the police where fact of picking up the jaili of Narain Singh appellant by Hoshiar Singh and attacking and causing injuries with that jaili to Public Witness 5 had not been recorded. Taking note of the above evidence, not only the said five ladies were acquitted but Hoshiar Singh too was exonerated of the charges under Sections 147, 148, 302/149, 307/149 and 323/149 Indian Penal Code in terms of the impugned judgment. From the discussion in the preceding paras it may be seen that appellants even if having not totally succeeded in demolishing the prosecution story in regard to the occurrence having taken place on disputed one bigha of land of 523 min have at least been able to create a reasonable doubt that land may be the place of occurrence. Considering this fact and also roles attributed in the occurrence to seven acquitted accused which were disbelieved by the trial court, the prosecution must be held to have to failed to substantially prove the very story it alleged in the statement Ex. Pa of Khazan Singh Public Witness 5, which was the basis for initiating action against the acquitted accused and also the appellants. Also taking note of the ratio in Bhagirath’s case (supra). In the circumstances of this case, only course open to us is to throw away the prosecution case in its entirety including against the appellants.
(19) For the foregoing reasons, both the appeals are allowed, Impugned judgment and order are set aside and the appeallants, who are on bale, are acquitted of the charges under Sections 302/34, Indian Penal Code, 307/34, Indian Penal Code and 323/34, IPC.