ORDER
1. The state is in appeal against the order of acquittal passed by the High Court of judicature at Allahabad.
2. The learned first additional sessions judge, Shahjahanpur, convicted the accused persons under Section 302/149 of the Indian Penal Code and sentenced each of them to life imprisonment and further convicted them under Section 323/149 of the Indian Penal Code and sentenced each of them to one year's rigorous imprisonment with a fine of Rs. 500/- each together with a default clause.
3. There is some confusion as regards inclusion of Section 149 of the Indian Penal Code and the High Court, however, clarified it in its judgment even at the introductory stage that in fact accused persons were tried under Sections 302/34 and 323/34 of the Indian Penal Code.
4. The contextual facts depict that the deceased one Durjan and two injured Churai and Shri Ram, PW. 4 and four appellants used to reside in village Indalpur, which is about 4 and a half miles from the police station Banda, district Shahjahanpur. Accused Nathu and Ram Bilas are brothers and sons of Gaya Datt and accused Raja Ram and Ram Kishan are also brothers (cousin) and sons of Ram Swarup. Admittedly, there is no motive involved in the matter.
5. The factual backdrop records that on 14.3.1978 at about 2.00 p.m. Shri Kishan, PW. 3, was digging earth with a spade from the land of Gaon Samaj at a place about 50 paces to the south of his house. It has come in evidence that the land in question was being used by the villagers to keep their 'gongas' and while Shri Kishan was in the process of digging, accused Nathu and Ram Bilas came there and protested that question of digging any earth therefrom would not arise. This, however, infuriated PW. 3 Shri Kishan and there was some altercation. Thereafter, however, the two brothers Nathu and Ram Bilas went away towards the house and after a short while the two brothers (Nathu and Ram Bilas) together with two others armed with lathis were seen coming in front of the house of Durjan and Churai. It is at that place certain altercation also took place because Durjan threatened them not to proceed. It is true that during altercation some lathi blows were also exchanged rendering Durjan injured and on the alarm being raised by Churai, Shri Ram, PW. 4, the son-in-law of Durjan and some villagers also appeared at the scene of occurrence and challenged the accused. The accused thereafter went away leaving, however, injured Durjan there who subsequently succumbed to his injuries.
6. The learned session judge on this set of facts came to the conclusion as regards the guilt of the accused persons. The injuries said to have been inflicted by the accused persons to Durjan were described as below:-
'1. Lacerated wound 1 1/4 cm. x 1/4 cm. x bone deep, center of skull.
2. Lacerated wound 2 cm. x 1/4 cm. x bone deep, right temporal region.
3. Bruise 4 1/2 cm. x 3 cm. left temporal region.
4. Bruise 4 1/2 cm. x 1 1/4 cm. outer side of the right arm, 8 cm. below the shoulder.
5. Abrasion 3/4 cm. x 1/4 cm. at inner and of left eye brow.
6. Abrasion 1 cm. x 1/4 cm. back of left forearm 6 cm. below the left elbow.'
7. Incidentally, Churai was also found to have received some injuries so also Shri Ram. It was, thus, admittedly a fight ensued after the altercation. The learned sessions judge considering the aforesaid evidence on record came to a conclusion as regards the guilt of the accused persons and sentenced them to life imprisonment under Section 302/34 of the Indian Penal Code (as corrected by the High Court).
8. Against the order as aforesaid, the High Court, however, negatived the same and acquitted the accused persons recording therein that the prosecution has not been able to disclose correctly the very origin of the 'marpeet' which resulted into the death of Durjan. Neither the exact place of occurrence has been disclosed by the prosecution. Significantly, be it noted that though there was recovery of the blood soaked earth, but the same was not sent for chemical examination. This failure to obtain the report of the chemical analyser has been strongly taken exception to by the High Court. We cannot also but lend our concurrence to the same since that would have definitely advanced the case in support of the prosecution. Admittedly, Gaya Datt being the father of the accused persons and respondent No. 1, also suffered injuries caused by the spade in the hands of P.W. 3. In answer to question No. 7 put to the accused - Nathu under Section 313 of the Code of Criminal Procedure, the accused stated as below:-
'PRASHNA 7. TUMHE KUCH AUR KAHN HAI,
UTTAR: MA I MERA BHAT MAN WAS BAAP APKE KHET PAR KAM KAR RAE THEY. HAM SAB LOG APNA KAM CHORKAR GHAR LO AA RAHE THE. HAMARE PITA MATA AAGE THEY. HAM UNKE PICHE THEN JAB WOH LOG GRAM SAMAJ KI ZAMIN PAR PAHUNCHE TOWAHA PAR DURJAN SHRI KISHAN, CHURAI MITTI KHOD RAHE THE. USNE KAHA Kl YAHA HAMARA BHUSE KA GOONGA RAKHA JATA HAI. TUM LOG TAL SE MITTI KHOD LO. UNHONE YEH KAMA HAM YAHAN MITTI KHODEGEN JAROOR. PHIR BAAT CHEET HONE LAGI. PHIR DURJAN NE HAMARE PITA JI KE PHANAR MARA. SRI KISHAN VA CHURI NE MERE MAN VA BAAP KE LATHI MARI. HAMARE PITA JAMIN PAR GIR GAYA AUR USKE SAR SE KHOON BAHNE LAGA. HAMARA BAAP-CHILLAYA HUM DONO BHAI MAIN VA RAM BILAS BHAG KAR AAYA AUR KAMA HAMARE PITAJI KO MAT MARO WOH NAHIN MANE. HAM DONO KE PASS 2, 2-1/2 HAATH KE DANDA THE. HAMNE PITA KE BACHAO MEN DANDE CHALAYE. USE SE DURJAN KO CHOT AAI. PHIR HAM APNE PITA KO GHAR LAD KAR LEGAYE.'
9. Similarly, Ram Bilas in answer to question No. 7 made the following statement recorded under Section 313 of the Code of Criminal Procedure:-
'UTTAR: HAMARE PITA NE KAHA KI YAHAN HAM MITTI NAHIN KHODNE DENGE. HAMARE PITA NE KAHA Kl MITTI TAL SE KHODI LO. TABHI DURJAN NE MERE PITA KE SAR MEN PHAWRA MARA, SHRI KISHAN VA CHURAI DURJAN MERE MAAN BAAP KO MARNE LAGE. HAMARE MAN BAAP CHILLAYE. HIME LOG 25-30 KADAM PICHEY AA RAHE THEN. HUM PAHUNCHE AUR KAHA Kl HAMARE MAAN BAAP KO NA MARO. WHO LOG NAHIN MANE AUR HAMARE MAAN BAAP KO MARTE RAHE. HUM DONO KE PASS DANDE THE. HUMNE BHI PHIR MAAN BAAP KO BACHANE KE LIYE DANDA CHALAYA. CHURAI VA DURJAN KO CHOT AAGAI. PHIR HUM APNE MAAN BAAP KO LADI PAR GHAR LAD LEGAYE.'
10. The High Court in its judgment has laid much emphasis on the injuries of Gaya Datt and as such it will be convenient to note the same.
' 1. Lacerated wound 5.5 cm x muscle deep on the left side of head 10 cm. above the top of the left ear.
2. Incised wound 25 cm. x 2.5 cm. x skin deep on the back of the right fore arm middle of the right fore arm middle part.
3. Complain of pain on the outer and middle of the right thigh. No sign of external injury.'
11. While it is true that the doctor opined that they are simple injuries and admittedly there is a further first information report two days later by Gaya Datt but the fact remains that there exists no contra evidence on record to show that the said injuries were suffered under any other circumstances or on occasions excepting the one which involved the accused persons in the first instance, as noticed hereinbefore.
12. The injuries stand suffered by Gaya Datt in the same incident and cannot be said as the very nature ascribes self-inflicted one.
13. Incidentally, Shri Kishan in cross-examination stated as under:-
'CHURAI DURJAN NE MOLZIMAN KO HAATH PAKAR KAR NAHI ROKA BALKI SIRF ITNA KAHA Kl WAHAN MAT JAO LARAI JHAGRA MAT KARNA. ITNE MEIN IN LOGON NE MARNA SHURU KARDIYA. DURJAN VA CHURAI KHALI HAATH THE JAHAN MAIN GADDHA KHOD RAHA THA VAHAN SE POORAB NEW YAH MARPIT HUI. KUL 5-6 MINUTE WAHA PAR MAAR PIT HUI.'
14. Such a statement however, does not seem to be conveying the true state of affairs existing on the date of occurrence and the High Court categorically recorded that the same has not attained the standard of belief or to a certainty. We also record our concurrence therewith and thus the statement cannot stand to be convincing at all. If the said statement does not stand convincing then in that event however one can safely conclude thatPW. 3 has not unfolded the truth pertaining to the origin of the 'marpeet' and thus there has been, to some extent, suppression of certain facts which makes the prosecution's story doubtful. It is this doubt which has prompted the High Court to negate the judgment of the learned sessions judge and we also feel it expedient to record that there exist some doubts as regards the true nature of the incident and the defence has been able to establish the doubt and in the view as above, question of any other order than what was passed by the High Court would not arise.
15. The appeal thus fails and is, therefore, dismissed. Bail bonds shall stand discharged.