Jasraj Chopra, J.
1. This appeal is directed against the judgment of the learned Additional Sessions Judge No. 2, Sri Ganganagar dated 23-8-1989 passed' in sessions case No. 17 of 1988 whereby the learned Additional Sessions Judge has held the accused appellants Jamuram, Munshiram, Satnamchand, Kashmir Chand and Nanakram guilty of the offence under Section 302 and in the alternative of the offence under Section 302/149, IPC and has sentenced them to imprisonment for life together with a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for six months. They have also been held guilty of the offence under Section 148, IPC and have been sentenced to rigorous imprisonment for two years together with a fine of Rs. 200/- and in default, to further undergo two months rigorous imprisonment. Both the substantive sentences have been ordered to run concurrently.
2. The facts necessary to be noticed for the disposal of this appeal briefly stated are : that deceased Gulabchand, who happened to be a Panch of Gram Panchayat, Sardargarh from Manewala Ward and first informant P.W. 1 Sunderram are the real brothers and D.W. 1 Mst. Rajjo is their uncle's daughter. It is alleged that Mst. Rajjo's husband Chimbaram died and thereafter, she contacted Nata marriage with her husband's brother Munshiram. It is further alleged that Mst. Rajjo developed illicit relations with accused Jamuram and, therefore, she was under the influence of accused Jamuram and his brother Munshiram. Accused Jamuram prevailed upon Mst. Rajjo to institute a false case of rape against Munshiram son of Kaku, with whom she contacted the Nata marriage after the death of her husband Chimbaram. It is alleged that during investigation of that case, deceased Gulabchand disclosed this fact to the Investigating Officer that Mst. Rajjo has already done Nata marriage with her husband's brother Munshiram son of Kaku and, therefore, a FR was submitted in that case by the investigating agency. It is further alleged that on account of submission of this FR by the investigating agency, accused Jamuram and his party nurtured ill-will against Gulabchand.
3. It is alleged that on 25-5-1986 at about 9 am, deceased Gulabchand, P.W. 1 Sunderram and Lalchand son of Chabaram were standing in the village Chowk near the Johad (water pond). At that time, accused-appellants Jamuram, Munshiram, Satnam and Kashmir sons of Nibahuram and Nanakram son of Walia, all by caste Kamboj belonging to their village came there. Accused Jamuram and Munshiram were armed with Gandasies. Accused Satnam was armed with a Hockey and accused Kashmirchand and Nanakram were armed with Kassiyas. As soon as they spotted Gulabchand. (sic)muram told his companions that the enemy is standing and, therefore, he should be killed. On this exhortation, all the five accused-persons conjointly attacked Gulabchand. It is alleged that accused Jamuram struck a Gandasi blow on his head, by which, the blood started oozing out. Accused Munshiram struck a Gandasi blow on his left arm, by which, his arm was cut and the blood started coming out. On receiving these two injuries, Gulabchand fell down faceward and as soon as he fell down, it is alleged that accused Satnamchand, Kashmir Chand and Nanakram availed him with hockey and Kassiyas. P.W. 1 Sunderram and Lalchand cried 'Mar Diya Mar Diya'. On hearing this, Bhagwansingh son of Kansingh, Harichand son of Heeraram Kamboj came there running. Seeing them coming towards the place of the occurrence, all the five accused-persons ran away from the place of the occurrence.
4. It is alleged that after some time, Sarpanch Dalveersingh also reached the place of the occurrence. Thereafter, P.W. 1 Sunderram alongwith Bhagwansingh, Harichand and Dalveersingh shifted him to Suratgarh Hospital, where he was admitted in an unconscious position. An information about this admission of Gulabchand in the Hospital in an unconscious condition was sent to the S.H.O., Suratgarh vide Memo Ex. P13 by Dr. Sahiram, Incharge Medical Officer, Govt. Hospital, Suratgarh. Thereafter, the police went to the Hosppital and recorded the statement of P.W. 1 Sunderram at 1-20 p.m. Then, the police proceeded to the spot and inspected the site and also prepared the site plan Ex. P. 2 and site inspection memo Ex. P. 2A. On the basis of this information received from the Incharge Medical Officer, Govt. Hospital, Suratgarh, a formal FIR was drawn.
5. From the place of the occurrence, blood stained soil was recovered vide memo Ex.P. 3 and the controlled soil was recovered vide memo Ex.P. 4. A piece of Hockey was also recovered vide memo Ex. P. 5. The police also recorded certain statements of the witnesses. At about 10-45 p.m. on the date of the occurrence, it is alleged that the Incharge Medical Officer, Govt. Hospital, Suratgarh informed the S.H.O., Suratgarh that Gulabchand has died. On the basis of this information, the police registered the case under Section 302, IPC. Thereafter, the police went to the Hospital and prepared the Inquest Memo and Panchnama Lash. The police also recovered one blood stained Khesh, one blood stained turban and the clothes of the deceased. The postmortem examination of the dead body was also got conducted and the postmortem report has been marked as Ex.P. 15.
6. Thereafter, accused Jamuram has been arrested vide Memo Ex. P. 6 and accused Munshiram, Kashmirchand, Satnamchand and Nanakram have been arrested vide Memos Ex. P. 29 to 32 respectively. It is alleged that accused Munshiram gave information about the recovery of one Gandasi and accused Kashmirchand gave information about the recovery of one Kassiya and accused Satnamchand and Nanakram gave information about the recovery of one broken piece of Hockey and one Kassiya respectively vide Memos Ex.P. 33 to 36 respectively. On the basis of the information given by accused Jamurarn, one Gandasi has been recovered vide Memo Ex. P. 7. At the instance of accused Munshiram, one Gandasi has been recovered vide Memo Ex.P. 11 and the accused Kashmirchand got recovered one Kassiya vide Memo Ex.P. 12. One broken piece of hockey was recovered at the instance of accused Satnamchand vide Memo Ex. P. 37 and one Kassiya was also recovered at the instance of accused Nanakram vide Memo Ex. P. 38. All these articles which were recovered were sent for chemical and serological examination vide Memo Ex. P. 17 and the Chemical and Serological Examiner's report has been marked as Ex.P. 18. The broken wooden piece of hockey which was recovered at the place of the occurrence and the broken piece of hockey which was recovered from the custody of accused Satnamchand has been sent for forensic examination and its report has been marked as Ex.P. 19. The FR which was given by the police on the FIR lodged by Mst. Rajjo has been marked as Ex.P. 20.
7. After usual investigation, the case against the accused-appellants was challaned in the court of the learned Munsif & Judicial Magistrate, Suratgarh, from where, it was committed for trial to the court of the learned Addl. Sessions Judge No. 2, Sri Ganganagar, who charged the accused-persons of the offences under Sections 302 or in the alternative under Section 302/149 and 148, IPC. The accused-appellants did not plead guilty to the charges and claimed trial, whereupon, the prosecution examined as many as 9 witnesses in support of its case. The statements of the accused-persons were recorded under Section 313, Cr. P.C. In his statement, it was disclosed by accused Satnamchand that he was going from his house to the shop and Kashmirchand was with him. When they reached near the Johad (water pond), they found Gulabchand armed with a lathi and Om Prakash with a Kassiya. Munshiram son of Kaku was armed with a Gandasi. As soon as they saw Mst. Rajjo, Gulabchand told his companions that they should catch hold of her and should teach her a lesson for lodging a false report against them. She should be kept as wife of Munshiram son of Kaku. Thereafter, Om Prakash inflicted injuries to Mst. Rajjo with his Gandasi and Gulabchand also tried to beat her with his lathi. On this, they got enraged and in order to save the honour of Mst. Rajjo, he inflicted injuries with his Hockey to Guiabchand and Kashmir chand inflicted injuries to Guiabchand with his Gandasi, by which, he fell down. Thereafter, Hukmaram and Balveer arrived at the place of the occurrence and he left the place of the occurrence leaving the piece of broken hockey at the spot.
8. Accused Jammu has stated in his statement under Section 313, Cr. P.C. before the Court that he has been falsely implicated in the case. He is the Secretary of the Communist party of that area and he made several reports against the Police officials in the case of Bhagwan Debi. According to him, P.W. 9 Rajpalsingh who was investigating officer in that case was not doing correct investigation in that case. He has filed copy of his complaint which has been marked as Ex. D. 4. According to him, he has been falsely implicated in this case on account of this enmity. Accused Kashmirchand has also endorsed the statement of accused Satnamchand. He has stated that they have given beating to Guiabchand in order to save the honour of Mst. Rajjo. In his statement under Section 313, Cr. P.C., it was stated by accused Nanakram that on the date of the occurrence, on hearing the noise, he went to the Johad and found that Mst. Rajjo was injured and was lying on the ground. Accused Guiabchand was also lying on the ground in injured condition. Hukamaram and Balveer were there. He then brought Mst. Rajjo to his house along with the broken piece of hockey. Mst. Rajjo related the entire incident to him. He then took her to the Hospital and thereafter, went to make a report with the police but that report was not recorded. Accused Munshiram has stated that he did not participate in the occurrence.
9. In their defence, the accused-appellants have examined D.W. 1 Mst. Rajjo. After hearing both the parties, the learned Addl. Sessions Judge has decided the case as aforesaid and hence this appeal.
10. We have heard Mr. S. R. Bajwa; the learned counsel appearing for the accused-appellants, Mr. D.R. Bohra, the learned Public Prosecutor appearing for the State and Mr. R. S. Kang, the learned counsel for the complainant and have carefully gone through the record of the case.
11. In this case, the post mortem examination report Ex.P. 15 is an admitted document, which shows that Gulabchand had one incised wound with clear cut margine of the size of 1' x 1/2 x 1/4' on the middle of his left forearm radial side. He had also one incised wound of the size of 4' x 0.1' x superficial skin deep over right limbo sacral region which was vertically direct. In addition to this, there was an incised wound which was obliquely directed 2 3/4' x 1/2' x bone deep over left parietal region of skull. Margins of wound were clean cut, which was already stitched when the patient was alive. On opening the scalp muscles, clotted blood was found present under the left parietal region of scalp along with frontal region and anterior portion of the right parietal region. There was a fracture of the left parietal bone; measuring 2' x 1/3' x 1/4' extending'anteriorly over the frontal bone 3 1/2' and downwards and laterally 1 1/2' over the left temporal bone and the separation of right fronto parietal region. After opening the skull, clotted blood was found present extradurally and rupture of the membranes 1/2' long was there over left hemisphere of brain and clotted blood reddish in colour was found under the membrance and in the brain tissue also, it was there. In addition to the aforesaid injuries, there were abrasions of the size of 1' x 0.2', 3/4' x 3/4' and l 1/2 x 1/2' on the left scapular region of back, over right shoulder and on right ankel joint laterally respectively. The Doctor has also found the following bruises :
1. Bruise 6' x 1-3/4' upper boarder of right scapular region transversely directed.
2. Bruise 4' x 2' area in between the right shoulder and neck.
3. Bruise 5' x 1-3/4' lateral boarder of right scapular region of back.
4. Bruise 4' x 1-3/4' middle of right scapular region of back transversely directed.
5. Bruise 3' x 1-1/2' lower l/3rd of right back, transversely directed.
6. Bruise 7' x 1-1/2' right buttuck, transversely directed.
7. Bruise 7' x 1-1/2' right buttuck, obliquely directed. .....
8. Bruise 4' x 1-1/2' right knee posteriorly.
9. Bruise 2' x 1-1/2' left upper arm posteriorly.
10. Bruise 2' x 1' lateral aspect of left elbow joint.
According to the Doctor, all these bruises were red at the time of admission and all these injuries were ante mortem in nature. The head injury was grievous and was sufficient to cause death in an ordinary course of nature. The Doctor has also opined that the injured died of shock due to internal hacmorrahage in the left side of brain following fracture of skull.
12. According to the Doctor, except injuries No. 1 and 2, which were caused on the head, all other injuries were on non-vital parts of the body and they could not have caused death of injured Gulabchand. As per the Doctor, except head injuries which resulted in the fracture and internal haemorrhage, no other injury was sufficient in the ordinary course of nature to cause the death of injured Gulabchand. He has categorically stated that these injuries have not been caused by blunt weapon. Thus, as per PW: 6. Dr. Sahiram, Gulabchand's death has been homicidal and not suicidal.
13. In this case, the prosecution has examined two alleged eye witnesses of the occurrence and they are: PW. 1 Surrderram and PW. 2 Bhagwansingh. In his statement, PW. 1 Sunderram has categorically stated that on the date of the occurrence, at about 9 a.m. he along with his brother Gulabchand and one Lalchand were standing in the village Johad and were talking with each other. He has further slated that at that time, all the five accused-persons came there. Accused Jarnuram and Munshiram were armed with Gandasies and accused Satnam was armed with a Hockey. Accused Kashmirchand and Nanakram were armed with Kassiyas. According to this witness, on seeing Gulabchand, accused Jamuram told his companions that the enemy is standing there and he should be killed. Thereafter, initially accused Jamuram inflicted a Gandasi blow on the head of Gulabcahnd and accused Munshiram inflicted a Gandasi blow on his left arm. On this, Gulabchand fell down facedown. Thereafter, all the five accused-persons started beating him and on account of the conjoint attack by all the five accused-persons, he and Lalchand became frightened and so, they withdrew themselves to some distance and started crying 'Mar Diya Mar Diya'. On hearing their crise, Bhagwansingh, Harichand and some other persons also came there. Seeing them coming towards the place of the occurrence, the accused persons ran away. After some time, Sarpanch Dalbeersingh also came there. Thereafter, the Jeep of Bhajanlal was got hired from Jetsar Mandi and injured Gulabchand was brought to the Hospital at Suratgarh.
14. The injured Gulabchand was got admitted in the Hospital and thereafter, he went to the Police Station, Suratgarh and reported the matter to the Police. PW. 1 Sunderram has admitted the correctness of his statement Ex. P. 1, which was recorded by the Police and which is the basis of the FIR. The cause of incident, as per him, was Mst. Rajjo, who is their uncle's daughter. This witness has stated that Mst. Rajjo's husband died and thereafter, she contacted Nata marriage with her husband's younger brother Munshiram but on account of the development of her illicit relations with accused Jamuram, she came under the influence of accused Jarnuram and lodged a false report against her husband Munshiram, with whom she contacted the Nata Marriage after the death of her first husband. This witness has further'stated that during investigation of that case, Gulabchand supported Munshiram and stated before the Police that it is not a case of rape. In fact, Mst. Rajjo has already contacted Nata Marriage with Munshiram after the death of her husband. On the basis of this testimony of Gulabchand, the Police submitted the FR in that case and, therefore, accused Jamuram and his companions nurtured enmity against Gulabchand.
15. According to PW. 1 Sunderram, the Police inspected the site on that very day. The blood stained and control soil were collected from the place of the occurrence. A broken piece of hockey which was lying on the place of the occurrence was also seized and sealed. He has further stated that Gulabchand died on that very day but his inquest memo and Panchnama lash were prepared on the next day. The Police also seized on Khes, one turban and the clothes of deceased Gulabchand. This witness has stated that deceased Gulabchand was his real brother and Harichand, who has not been examined as a witness by the prosecution though it is alleged that on hearing the cries of PW. 1 Sunderram and Lalchand, he came at the place of the occurrence, along with Bhagwansingh and some other persons, is his real nephew. Lalchand is not his real mother's sister's son but he is the son of his mother's sister in relation. He has admitted that he, Bhagwansingh, Meharsingh, Sarpanch Dalbeersingh and Bootaram etc. are the members of the Congress Party and accused Jamuram etc are the members of the Communist Party. He has stated that he does not know whether accused Jamuram had opposed the candidature of Sarpanch Dalbeersingh and whether Balbeersingh contested Panchayat elections against Gulabchand and whether accused-persons supported Balbeersingh in that Panchayat election? He has further stated that accused Nanakram is the real maternal brother of accused Jamuram.
16. PW. 1 Sunderram has further stated that Mst. Rajjo's husband expired before about 7-8 years. She has one son Rameshchandra and one daughter Amati. According to this witness, it is correct that before about 8-10 months, the engagement of Mst. Amari was fixed with the son of accused Jamuram. He does not know whether after the death of Chambaram, his land has been mutated in the name of his widow Mst. Rajjo or his son Ramesh or his daughter Amari. He also does not know whether any dispute is going on between Mst. Rajjo and Munshiram about this land? He has, however, admitted that there are two parties in the village. One is headed by accused Jamuram and the other was headed by Gulabchand along with Sarpanch Dalbeersingh. He has stated that on the date of the occurrence, he was standing in the village Chowk near Johad. Gulabchand and Lalchand also came there and after their arrival, they started talking with each other. They were unarmed. Mst. Rajjo did not come there. They were standing there for about 1 -2 minutes. Thereafter, accused Nanakchand and Munshiram came from the western side and the remaining accused-persons came from the side of hut which is situated on the southern side. He has stated that he does not remember as to who was a head of which accused. He was confronted with portion 'A to B' of his police statement, wherein he has stated that after Gulabchand fell down, only accused Satnamchand, Kashmirchand and Narjakram availed with hockey and Kassiyas but he has resiled from that statement and has stated that all the five accused persons availed Gulabchand after he fell down. He has further stated that as he and Lalchand were unarmed, they withdrew themselves to some distance and only raised cries but did not intervene to save Gulabchand. He withdrew 3 to 4 paces away from the place where he was standing. Lalchand also went back to a distance of 3 to 4 paces away from the place where he was standing. They started raising cries as soon as Gulabchand was availed. On hearing their cries, Bhagwansingh and Harichand came to the place of the occurrence within 5-7 minutes from the western side and Sarpanch Dalbeersingh came there after 15-20 minutes of the occurrence. Bhagwansingh was sent for fetching the Jeep from Jelsarmandi and he came back after about one and half hours and thereafter, Gulabchand was shifted to Govt. Hospital, Suratgarh. He has further stated that till Bhagwansingh brought the Jeep from Jetsarmandi, Gulabchand was lying in an injured condition at the place of the occurrence. Number of persons assembled there but neither they touched him nor they bandaged his wounds. Even drinking water was not supplied to him. According to this witness, there were 2-3 Doctors in the Village but they did not call anybody. They reached the Hospital at about 12 Noon. He stayed in the Hospital up to 1.30 p.m. and then he along with Bhagwansingh and Sarpanch Dalbeer singh went to the Police Station and narrated the entire story to SHO Premnath and then to Sub-Inspector Rajpalsingh. He does not know who scribed the report but he has stated that the report was lodged by them in the Police Station itself and it was in the Police Station that his thumb impressions were taken on number of papers. He has also stated that he spent 2 or 2.30 hours in the Police Station. According to this witness, the statement of Bhagwansingh was also recorded at that time in the Police Station itself and thereafter, they went to the Hospital and from there, they went to the spot. At that time, the sun was about to set. The statements of Bhagwansingh, Harichand, Dalbeersingh and Meharsingh were first recorded in the Police Station and then in the village. Thus, this witness corroborates to a large extent the prosecution story as contained in the FIR Ex. P. 24 and the police statement Ex, P. 1 of PW. 1 Sunderram.
17. PW. 2 Bhagwansingh too has supported the prosecution story. He has stated that on the date of the occurrence, at about 9 or 9.30 a.m., he was going towards the shop of Atmaram. As soon as he reached in the village Chowk, he heard the cries of PW. 1 Sunderram 'Mar Diya Mar Diya'. On this, he saw that Gulabchand was being beaten by the accused-persons. He has stated that accused Jamuram inflicted a Gandasi blow on the head of Gulabchand and accused Munshiram inflicted a Gandasi blow on the arm of Gulabchand and thereby, Gulabchand fell down facewards and thereafter; all the five accused-persons availed him with the weapons with which they were armed. After some-time, Sarpanch Dalbeersingh came there and then he went to fetch a Jeep from Jetsarmandi and he brought the Jeep of Bhajanlal from Jetsarmandi and then shifted Gulabchand to Govt. Hospital at Suratgarh. He has also proved the site plan and site inspection memo. He has stated that from the place of the occurrence, the police collected the blood-stained and controlled soil. He has also proved the seizure memo Ex. P. 5, where a piece of hockey was recovered from the place of the occurrence. This witness has also proved the arrest memo Ex. P. 6 of accused Jamurarn. According to this witness, one Gandasi was recovered from the possession of accused Jamuram from his house vide Memo Ex. P. 7.
18. In his cross-examination, PW. 2 Bhagwansingh has admitted that near the place of the occurrence, there is house of Mahangaram and 2-3 houses away from the house of Mahangaram, the house of Mst. Rajjo is there. He has stated that he was going to the shop of Atmaram for purchasing certain goods but when he heard the cries of PW. 1 Sunderram, he was only 4-5 paces away from the place of the occurrence. He has stated that when he first saw Gulabchand, he had already fallen down. However, he has added that injuries on his head and arm were inflicted in his presence. His statement was recorded by the Police on the same evening in the village. He was confronted with his police statement Ex. D. 2 wherein he has not got it recorded that accused Jamuram inflicted a Gandasi blow on the head of Gulabchand and accused Munshiram inflicted a Gandasi blow on the arm of Gulabchand. He has stated that he does not know as to why all these facts were not recorded in his police statement Ex. D. 2. He also does not say as to who inflicted how many injuries to Gulabchand after he fell down. He also does not say whether these injuries were inflicted by the sharp side of the weapon or from the blunt side of the weapon. According to him, the accused-persons availed Gulabchand for about half or one minute in his presence and, thereafter, they ran away from the place of the occurrence. He has stated that he was unarmed and therefore, he did not intervene and had he intervened, he would have also been injured. Thereafter, he went to fetch a Jeep from Jetsarmandi and when he came back, Gulabchand was lying in injured condition at the place of the occurrence. His wounds were bleeding. According to this witness, Sarpanch Balbeersingh came there after about 5-6 minutes of the running away of the accused-persons. He has further stated that it was PW. 1 Sunderram who alone went to the police station to report the matter and he came back after about half an hour accompanied by the police personnel. The Police did not enquire anything from him in the Hospital. They reached the place of the occurrence at about 4 p.m. and not at the time of sun-set, as stated by PW. 1 Sunderram. According to him, the statements of Meharsingh, Harichand and Dalbeersingh were recorded by the police at the place of the occurrence. Thus, according to PW. 2 Bhagwansingh, he has seen the entire incident.
19. On critical examination of the statements of PW. 1 Sunderram and PW. 2 Bhagwansingh, it becomes crystal clear that PW. 2 Bhagwansingh has not seen the occurrence. PW. 1 Sunderram has stated that the entire incident took place within 2-3 minutes and Bhagwansingh and Harichand came at the place of the occurrence after about 5-7 minutes. Thus, as per the testimony of PW. 1 Sunderram, Bhagwansingh and Harichand arrived at the place of the occurrence after 5-7 minutes and the entire occurrence took place within 2-3 minutes and, therefore, it can safely be held that PW. 2 Bhagwansingh has not seen the occurrence. In his statement before the Court, he has stated that the entire incident took place in his presence and he was only 4-5 paces away from the place of the occurrence when he heard the cries of PW. 1 Sunderram. A person who was 4-5 paces away need not come to the place of the occurrence on hearing the cries of PW. 1 Sunderiarh because the entire occurrence was visible to him and it was also visible to other villagers as the entire occurrence has taken place in the village Chowk and not in a lane. He has further stated that when he first saw Gulabchand, he had already fallen down. It has been categorically stated by PW. 1 Sunderram as also by PW. 2 Bhagwansingh himself that initially, a Gandasi blow was struck on the head of Gulabchand by accused Jamuram and the other Gandasi blow was given by accused Munshiram on his left arm and after receiving these two injuries, Gulabchand fell down. Thus, even if we believe the testimony of PW. 2 Bhagwansingh himself that for the first time, he saw Gulabchand when he fell down, the infliction of two Gandasi blows on the head and arm of Gulabchand by accused Jamuram and Munshiram could not have been seen by PW. 2 Bhagwansingh because as per him also, these two injuries were inflicted to Gulabchand before he fell down. Such contradictions are not possible in the testimony of an eye witness, who has actually seen the occurrence. Moreover, PW. 2 Bhagwansingh has stated that although, he was only 4-5 paces away from the place of the occurrence, when the occurrence started and the entire beating took place in his presence, still he is unable to say whether the assailants inflicted injuries from the sharp side of the weapon used or from the blunt side. It is nobody's case that any sharp weapon injury has been received by Gulabchand after he fell down because two sharp weapon injuries have been received on his head and arm before he fell down, as per the version of the eye witnesses. The third injury on the head is superficial in nature and it has not been disclosed by the wintesses that at what time, this injury was inflicted and by which accused. In this view of the matter, we hold that PW. 2 Bhagwansingh has not seen the actual incident and he appears to be a cooked up witness.
20. We may state here that as per the story set up by the prosecution, Lalchand was present at the place of the occurrence from the very beginning and Harichand came there with PW. 2 Bhagwansingh but neither Lalchand nor Harichand has been examined on behalf of the prosecution to support its case. We have already held that the testimony of PW. 2 Bhagwansingh is self contradictiory and he appears to be a cooked up witness. Now, there remains only one eye witness of the occurrence who is PW. 1 Sunderrarn and this has to be seen on the basis of the material on record as to whether PW. 1 Sunderram has seen the occurrence or not?
21. Although, PW. 1 Sunderram has categorically stated that initially, accused Jamuram inflicted a Gandasi blow on the head of Gulabchand and then accused Munshiram inflicted a Gandasi blow on the left arm of Gulabchand and on receiving these two Gandasi blows, Gulabchand fell down and thereafter, all the five accused-persons availed him. He has been confronted with portion 'A to B' of his police statement Ex. P. 1 wherein he has stated that after Gulabchand fell down, he was availed only by accused Nanakram, Kashrnirchand and Satnamchand. Accused Satnamchand was armed with a hockey and accused Nanakram and Kashmirchand were armed with Kassiyas. Of course, deceased Gulabchand had one superficial sharp weapon injury on his head but it has not been disclosed by the prosecution witnesses that who has inflicted this injury. The other injuries which have been inflicted to Gulabchand after he fell down were blunt weapon injuries. Accused Nanakram and Kashmirchand were armed with Kassiyas. Kassiya is a sharp edged weapon. If Nanakram and Kashrnirchand intended to kill Gulabchand, they would have certainly used Kassiyas from sharp side and not from blunt side. Be that as it may, it is crystal clear that PW. 1 Sunderram is the real brother of Gulabchand and Lalchand is their mother' sister's son in relation. The occurrence took place in the presence of PW. 1 Sunderram and Lalchand. It appears to be quite improbable that when Gulabchand has been availed by the accused-persons in the presence of PW. 1 Sunderram and Lalchand, who are his closest relations, in the village Chowk, in broad-day-light and still they remain contented by only raising hue and cry without intervening in the occurrence or putting up any resistence. Even if it is admitted that different persons re-act differently to the events and out of fear, PW. 1 Sunderram and Lalchand did not intervene and they only raised cries to attract the attention of other persons of the locality then too, their action is totally against the human conduct, wherein Sunderram admits not to have provided any medical aid to Gulabchand for about 2-3 hours, after the accused-persons left the place of the occurrence although 2-3 Doctors were available in the village and Sarpanch Balbeersingh also arrived at the place of the occurrence, Gulabchand was lying in the village Chowk severly injured and his wounds were bleeding. Even they did not touch his body and did not offer him water etc. This is a most unnatural conduct on the part of a witness whose real elder brother has been seriously injured in his very presence. In this respect, we may place reliance on a Division Bench decision of this Court rendered in Bhanwarilal v. State, reported in 1992 Cr. LR (Raj) 92 (Para-12). 22. Moreover, it has been admitted by PW. 1 Sunderram that he owned one Aysher Tractor. When there was a tractor available with PW. 1 Sunderram in the village itself and his real brother Gulabchand was seriously injured and his wounds were bleeding, there was no need for him to have fetched a Jeep from Jetsar Mandi. In normal course of human condut, he would have immediately shifted his brother Gulabchand to the Hospital at Suratgarh in his own Tractor. It appears that at the time of the occurrence, PW. 1 Sunderram and Lalchand were not present at the place of the occurrence because if they were present there and have seen their kith and kin so seriously injured and bleeding, they would not have wasted a single minute and would not have waited for two hours for hiring a Jeep from Jetsarmandi and they would not have allowed his wounds to bleed without making first aid available to him when three Doctors were already available in the village. This only shows that PW. 1 Sunderram and Lalchand were not present at the place of the occurrence, otherwise they would not have behaved in this strange and unbelievable manner. A man may speak lies but the circumstances do not. The very fact that the occurrence took place at 9 a.m. within 2-3 minutes and the injured was shifted to the Hospital at 11.30 a.m. and in the intervening period, no medical aid was provided to the injured, who was a Ward Panch of the , Village, though 2-3 Doctors were available in the village and even the Sarpanch of the Village had also reached at the place of the occurrence after 5-7 minutes of the occurrence and the real brother of the injured i.e. PW. 1 Sunderram owned a Tractor, clearly go to show that PW. 1 Sunderram has not seen the actual occurrence. The testimony of PW. 1 Sunderram further becomes unreliable when it is compared with the testimony of PW. 2 Bhagwansingh as also PW. 9 SI., Rajpalsingh and PW. 6 Dr. Sahiram.
23. PW. 6 Dr. Sahiram has stated that as soon as Gulabchand was admitted in the Hospital, he sent a report to the Police Station, which is Ex. P. 13. PW. 9 Sub Inspector Rajpalsingh has stated that as soon as that report was received by him, he went to the Hospital and recorded the statement Ex. P. 1 Sunderram and then sent that statement to the Police Station for registration of a case as also for scribing the formal FIR. On the other hand, PW. 1 Sunderram has stated that he along with PW. 2 Bhagwansingh and Sarpanch Dalbeersingh went to the Police Station to lodge the report. He remained there for about 2 or 2-1/2 hours and his statement Ex. P. 1 was recorded at the Police Station either by SI Rajpalsingh or by SHO Premnath. His signatures on his statement as also on a number of other documents were obtained. In his statement before the Court, PW. 2 Bhagwansingh has categorically stated that it was PW. 1 Sunderram alone, who went to the Police Station for lodging a FIR and he came back to the Hospital after half an hour along with the Police. Thus, according to PW. 2 Bhagwansingh, Sarpanch Dalbeersingh also did not accompany PW. 1 Sunderram to the Police Station. PW. 2 Bhagwansingh has stated that the Police went to the place of the occurrence at 4 p.m. whereas as per PW. 1 Sunderram, the Police went there at the time of sun-set. PW. 9 Sub-Inspector Rajpalsingh has categorically stated that before he received the report Ex. P. 13, no body came to him and gave any information about this occurrence and he did not meet any witness in the Hospital except PW. 1 Sunderram. He has categorically denied this fact that PW. 1 Sunderram, PW. 2 Bhagwansingh and Sarpanch Dalbeersingh came to the Police Station and they have lodged the FIR. Such contradictions in the statements of the eye witnesses are not at all possible. They are only possible when the witnesses are cooked up.
24. PW. 1 Sunderram has stated that after seizure of the blood stained and controlled soil from the place of the occurrence, they came to the Police Station and thereafter, one more document was prepared and his thumb impression was obtained. In his cross-examination, a suggestion was made to him that his statement Ex. P. 1 was recorded by the Police after inspection of the site and, therefore, his statement on the basis of which the formal FIR was drawn is a post investigation document. He has denied that suggestion but it is not known that which document was prepared after inspection of the site. If we believe the version of PW. 1 Sunderram, then his first version of the occurrence which he stated to the police by going to the Police Station has been suppressed and if we believe the testimony of PW. 9 Sub-Inspector, Rajpalsingh that statement Ex. P. 1 of Sunderram was recorded by him in the Hospital then the testimony of PW. 1 Sunderram cannot be relied upon. He appears to be a cooked up witness.
25. As stated above the testimony of these two eye witnesses viz., PW. 1 Sunderram and PW. 2 Bhagwansingh is unreliable and they appear to be cooked up witnesses and so, the entire basis of the prosecution case ,goes away. It is true that the occurrence has taken place in which Gulabchand has been seriously injured and has expired in the Hospital but the version that has been put forth by these two alleged eye witnesses i.e. PW. 1 Sunderram and PW. 2 Bhagwansingh is not at all reliable. The other alleged eye witnesses of the occurrence who could throw light on this incident are Lalchand and Harichand, who have not been examined by the prosecution. Merely on the basis of certain recoveries of blood stained articles, guilt cannot be fastened on the accused-persons.
26. In his statement Ex. P. 1, PW. 1 Sunderram has stated that all the five accused-persons came together armed with deadly weapons and as soon as, accused Jamuram saw Gulabchand, he told that the enemy is standing there and he should be killed. Now, in his cross-examination before the Court, PW. 1 Sunderram has stated that the accused-persons came from two different sides. According to him, accused Nanakram and Munshiram came from western side and the other accused-persons viz., Jamuram, Satnamchand and Kashmirchand came from the eastern side, which means that all the five accused-persons did not come together and they had no common intention. Moreover, the site inspection memo Ex. P. 2 shows that near the place of the occurrence, there is a shop of one Atmaram and then the house of Mahangaram. There is also one Patwarkhana and Gurudwara. The shop of Atmaram was open but none of the persons living in that viacinity or locality have been examined as witnesses on behalf of the prosecution, who could have thrown much light as to how the occurrence has taken place.
27. So far as recoveries are concerned, PW. 2 Bhagwansingh has stated that one Gandasi was recovered on the information and at the instance of accused Jamuram and that Gandasi was blood stained. In his cross-examination, he has admitted that Gandasi was not sealed in his presence. Only a piece of cloth was brought from the village and that was wrapped to that Gandasi and his signatures on that cloth were not obtained but only a Chit was affixed on it. This clearly goes to show that Gandasi was not sealed in the presence of PW. 2 Bhagwansingh at the place of the occurrence. As per chemical and serological report Ex. P. 18, only one Gandasi was found blood stained but it is not clear that which Gandasi was found blood stained because one Gandasi was also recovered on the information and at the instance of accused Munshiram. Although, both Kassiyas were found stained with human blood but only one Kassiya was found stained with 'A' group of human blood but it is not known that whether that Kassiya which was found stained with 'A' group of human blood was recovered from the possession of accused Kashmirchand or accused Nanakram. Be that as it may, PW. 8 Om Prakash has stated that these articles were deposited in the Malkhana by SI Rajpalsingh on 26-5-1986 and 7-6-1986 and on both these days, he was on leave and the work of Malkhana was being looked-after by Om Prakash FC No. 77 but he has not been examined by the prosecution to prove that he received these articles in a sealed condition.
28. It may be stated here that in their statements before the Court under Section 313 Cr. PC, the accussed-appellants Satnamchand and Kashmirchand have stated that they have inflicted injuries to Gulabchand with hockey and Gandasi respectively. A piece of broken hockey was recovered at the place of the occurrence and the other piece of broken hockey was recovered from the possession of accused Satnamchand and these two pieces of hockey were sent to Forensic examination and the report of the Forensic Science Laboratory Ex. P. 19 categorically states that both these pieces of hockey are portions of the same hockey stick. Accused Satnamchand has stated that he was going to the shop of Atmaram with accused Kashmirchand but in the way, near Johad, he found Gulabchand armed with a lathi. Om Prakash and Munshiram were armed with Kassiya and Gandasi respectively. As soon as Gulabchand, Om Prakash and Munshiram saw Mst. Rajjo, they started beating her. Gulabchand told that she should be kept as wife of Munshiram and she should be taught a lesson. Om Prakash and Munshiram, the companions of Gulabchand then started inflicting injuries to Mst. Rajjo. It may be stated here that before this occurrence, Mst. Rajjo had already lodged a FIR about rape against Munshiram, in which, FIR has been given by the Police on the basis of the statement given by Gulabchand that Mst. Rajjo had already contacted Nata marriage with Munshiram, the real younger brother of her husband and therefore, there was no question of telling that Mst. Rajjo should be kept as wife of Munshiram, with whom she had already contacted Nata marriage. PW. 6 Dr. Sahiram has stated that all the injuries received by Mst. Rajjo were blunt weapon injuries. In their statements before the Court, the accused-appellants Satnamchand and Kashmirchand have categorically stated that Om Prakash and Munshiram were armed with Kassiya and Gandasi respectively and therefore, when they were armed with sharp weapons and if Mst. Rajjo was availed by them then she should have received sharp weapon injuries and not blunt weapon injuries, as stated by the Doctor. It was suggested to the Doctor in his cross-examination that Mst. Rajjo had one sharp weapon injury on her head. The Doctor has replied that had he detected any sharp weapon injury on her head, he would have certainly reported the matter to the police. As per him, Mst. Rajjo remained in the Hospital from 25-5-1986 to 29-5-1986 and then she eloped from the Hospital on 30-3-1986. He has further stated that he informed some Police Officer that a lady from Manewala village has been admitted in the Hospital but he does not know who was that Police Officer to whom he has informed. PW. 9 Sub-Inspector Rajpalsingh has categorically stated that the Doctor did not inform him about this fact. According to the Doctor, though the duration of the injuries received by Gulabchand and Mst. Rajjo were almost the same but whether they were caused at the same time, he cannot say.
29. In her statement before the Court, DW. 1 Mst. Rajjo has admitted that she lodged a report against her husband's younger brother Munshiram about rape and in that case, Gulabchand stated on oath that she and Munshiram had contacted Nata marriage and, therefore, the Police submitted the FIR in that case. She has further staled that after she went from the Hospital, she tried to lodge the report with the Police but the Police did not accept her report. Accused Nanakram has also stated that he tried to lodge the report but the Police did not record his report. If that be so, he should have lodged the report then and there on 25th or 26th itself but that was not done. Moreover, if the Police refused to accept the report, he must have filed a complaint in the Court within 2-3 days of the occurrence but that complaint was filed on 4-6-1986 whereas the occurrence took place on 25-5-1986. Even in her complaint, Mst. Rajjo had mentioned that these persons were armed with Gandasis and they have inflicted injuries to Gulabchand with Gandasis from their sharp side and not from blunt side. She has been cross-examined on this aspect and she has stated that she speaks in Punjabi and although, she has stated that Satnamchand was armed with hockey but it may be possible that the typist who typed the complaint had typed the Gandasi instead of hockey. She has further stated in her statement before the Court that the hockey was taken away by Satnamchand from the place of the occurrence but that fact has not been recorded in her complaint. Thus, the case of self defence of Mst. Rajjo set up by the accused-persons has no substance.
30. It was next contended by Mr. Bajwa that although the occurrence took place on 25-5-1986 but the report has been sent to the Magistrate on 26-5-1986. The report of this incident was lodged at 1.20 p.m. on 25-5-1986. During those days, Courts observed morning hours and since this report has been lodged after Court-hours, the FIR was sent to the Magistrate on the next day i.e. on 26-5-1986 and, therefore, it cannot be said that the FIR has reached to the Magistrate with delay.
31. Even if we have held that the prosecution has not been able to prove its case but in their statements before the Court under Section 313 Cr. PC, the accused appellants Satnamchand and Kashmirchand have admitted that they inflicted injuries to Gulabchand with hockey and Kassiya and, therefore, their statements have to be believed. It is their case that they conjointly attacked and inflicted injuries with hockey and Gandasi. Hockey was used with such a great force that it was broke down and one of its pieces was found at the place of the occurrence and the 'other was recovered on the information and at the instance of accused Satnamchand and as per the report of the Forensic Science Laboratory, those two pieces of hockey form part of the same stick. As no question has been asked to the accused-persons about this report of the Forensic Science Laboratory Ex. P. 19 in their statements under Section 313 Cr. PC and so that report cannot be used against the accused-persons. Even if that report is not used, then too the admission of accused-appellants Satnamchand and Kashmirchand that they availed Gulabchand with hockey and Gandasi respectively has to be accepted and a conviction can be recorded on the basis of such an admission as held by their lordships of the Supreme Court in Hate Singh v. State of Madhya Bharat, AIR 1953 SC 468 : (1953 Cri LJ 1933), wherein it has been observed as under at page 1934 of Cri LJ :
The statements of an accused person recorded under Sections 208, 209 and 342 are among the most important matters to be considered at a trial. It has to be remembered that in this country, an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the prosecution of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The satements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box. They have to be received in evidence and treated as evidence and be duly considered at the trial.
This means that he must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as much weight as matters which tell against him. May more. Because of the presumption of innocence in his favour even when he is not in a position to prove the truth of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false.
32. We may further draw attention to a decision of this Court in State of Raj. v. Labhsingh, 1982 Cri LR (Raj) 87, wherein it has been held that the statement of accused under Section 313 Cr. PC is also relevant and if in such a statement, the accused confesses to the commission of the offence charged against him, then the Court may rely upon that confession and proceed to convict him but his statement as a whole should be taken into consideration.
33. In Amrik singh v. State of Punjab, 1986 (2) All India Criminal LR 431, a Division Bench of the Punjab and Haryana High Court has held that even a retracted confession made by the accused can be acted upon and utilised against him.
34. It is true that the statement of the accused has to be accepted and rejected as a whole but if any exculpatory part is alleged by the accused and that is found to be false after close scrutiny of the evidence on record then of course, the inculpatory part of such statement can be accepted. In this case, the accused-appellants Satnamchand and Kashmirchand have stated in their statements under Section 313 Cr. P. C. that they have availed Gulabchand in order to save the honour of Mst. Rajjo, who was injured by the complainant party but on scrutiny of the evidence on record, the case of infliction of injuries to Gulabchand by accused-appellants Satnamchand and Kashmirchand in self defence of the person of Mst. Rajjo, as set by the accused-appellants has been disbelieved as having no substance and, therefore, the other part of their statement that they caused these injuries voluntarily to Gulabchand can be accpeted and acted upon for recording a conviction against. them.
35. According to the Doctor, injury No. 1 was sufficient in the ordinary course of nature to cause the death of injured Gulabchand. The attack was conjoint in furtherance of the common intention of both these accused persons viz., Satnamchand and Kashmirchand and, therefore, they have to he held guilty of the offence under Section 302/34 IPC. We have already held that the prosecution has not been able to prove its case against accused-appellants Jamuram, Munshiram and Nanakram for the offences under Sections 302 or in the alternative under Sections 302/149 and 148 IPC.
36. In the result, this appeal partially succeeds. The conviction and sentences recorded against the accused-appellants Jamuram, Munshiram, Nanakram, Satnamchand and Kashmirchand for the offences under Sections 302 or in the alternative under Section 302/149 IPC are set aside. However, the accused-appellants Satnamchand and Kashmirehand are held guilty of the offence under Section 302/34 IPC and are sentenced to imprisonment for life together with a fine of Rs. 500/- and in default, to further undergo 6 months rigorous imprisonment.
Let the result of this appeal be conveyed to the learned lower Court for compliance and the record of this case be sent back to the learned lower Court forthwith.