State of Rajasthan Vs. Ganesh Das and ors. - Court Judgment

Milap Chandra Jain, J.

1. The aforesaid reference has been submitted by the learned Additional Sessions Judge, Churu under Section 366(1), Cr.P.C. in respect of his judgment dated April 18, 1992 by which he has passed sentence of death against the accused Rajudas and Mahaveer. The aforesaid Jail Appeals Nos. 167/92 and 168/92 have filed by the accused Rajudas and Mahaveer and the Criminal Appeal No. 292/ 93 has been filed by all the four accused persons against the said judgment of the learned Additional Sessions Judge, Churu. By the said judgment, four accused persons have been convicted and sentenced as follows:

Sections of I. P. C. under which Sentence Awarded

convicted

A. APPELLANT GANESH DAS.

302, I.P.C. Life imprisonment

302/34, I.P.C. Life imprisonment

302/120B, I.P.C. Life imprisonment

449, I.P.C. Life imprisonment

307, I.P.C. 10 years' rigorous imprisonment.

326/34, I.P.C. 7 years' rigorous imprisonment.

324, I.P.C. 1 year

323, I.P.C. 1 month's simple imprisonment.

B. APPELLANT RAJU DAS.

302/34, I.P.C. Capital punishment.

302/34, I.P.C. Life Imprisonment.

302/120B, I.P.C. Life Imprisonment.

449, I.P.C. Life Imprisonment.

307/34, I.P.C. 10 years' rigorous imprisonment.

326, I.P.C. 7 years' rigorous imprisonment.

324, I.P.C. 1 year's simple imprisonment.

323, I.P.C. 1 month's simple imprisonment.

C. APPELLANT MAHAVEER.

302, I.P.C. Capital punishment.

302/34, I.P.C. Capital punishment.

302/120B, I.P.C. Life Imprisonment.

449, I.P.C. Life Imprisonment.

307/34, I.P.C. 10 years' rigorous imprisonment.

326/34, I.P.C. 7 years' rigorous imprisonment.

324, I.P.C. One year.

323, I.P.C. 1 month's simple imprisonment.

D. APPELLANT SMT. BHAGWANI

302, I.P.C. Life Imprisonment.

302/34, I.P.C. Life Imprisonment.

302/ 120B, I.P.C. Life Imprisonment.

449, I.P.C. Life Imprisonment.

307/34, I.P.C. 10 years.

324/34, I.P.C. 1 year.

323/34, I.P.C. 1 month.

For each offence, fine of Rs. 100/- has also been awarded. In default of payment of fine, the defaulter-convict is to undergo imprisonment for seven days.

2. The facts of the case giving rise to the

aforesaid reference and appeals may be summarised thus. Laxman Das and the accused Ganesh Das of the village Khandwa (P.S. Ratan Nagar) (District Churu) are real brothers. A dispute over a way was going on in between them and a fight took place in which Ganesh Das's son Hanuman Das was murdered. Laxman Das, his wife Bakhtawari and his sons Bhanwar Das, Bajrang Das and Ram Kumar were accused in Sessions case No. 22 of 1984 relating to the murder of Hanuman Das. July 22, 1986 was fixed in the case for the judgment. Laxman Das and his sons Bhanwar Das and Bajrang Das were convicted under Section 304, Part II, I.P.C. and sentenced to rigorous imprisonment for 7 years only. Bakhtawari and Ram Kumar were acquitted. After hearing the said judgment, Bakhtawari (wife of Laxman Das) (deceased), Ram Kumar (deceased), Shanker Das (PW 19) and Shishupal (deceased), sons of Laxman Das, and Kashi Ram (P W13) (brother of Bakhtawari) were returning from Churu to their village Khandwa in a camel cart. Jetha Ram Mali (deceased) also sat on the camel cart from the house of Meghji Mali, Churu. The same day at about 10 p.m., the said camel cart reached 'Bid', in the vicinity of village Khandwa. The accused-appellants Ganesh Das, his wife Bhagwani and their sons Mahaveer and Rajudas had earlier hidden themselves there in the bushes. Ganesh Das and Rajudas were armed with BARCHHI, Bhagwani with GANDAS1 and Mahaveer with BHALA. On seeing the camel cart, they came out and attacked Bakhtawari, Ram Kumar, Shanker Das, Shishupal, Kashi Ram and Jetha Ram with their aforesaid weapons. As a result thereof, Bakhtawari wife of Laxman Das and Ram Kumar and Shishupal sons of Laxman Das died on the spot. Jetha Ram and Kashi Ram PW 13 were also seriously injured. Jetha Ram died the following day i.e. on July 23, 1986, in the hospital. Thereafter, all four accused persons came to the house of Laxman Das and the accused-appellants Rajudas and Mahaveer came inside it and attacked Chandrawati PW 12 wife of Bhanwar Das, Teejo PW 15 and Kamla PW 14, daughters of Laxman Das and Mahendra son of Chandrawati. As a result thereof, Mahendra died on the spot and Chandrawati PW 12, Teejo PW 15 and Kamla PW 14 received serious injuries. Sarpanch, Gram Panchayat, Khandwa, Paras Ram PW 17 and others immediately took the injured Jetha Ram and Kashi Ram to the Bhartiya General Hospital, Churu and, therefrom, he intimated the Police Station, Kotwali, Churu about the said occurrence vide report Ex. P/102. Sub-Inspector Munshi Ram PW 25 came therefrom and recorded the statement Ex. P/65 of injured Kashi Ram at 2 a.m. during the night intervening 22nd and 23rd July, 1986. He sent it to the Police Station, Ratan Nagar (Churu) as the place of occurrence was in its area. On its basis, FIR Ex. P/93 was registered against the accused Ganesh Das, his wife Bhagwani and his sons Mahaveer and Rajudas under Sections 302, 307, 324/34 and 120B, I.P.C. Dying declaration Ex. P/104 of the injured Jetha Ram was recorded by Dr. S. K. Kaushik PW 3 the same night and, thereafter, he died the same day. Post-mortem examinations on the dead bodies of Bakhtawari, Ram Kumar, Shishu-pal, Mahendra and Jetha Ram were performed and injuries of injured Chandrawati PW 12, Teejo PW 15, Kamla PW 14, Shanker Das PW 19 and Kashi Ram PW 13 were examined by Dr. S.K. Kaushik PW 3. Inquest reports and description memos of the dead bodies of Bakhtawari, Ram Kumar, Mahendra, Shishupal and Jetha Ram were prepared and their photos were taken. Blood stained clothes of the injured Chandrawati, Teejo and Kamla were taken. Site plans of the places of occurrence were prepared and articles which were found lying were taken in police custody and their recovery memos were prepared. Accused Mahaveer, Rajudas, Mst. Bhagwani and Ganesh Das were arrested. Baniyans of male accused were found stained with blood and they were seized. They gave information under Section 27, Evidence Act and weapons of offence were recovered in pursuance thereof. Sealed packets were sent to the Forensic Science Laboratory, Raja-sthan, Jaipur and report of the chemical examination was received.

3. After completing investigation, a challan was filed against all the four accused persons in the court of the Munsif-cum-Judicial Magistrate, Churu, who committed them to the court of the Sessions Judge, Churu. Charges were framed against all the four accused persons. They did not plead guilty and claimed trial. The prosecution examined (A) Smt. Banarsi PW 11 and injured Smt. Chandrawati PW 12, Kashi Ram PW 13, Kamla PW 14, Teejo PW 15 and Shanker Das PW 19 as eye-witnesses, (B) Petha Ram PW 1, Dula Ram PW 2, Bhag-wana Ram PW 6, Indra Chand PW 7, Harish Chandra PW 8, Bhanwar Lal PW 18, Daya Chand PW 20 and Bhagdas PW 22 as attesting witnesses, (C) Dr. S. K. Kaushik PW 3, Dr. N. N. Bagri PW 21 and Dr. M. K. Pandey PW 26 who examined the aforesaid injured persons and conducted the post-mortem examinations of the aforesaid deceased persons, (D) Rameshwar Lal PW 4 and Purshottam Lal PW 16 Radiologists, (E) Malkhana In-charge Inayat Ali PW 9 who kept the sealed packets in the Police Station, (F) Constables Birbal Ram PW 10 and Sanwarmal PW 14 who carried the sealed packets, (G) Photographer Yasin Khan PW 5-and (H) Amar Singh P W 23 and Munshi Ram PW 25 as investigating officers and tendered and proved 106 documents.

4. All the four accused persons have either denied the prosecution story or have said that it is false. The accused Ganesh Das and Mst. Bhagwani have stated that after the murder of their son Hanuman Das they did not move out from their house and they have falsely been implicated in the case and they are innocent. While examining the accused Mahaveer Prasad and Rajudas under Section 313, Cr. P.C., they filed their separate written statements, each stating that it be treated as a part of his statement recorded under Section 313, Cr. P.C. In these statements, they have said as follows:--

They came to Sessions Court, Churu to hear the judgment of the case relating to the murder of their brother Hanumandas, Their father Ganeshdas and mother Bhagwani never attended the court on any date. After the murder of Hanumandas, they did not move from their house. After hearing the judgment, they started from Churu to their village Khandwa on foot. Mahayeer Prasad was having a lathi in his hand. Rajudas was not having any arm. While they were at a distance of 200-250 'pawada' from the village Khandwa, they saw a camel cart behind them. In this camel cart, Bakhtawari, her brother Kashi Ram, his friend Jetha Ram Mali and her son Ram Kumar were sitting. They started abusing them (Mahaveer and Rajudas). Bakhtawari asked Ram Kumar and Jetha Ram to do them away. Thereon, Ram Kumar, Jetharam and Kashi Ram got down from their cart and came near them. Jetha Ram was armed with a 'Sela', Ram Kumar with a 'Barchi' and Kashi Ram and Bakhtawari with lathis. Jetha Ram attacked him with his 'Sela'. He saved himself with the help of his lathi. However, he received an injury on his arm. Mahaveer was successful in snatching away the 'Sela' from Jetha Ram. A Sela-blow was inflicted by Mahaveer on Jetha* Ram and, thereafter, he ran away, Ram Kumar also attempted to attack Mahaveer with his Barchi. Rajudas was able to run away therefrom. Thereafter, Bakhtawari, Kashi Ram, Ram Kumar and child proceeded towards Rajudas. Ram Kumar attempted to attack him with a Barchi and he was able to snatch it from him (Ram Kumar). He whirled this Barchi to save himself. As a result thereof, Bakhtawari, Kashi Ram, Ram Kumar and the child received injuries and they fell down on the ground. Rajudas then came to his house. There he found Chandjawati PW 12 and her sister-in-law (Nanand) who had obstructed his way and abused him. One of them was armed with a Barchi and started beating him. He snatched away the Barchi and whirled it. He could not know as to who was injured with it as it was dark. Rajudas received injuries. As a result thereof, his clothes got stained with blood. The police did not get their injuries examined. The accused Mahaveer Prasad disclosed in his written-statement that he did not go to the house of Laxman Das during that night, he came to his house at 12 in the night and there he heard that a quarrel had taken place in between the daughters and daughter-in-law of Laxman Das on the one hand and his brother Rajudas on the other hand.

5. No accused produced any evidence in his defence. After hearing the Public Prosecutor and the learned counsel for the accused persons, the learned Additional Sessions Judge, Churu convicted and sentenced them as said above.

6. Learned counsel for the accused-appellants have challenged the conviction and sentence of the accused-appellants on various grounds for which the questions noted in the following para 9 have been formulated. As such it is not necessary to state the grounds here. They have relied upon Mada Singh v. State of Rajasthan 1985 Cri LR (Raj) 73, Moti v. State ILR (1962) 12 Rajasthan 383 at page 395, Dhanna v. State 1950 Raj LW 357 : 1951 (52) Cri LJ 201, State v. Narain Singh 1952 Raj LW 20 (DB), K. Ramchandra Reddy v. Public Prosecutor AIR 1976 SC 1994 : 1976 Cri LJ 1548, Surendra Singh v. State of Rajasthan (1989) 2 Raj LW 73, Ramjeewan v. State of Rajasthan (1987) 2 WLN 316, Ishwar Singh v. State of Uttar Pradesh AIR 1976 SC 2423 : 1976 Cri LJ 1883, Jalal v. State of Rajasthan 1984 Raj Cri C 274, Bhanu v. State of Rajasthan (1986) 1 WLN 563, Satbir Singh v. State of Punjab (1993) 2 JT 159 : 1993 Cri LJ 1395, Kesra v. State of Rajasthan 1987 Cri LR (Raj) 497, Hakmat Rai v. State of Rajasthan 1987 Cri LR (Raj) 718 and Heera Lal v. State of Rajasthan 1986 Cri LR (Raj) 627 in support of their contentions.

7. Learned Public Prosecutor has duly supported the conviction and sentence of the accused-appellants. In support of his contentions, he relied upon Kachhawa v. State of Rajasthan 1985 Raj LW 97 : 1986 Cri LJ 306, State of Rajasthan v. Asha alias Ashanand, (1989) 1 Raj LW 484 and Rana Pratap v. State of Haryana, AIR 1983 SC 680 : 1983 Cri LJ 1272.

8-9. Under the facts and circumstances of the case and the arguments advanced by the learned Public Prosecutor and the learned counsel for the accused-appellants, following questions emerge for consideration in this case:

1. Whether Kashi Ram PW 13 and Shan-ker Das PW 19 (of the first occurrence) and Mst. Banarsi PW 11, Chandrawati PW 12, Kamla PW 14 and Teejo PW 15 (of the second occurrence) produced as eye-witnesses are not reliable and trustworthy as (1) they were closely related to the deceased Ram Kumar, Shishupal, Mahendra and Bakhtawari and j are related to the injured Kashi Ram PW 13, ' Chandrawati PW 12, Teejo PW 15, Kamla PW 14, (2) their relations with the accused persons had been strained, and (3) also they did not disclose about the occurrence to Parsa Ram PW 17, Inder Chand PW 7 and Munshi Ram PW 25.

2. Whether there was no motive for the accused persons to do away with Jetha Ram, Bakhtawari, Ram Kumar, Shishupal and Mahendra?

3. Whether Jetha Ram was in a fit condition to give his dying declaration at 1.40 a.m. on 23-7-1986? If so, whether the dying declaration Ex. P/104 recorded by Dr. S.K. Kaushik PW 3 is trustworthy?

4. Whether the prosecution case becomes doubtful on account of non-mention of the names of accused persons in the inquest reports Ex. P/3 to P/6 and P/57 and Panchayat Namas Ex. P/7 to Ex. P/10 and P/58?

5. Whether the statement Ex. P/65 of injured Kashi Ram PW 13 was recorded at 1 a.m. on 22-7-1986 and on its basis FIR Ex. P/93 was recorded at 3.30 a.m. on 23-7-1986?

6. Whether there is a great variance in between the FIR Ex. P/93 and the prosecution evidence and also in between FIR, Ex. P/93 and recovery memos Exs. P/82 and P/85?

7. Whether the eye-witnesses were not able to see both the occurrences due to the darkness ?

8. What is the effect of non-identification of weapons of offence by the prosecution witnesses ?

9. What is the effect of omission to mention the places where the injured persons, accused persons and prosecution witnesses were at the time of occurrences in the site plans Ex. P/1 and Ex. P/ 2?

10. To what extent the written statements filed by the accused Rajudas and Mahaveer can be taken into consideration ?

11. What is the effect of the non-examination of I.O. Shanker Lal Vashishtha, Deputy Superintendent on the prosecution case ?

12. Whether Kashi Ram PW 13 was not an eye-witness of the occurrence ?

13. What is the effect of non-mention of blood at the places of occurrences in the site plans Ex. P/1 and Ex. P/2?

14. Whether there is a great variance in between the medical evidence and the testimony of eye-witnesses If so, to what extent ?

15. Whether the recovered arms and articles were sent for Chemical Examination after delay If so, to what extent?

16. What offences are proved against each accused-appellant?

17. Whether death sentence deserves con-firmation?

QUESTION NO. 1.

10. The following pedegree will show that: the parties are closely related to each other:

Mangal Das

Ganeshdas = Bhagwani Laxman Das = Bakhtawari

(ACCUSED) (accused) (convicted in earlier (deceased)

case)

Hanumandas Mahaveer Rajudas Bhanwardas Bajrangdas Ram Kumar Shishupal

(murdered (accused) (accused) (convicted in (convicted in (deceased) (deceased)

earlier) earlier case) earlier case)

Chandrawati

PW12

(Injured) Shanker Banarsi Kamla Teejo

PW19 PW11 PW14 PW15

(injured) (injured) (injured)

Mahendra

(deceased)

Admittedly, informant Kashi Ram PW 13 is the brother-in-law (SALA) of Laxman Das and the deceased Jetha Ram Mali was his friend.

11. It is well settled law that sworn testimony of a witness cannot be discarded simply on the ground that he was related to the deceased or is related to the injured. His evidence needs cautious approach. The prosecution has produced Kashi Ram PW 13 and Shanker Das PW 19 as eye-witnesses of the first occurrence which took place in the 'Bid' of village Khandwa and Banarsi PW 11, Chandrawati PW 12, Kashi Ram PW 13, Kamla PW 14 and Teejo PW 15 as eyewitnesses of the second occurrence which took place inside the house of Laxmandas. It is well proved from the injury reports Exs. P/25 to P/30 that Chandrawati PW 12, Kashi Ram PW 13, Kamla PW 14, Teejo PW 15 and Shanker Das PW 19 received injuries during the two occurrences. Their presence cannot be doubted. Their presence is also admitted by the accused-appellant Rajudas in his written statement (paper No. A34/37-38).

12. Hanumandas son of the accused Ganesh Das was murdered and Laxman Das, his wife Bakhtawari and his three sons, namely Bhanwar Das, Bajrang Das and Ram Kumar were tried as accused persons in the case relating to the murder of Hanuman Das. By judgment dated July 22, 1986, Laxman Das, Bhanwar Das and Bajrang Das were convicted under Section 304, Part II, I.P.C. and sentenced to 7 years' rigorous imprisonment and the accused Bakhtawari and Ram Kumar were acquitted. In it, Ganeshdas, his daughter Savitri and his wife Bhagwani appeared as prosecution witnesses Nos. 1, 3 and 4 respectively. As such the relations in between the said prosecution witnesses Banarsi PW 11, Chandrawati PW 12, Kashi Ram PW 13, Kamla PW 14 and Teejo PW 15 on the one hand and the accused persons, namely, Ganesh Das, Bhagwani, Mahaveer, Das and Rajudas on the other hand were straiped. Enmity is a double edged weapon. Under the facts and circumstances of the case, it cannot be said that the accused persons have falsely been implicated in this case due to enmity.

13. There is nothing on the record to indicate that the said prosecution witnesses falsely implicated the accused persons and allowed to go scot free the real guilty persons. It is correct that Inder Chand PW 7 (son of deceased Jetha Ram) and Parsa Ram PW 17 (Sarpanch, Gram Panchayat) have not said any thing as to how the said injured and deceased received injuries and who inflicted them. There is no force in the contention of the learned counsel for the convict-appellants that the conspicuous absence about the said two occurrences and as to who caused injuries to the injured persons in the statement of Parsa Ram PW 17 and Inder Chand PW 7 creates great doubt in the prosecution case. The learned counsel for the accused appellants could not dare to put any question to these witnesses in their cross-examination on any of these points. There could have been various reasons for such an omission in their statements. Inder Chand PW 7 was produced as an attesting witness only to prove documents Ex. P/57 and P/58. Sarpanch, Gram Panchayat, Khandwa, Parsa Ram PW 17, was produced to prove enmity which existed in between the parties prior to the occurrence on account of the murder of Hanumandas. S. I. Munshi Ram PW 25 was produced by the prosecution to prove certain documents prepared by the investigating officer Shanker Lal Vashishtha, the then Deputy Superintendent of Police, Churu who died during the trial of the case. Any submission made by the witnesses to him would have been hit by Section 162, Cr.P.C. In any view of the matter, non-disclosure about the two occurrences by the prosecution witnesses to him would not be fatal. These eye witnesses are quite reliable and reliance can safely be placed upon them.

QUESTION NO. 2.

14. The accused appellants had a motive to do away Bakhtawari and Ram Kumar as they were acquitted by the learned Sessions Judge, Churu the same day in the sessions trial relating to the murder of Hanumandas (son of Bhagwani and Ganeshdas and brother of Mahaveer and Rajudas). Fortunately, Laxmandas, Bhanwardas and Bajrangdas were convicted and sentenced to 7 years' rigorous imprisonment otherwise they would have also been injured, murdered. As the deceased Jetha Ram and Shishupal had accompanied Bakhtawari and Ram Kumar they also became the target of the accused persons. The accused Mahaveer and Rajudas were greatly aggrieved with the acquittal of Mst. Bakhtawari and Ram Kumar and conviction of Laxmandas, Bhanwardas and Bajrangdas under Section 304, Part II, I.P.C. and sentence of 7 years' imprisonment. They came to the house of Laxmandas and inflicted injuries to Chandrawati, Kamla, Teejo and Mahendra and as a consequence thereof Mahendra died the same day.

QUESTION NO. 3.

15. Dr. S. K. Kaushik PW 3 has deposed that at 1.40 A. M. during the night intervening 22nd and 23rd July, 1986 he recorded the dying declaration Ex. P/104 of the injured Jetha Ram in the Bhartiya General Hospital, Churu in presence of Dr. Rakesh Bhargava and he got the thumb impression of Jetha Ram on it at place X. He has also disclosed that the condition of the injured Jetha Ram was critical, there was no time for calling a Magistrate and as such he himself recorded his dying declaration Ex. P/104. He has further disclosed that he has written Ex. P/104 what the injured Jetha Ram said to him and after some time Jetha Ram went in coma. Entry Ex. P/102 of the general diary of the Police Station, Kotwali, Churu bearing No. 988 time 2 a.m. and date July 23, 1986 clearly mentions that the condition of the injured Jetha Rani is serious and his dying declaration has been recorded by the duty doctor. There is no suggestion in the cross-examination of Dr. S.K. Kaushik PW 3 which may go to create any doubt in his testimony. Non-examination of Dr. Rakesh Bhargava, Compounder and Nurse is of no consequence. FIR Ex. P/93 has been recorded on the basis of the statement Ex. P/65 given by Kashi Ram. There is nothing on the record to indicate that Kashi Ram PW 13 was aware that the dying declaration of Jetha Ram has been recorded when his statement Ex. P/65 was recorded. As such the omission of this fact in the FIR P/93 is also of no consequence

16. No adverse inference can be drawn against the prosecution for not getting the dying declaration recorded by a Magistrate as Dr. S.K. Kaushik PW 3 has stated on oath that he himself recorded the dying declaration Ex. P/104 as the condition of the injured Jetha Ram was very serious. Reference of Surinder Kumar v. State AIR 1987 SC 697 : 1987 Cri LJ 537 para 12, may be made here. Investigating Officer Munshi Ram PW 25 has deposed that he moved application Ex. P/75 before Shri P. L. Hisaria Munsiff-Magistrate, Churu, the latter went to the said hospital and contacted the duty doctor and he (Sri Hisaria) gave the note EF under his signature on his application Ex. P/75 after the duty doctor reported that the unjured was not in a fit condition to give his statement. This application also bears the note of Duty Doctor Dr. Rakesh Bhargava. There is also no suggestion in the Cross examination of Indarchand PW 7 & Parsa Ram PW 17 that Jetha Ram was unconscious when he was admitted in the hospital.

17. In this case there was no necessity for getting a certificate from the Incharge of the hospital to the effect that the injured Jetha Ram was in a fit condition to give his statement as Dr. S.K. Kaushik PW/ 3 himself recorded the dying declaration Ex. P/104. In the end of cross-examination of Dr. S. K. Kaushik PW 3, a suggestion was simply put to him that the dying declaration was recorded after Jetha Ram had died and the witness categorically denied it. It has been held in Kusa v State of Orissa, AIR 1980 SC 559: (1980 Cri LJ 408) para 9, that the dying declaration, if believed, can be relied upon for convicting the accused even if there is no corroboration. Dying declaration is the groaning utterances of a dying man in the grip of dreadful agony which cannot be judged by the standards of fullness of particulars which the witnesses may give in other situations. To discredit such dying declarations for shortfalls here or there or even in many places is unrealistic, unnatural and unconscionable if basically there is credibility (AIR 1980 SC 1226 at page 1227): (1980 Cri LJ 925 at p, 926). As regards some discrepancy in a dying declaration, observations made in Dalbir Singh v. State of Punjab AIR 1987 SC 1328 : 1987 Cri LJ 1065 para 12, may usefully be quoted here. They run as under:-

In any event the dying delaration in our opinion, could not be discarded merely on the ground that it does not give precise description of all the instruments of offence and also the precise description of the manner in which the injuries were inflicted and on this basis therefore it could not be contended that this dying declaration should be rejected as it is not consistent with the medical evidence. It is plain that substantially it is corroborated by medical evidence and also corroborated by the testimony of eyewitness.

The dying declaration Ex. P/104 is very natural and straight forward and contains a ring of truth. There is no reason as to why the deceased implicted the convict-appellants falsely. Dr. S.K. Kaushik P.W. 3 has categorically stated that no relation of Jetha Ram was present when his dying declaration Ex.P/104 was recorded by him. As such there was no question of tutoring. In Mada Singh v. State of Rajasthan 1985 Cri LR (Raj) 73, the dying declaration was recorded by the Tehsildar in presence of three relatives of the deceased, there was great variance in between the two dying declarations, there was no other evidence connecting the accused with the crime and as such reliance was not placed on the second dying declaration.

QUESTION NO. 4.

18. It is correct that the names of the accused persons and the prosecution witnesses are not mentioned in the Inquest Reports Ex. P/3 to Ex. P/7 and Ex. P/57 and Panchayat Namas Ex. P/7 to P/10 and P/ 58. Under the facts and circumstances of the case, it cannot be said that the accused persons have falsely been implicated in this case. The learned counsel for the convict-appellants relied upon the following observations made in Ram Jeevan v. State of Rajasthan (1987) 2 WLN 316 at page 322 para 12:--

The inquest report and the site inspection note are documents of vital importance as they give an early version of the occurrence. The omission of the names of the assailnats and the eye-witnesses in these documents is a significant infirmity in the given circumstances of the instant case.

It has been observed in Khujji v. State of M.P. AIR 1991 SC 1853 at page 1859: 1991 Cri LJ 2653 at p. 2660 para 8, as follows:--

It was faintly submitted by counsel for the apellant that the evidence of eye-witnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time. We see no force in this submission in view of the clear pronouncement of this Court in Pedda Narayana v. State of Andhra Pradesh 1975 Supp. SCR 84 : 1975 Cri LJ 1062. Referring to Section 174 of the Code of Criminal Procedure this Court observed at page 89 (of Supp. SCR): (at p. 1066 of AIR) as under:--

A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascetain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaultd or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. Ln these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. We respectfully agree and see no merit in this submission made by the counsel for the appellant.

Reference of Pedda Narayana v. State 1975 SCC (Cr.) 427 : 1975 Cri LJ 1062, Yogendra v. State 1979 Cri LR (Raj.) 443 and Eqbal Beg v. State of A.P. AIR 1987 SC 923 : 1987 Cri LJ 838 may also be made here. It may be mentioned here that in these reports Ex. P/3 to P/6 and Panchayat Namas Ex. P/7 to P/10, the number and date of the FIR Ex. P/93 i.e. No. 43 of July 23, 1986 are duly mentioned. It is not in dispute that the names of all four accused persons and the eye witnesses are mentioned in the FIR Ex. P/93.

QUESTION NO. 5

19. Report Ex. P/102 was recorded in the geneal diary of the Police Station, Kotwali, Churu at 12.30 a.m. during the night intervening 22nd and 23nd July, 1986 on the information given by Parsaram PW 17 Sarpanch, Gram Panchayat, Khandwa. He gave this information from Bhartiya General Hospital, churu about the occurrence. Thereon, S.I. Munshi Ram PW 25 proceeded to the hospital along with police constables. This report Ex. P/102 further shows that he came back to the Kotwali at 2 a.m. with the statement (Ex. P/65) of Kashi Ram recorded by him there and it was sent through constable Nand Singh in a jeep to the Police Station, Ratan Nagar for registration of the case. S.I. Munshiram PW 25 has also deposed so. Nothing could be elicited out in his cross-examination on this point. The statement Ex. P/65 also shows that it was recorded at 2 a.m.' on July 23, 1986. In the end, the following note has been given by the S.H.O., Ratan Nagar (Churu) the same day at 3.30 a.m.:--

^mijksDr ipkZ C;ku Jh dk'kh jkeiq= nscnkl e; dk;Zokgh iqfyl ,l- ,p- vks- ih- ,l- dksrokyh pw: dk dkfu uUn flagua- 95 tfj;s ljdkjh thi ds Fkkuk gtk ij is'k dh ftldh udy v{kj l v{kj ,Q- vkbZ-vkj- jftLVj esa dh xbZ A etewu iPkkZ C;ku ls ekeyk tweZ nQk 302] 307] 324] 24]120 ch vkbZ- ih- lh- ds odq esa vkuk ik;k tkrk gS vr% eq- ua- 43@86cnQk etdwj esa dk;e dj jokuk ?kVuk LFky gqvk A izfr;k o ,l- vkj- fu;ekuqlkj tkjhdh xbZ A

gLrk{kj

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jruuxj] pq:

23&7&86

3-30 ,- ,e-

On its basis, FIR No. 43 dated July 23, 1986 Ex. P/93 was recorded by the S.H.O. The prosecution has examined the S.H.O., Ratan Nagar, Amar Singh PW 23. He has deposed that on the basis of the statement Ex. P/ 65, he recorded the FIR Ex. P/93. He has not been cross-examined at ail on this point. FIR P/93 shows that it was received by Munsiff cum judicial Magistrate, Churu on July 24, 1986 at 4.30 p.m. From the mere fact that the Magistrate received the FIR Ex. P/93 on July 24, 1986, it cannot be said that it was not recorded at 3.30 a.m. On July 23, 1986. It bears the despatch No. 1411A dated July 23, 1986. Amar Singh PW 23 has not been cross-examined to elicit as to why FIR Ex. P/93 was not received by the Magistrate the same day. In Jalal v. State of Rajasthan 1984 Raj Cri C 274, there were other suspicious circumstances in the case and the delay in the receipt of the report by the Magistrate further created doubt in the prosecution story. In Paresh Kalyandas Bhavsar v. Sadiq Yakub Bhai AIR 1993 SC 1544 at page 1549 : 1993 Cri LJ 1857 at p. 1862 para 7, it has been observed that some delay in sending the report to the Magistrate is not a ground to doubt its genuineness. Reference of Pala Singh v. State of Punjab AIR 1972 SC 2679: 1973 Cri LJ 59 and State of U. P. v. Gokaran AIR 1985 SC 131 : 1985 Cri LJ 511, may also be made here. In view of these facts and circumstances, it can safely be held that the statement Ex. P/65 of the injured Kashi Ram PW 13 was recorded at 2 a.m. on July 23, 1986 and on its basis FIR Ex. P/93 was recorded at 3.30 a.m. on July 23, 1986.

QUESTION NO. 6

20. The following table shows the weapons with which the accused persons, according to the FIR Ex. P/93, eye witnesses and recovery memos, were armed at the time of occurrence:--

STATEMENT IN RESPECT OF ARMS

Name of According to

Accused F. I. R. Ex. Name of Witness According to

P/93 recovery Memos *

---------------------------------------------------------------------------------------------

Banarsi Chandra- Kashiram Kamla Teejo Shanker

PW 11 wati PW 13 PW14 PW 15 PW19

PW 12 (inj.) (inj.) (inj.) (inj.)

(injured)

--------------------------------------------------------------------------------------------

Mahaveer Bhala Kasi Gadasi Bhala Gadasi Sedasi Sela Gadasi

(Ex.P/82)

Rajudas Barchi Gadasi Barchi Barchi Barchi Barchi Barchi Barchi

(Ex. P/83)

Ganesh Das Barchi Barchi Silent Barchi Silent Silent Barchi Barchi

(Ex.P/84)

Bhagwani Gadasi Gadasi Silent Gadasi Silent Silent Gadasi Gadasi

(Ex. P/85)

21. All the aforesaid eye-witnesses are rural and are illiterate. All, except Shankar PW 19, have put their thumb impressions on their statement. Shanker PW.19 was 11 years' old at the time his statement was recorded. While judging the testimony of rural witnesses, the court cannot apply the same standard of exactitude and consistency as for that of urban witnesses (AIR 1973 SC 2262) (sic). No question was put to any of these witnesses to ascertain whether they knew the distinction and difference in between the aforesaid weapons. All four accused persons had sharp edged weapons. The metalic part of a Pharsa and Gadasi is rectangular in shape, of a Barchi is semicircular and of a Bhala is triangular. Both the occurrences took place during the night. The variance which has appeared in between the FIR Ex. P/93 and the recovery memos and also in between the FIR Ex. P/93 and the statement of the aforesaid eye-witnesses are not to the extent which may go to indicate that these witnesses were not present at the time of occurrence. All of them except Banarsi PW 11 received injuries during the occurrences. The presence of Banarsi cannot also be doubted as the second occurrence took place in her house during the night and at that time she was expected to remain there. No suggestion was put in her cross-examination that she was not present in her house at the time of occurrence. It has been observed in Roop Singh v. State of Punjab AIR 1973 SC 2617 : 1973 Cri LJ 1778, that there is nothing surprising for a witness who is the close relation of deceased first to run away from the scene of occurrence due to fear and to stop at a safe distance and from there looking behind and seeing the assault on the deceased persons.

22. It is correct that two lathis were recovered through recovery memo Ex. P/87 from the house of the accused Mahaveer. From this fact, it cannot be said that they were also used in any of the aforesaid two occurrences, Lathis are mostly found in houses of rural areas. It is also correct that from the first place of occurrence two lathis were recovered through recovery memo Ex. P/15 and one iron part of the 'Bhala' was recovered through recovery memo Ex. P/ll. These recoveries are not inconsistent with the prosecution story. During the attack, metalic part of the Bhala might have separated. The deceased and the injured persons might be having lathis. Generally, rural persons keep lathis with them when they move out from their village. The accused Ganesh Das, Mahaveer and Rajudas were arrested on July 23, 1986 at 11.30 p.m. by the police through arrest memos Ex. P/ 76, P/ 78 and P/77 respectively. They were produced by the Deputy Superintendent of Police, Churu before the Munsif cum Judicial Magistrate, Churu with an application for police remand vide application, paper No. B2/ 2 of the file of the criminal case No. 178/ 86 -- State v. Ganesh Das of the court of Munsif cum Judicial Magistrate, Churu. After hearing the accused persons and perusing the case diary, the learned Munsif cum Judicial Magistrate granted police remand for 9 days by his order dated July 24, 1986. It is clearly recited in this order ^^MkDVjh eqvk;uk ufg pkgk A** According to these arrest memos, no injury was found on the body of any of these three accused persons. On the contrary, blood stains were found on their Baniyans.

QUESTION NO. 7.

23. Both the occurrences took place during the night intervening 22nd, 23rd July, 1986 at about 10 p.m. On 22nd July, 1986 the hindi miti was Badi Ekam. It was, therefore, not a dark night. Moon was shining at the time of occurrence. Moreover, the deceased, injured and accused persons are/were the son, grand sons and grand daughters/ daughter-in-law of Mangal Das. They live/lived in adjacent houses vide site plan Ex. 1A. Their agriculatural lands were also close to each other. They were familiar with the voice of each other. No question was put in the cross-examination of any of the eye-witnesses suggesting that he/she was unable to identify the assailants. Banarsi P.W. 11 has specifically stated in her cross-examination that moon was shining at the time of occurrence.

QUESTION NO. 8.

24. It is correct that the eye-witnesses, namely, Banarsi PW 11, Chandrawati PW 12, Kashi Ram PW 13, Kamla PW 14, Teejo PW 15 and Shanker PW 19 have not identified the weapons with which injuries were inflicited. upon them by the accused persons while their statements were recorded during the trial. In fact none of them was shown any weapon. From this omission alone, the testimony of these eye witnesses is not rendered doubtful when it is otherwise reliable trustworthy and inspires confidence.

QUESTION NO. 9.

25. It is correct that the places where the injured persons, accused persons and prosecution witnesses were at the time of occurrence have not been shown in the site plans Ex. P/1 and P/2. These site plans duly show the places where the deceased were lying. Site plan Ex. P/1 duly shows the place wherefrom the accused persons came to the place of occurrence. The learned counsel for the accused-appellants relied upon the following observations made in Hukmat Rai v. State 1987 Cri LR (Raj) 718 at page 723 para 9:--

But in the site plan Ex. P2 it has not been mentioned as to where the deceased and injured persons were standing when the gun shots hit them. According to prosecution evidence it was shown in Ex. P/2 that Hanif and Mst. Bashiri deceased were lying on cot at such and such place. Hanif was lying on the roof of the room while Mst. Bashiri was lying in the chow. But the prosecution has not pointed out the places in Ex. P2 where the gun fire shot hit the deceased and the injured persons. According to him this is a great lacuna in the prosecution case and it is not clear as to where the deceased and the injured were standing when they were hit by gun shots. The learned Public prosecutor and Shri Mathur learned counsel for the complainant could not reply this argument. He has admitted that in this site plan Ex. P2, the places have not been mentioned where the deceased and injured persons were standing and where they were hit with gun shots. We have also considered the arguments advanced by Shri Ganpat Ram learned counsel for the appellants and after seeing the siteplan Ex. P/2, we are also not convinced with the prosecution story that the deceased and the injured persons were hit in the chowk shown in Ex. P/2. The Investigating Officer should have pointed out the places where deceased Hanif and Mst. Bashiri were standing as well as other injured persons were standing at the time of gun fire. As in the prosecution evidence that the dead bodies of Hanif and Mst. Bashiri were lying on cot when Police arrived at the most, is clear from the photos produced by the prosecution which are Ex. P3 to Ex. P8. Thus, it is clear that after the incident the dead bodies were brought and kept in the chowk. Gaffar PW 8 has stated that Hanif was taken not through stair-case but he was put on the cot and the cot was lifted with a rope to the roof. It means that Hanif was hit by gun fire at some other place and he was brought on a cot and then kept on the roof. We fail to understand why the dead body was removed from the place where gun shot hit Hanif. They should have waited for the arrival of Police and then they could have removed the dead body from the spot. Similarly, the dead body of Mst. Bashiri was lying on cot in the chowk at place 'A'. It is not clear as to from which place the dead body of Mst. Bashiri was brought. At which place the gun shot hit Mst. Bashiri was not proved by the prosecution. So this is a lacuna in the prosecution story. The argument of learned counsel for the appellants that this lacuna creates doubt in the genuineness and cor-rectnes of the story has force. We also are of this opinion that the prosecution should have proved and should have shown in the site place Ex. P2 the place where the gun shot hit Hanif and Mst. Bashiri and other injured persons. Not proving this fact certainly creates doubt in the correctness of the prosecution story.

Reference was also made to Moti v. State ILR (1962) 12 Rajasthan 383.

26. With all due respect. the above quoted observations are contrary to the below-noted observations of the Hon'ble Supreme Court made much earlier in Tori Singh v. State of Uttar Pradesh AIR 1962 SC 399 at page 401: 1962 (1) Cri LJ 469 at p. 471 para 7:--

In the second place, the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eye-witness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.

Sat Kumar v. State of Haryana AIR 1974 SC 294 : 1974 Cri LJ 345 and Jit Singh v. State of Punjab AIR 1976 SC 1421 : 1976 Cri LJ 1162, may also be made here. In Moti v. State ILR (1962) 12 Rajasthan 383, there is no reference of Tori Singh v. State of U.P. AIR 1962 SC 399 : (1962 (1) Cri LJ 469.

QUESTION NO. 10.

27. While examining the accused Rajudas and Mahaveer Prasad under Section 313, Cr.P.C., each stated--

^fyf[kr c;ku is'k dkjrk gwW tks c;ku dk fgLlkle>k tkos]

It has been contended by the learned counsel for the convict-appellants that the said written statements filed by the accused Mahaveer Prasad and Rajudas shall be deemed to have been filed under Section 233(2), Cr.P.C. and the provisions of this sub-section simply require that judge shall file it with the record and they do not require that the same shall be taken into consideration. There is no force in this contention for more than one reasons. Firstly, both the accused Rajudas and Mahaveer Prasad have clearly stated that their written-statement may be treated as a part of their statements recorded under Section 313, Cr.P.C. Secondly, these statements were filed before they were called upon to enter on their defence as required under Section 233(1), Cr.P.C. Thirdly, the clause 'Judge shall file it with the record' appearing in Section 233(2), Cr.P.C. does not mean that it should simply remain on the record and cannot be taken into consideration. It has been held in Harbhajan Singh v. State of Punjab AIR 1966 SC 97 : 1966 Cri LJ 82 that written statement filed by an accused under Section 256(2), Cr.P.C. 1898 (similar to Section 233(2), Cr.P.C. 1973) has to be taken into consideration even if it is filed after inordinate delay.

28. It was further contended by the learned counsel for the accused-appellants that the inculpatory part of the statement of accused given under Section 313, Cr.P.C. cannot alone be considered and his entire statement has to be considered. He relied upon the following observations made in Heeralal v. State of Rajasthan 1986 Cri LR (Raj) 627 at page 633, para 9:

Where the accused makes a statement containing inculpatory as well as exculpatory passages, it is not open to the Court to take into consideration the inculpatory part and to reject or ignore the exculpatory part. The entire statement has to be read and considered. Of course, after reading and taking into consideration the entire statement of the accused, the exculpatory part can be rejected when it is inherently improbable or there is reliable evidence to show that exculpatory part is false or unfounded.

Reliance was also placed on similar observations made in Kesra v. State of Rajasthan 1987 Cri LR (Raj) 497 at pages 501-502 para 12 and Bhanu v. State of Rajasthan (1986) 1 WLN 563 para 16. At the outset, it may be mentioned here that in these reported decisions, Nishikant Jha v. State of Bihar AIR 1969 SC 422 : 1969 Cri LJ 671 (5 Hon'ble Judges) was not cited and so considered wherein it has been held that the court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him. The ratio of the decision of this Constitution Bench of he Hon'ble Supreme Court has been summarised in Sampat Singh v. State of Rajasthan AIR 1969 SC 956 at page 960 : 1969 Cri LJ 1430 at p. 1434, as follows:

In Nishi Kant Jha v. State of Bihar Cr. A. No. 190 (N) of 1966, D/-2-12-1968: AIR 1969 SC 422 it was held by this Court that the court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. In that case, there were no eye-witnesses to the commission of the crime and the evidence was all circumstantial and the statement of the accused that he was present at the scene of the crime was a vital circumstance which taken in conjunction with other circumstances led the court to come to the conclusion that he was guilty of the crime imputed to him.

29. It has also been observed in Mohan Lal v. Ajit Singh AIR 1978 SC 1183 : 1978 Cri LJ 1107 para 22, as follows:--

22. An attempt was made to argue that if the statement of the respondent is to be considered at all, it must be taken as a whole and that it is not permissible to act upon one portion of the statement which shows the presence of the respondent in the company of the deceased, and leave out those portions which are exculpatory. It will be enough to say that the matter has been examined by this Court in Nishi Kant Jha v. State of Bihar (1969) 2 SCR 1033 : AIR 1969 SC 422 : 1969 Cri LJ 671 and as the evidence on the record disproves the exculpatory part of the respondent's statement in the trial court, it is clearly permissible to accept that part of the statement which accords with the evidence on the record, and to act upon it.

Parts of the written statements of the accused Rajudas and Mahaveer can well be used against them.

QUESTION NO. 11.

30. It is correct that the Investigating Officer Shanker Lal Vashishtha Dy. S. P. was not examined in this case. The order-sheet dated 1-5-1989 shows that he died and the application of the prosecution for producing secondary evidence was allowed and co-investigating officer Munshi Ram PW 25 was examined to prove the documents prepared by Shri Shanker Lal Vashishtha. No adverse inference can, therefore be drawn against the prosecution for not producing him.

QUESTION NO. 12

31. The following facts and circumstances leave no manner of doubt that Kashi Ram PW 13 was an eye witness of the first occurrence which took place in the Beed i.e. in the vicinity of the village Khandasi:--

1. The accused Rajudas and Mahaveer Prasad admitted in their written statements filed under Section 313, Cr.P.C. that Kashi Ram PW 13 was also in the camel cart alongwith Bakhtawari, Jetha Ram, Ram Kumar and one child.

2. It is well proved from the statement of Dr. S. K. Kaushik PW 3 and the injury --report Ex. P/29 that an incised wound was found on his left elbow when he examined him at 2.00 a.m. on July 23, 1986.

3. During the night intervening 22nd and 23rd July, 1986 he was admitted in the Bhartiya General Hospital, Churn.

4. His statement Ex. P/ 65 was recorded lay SHO, Kotwali, Chum, Munshi Ram at 2.00 a.m. on July 23, 1986 and on its basis FIR Ex. P/93 was recorded at the Police Station, Ratan Nagar at 3.30 p.m. on July 23, 1986.

5. The eye witness and injured Shanker Das PW 19 has said that his maternal uncle Kashi Ram PW 13 was also with them while returning from Churu to the village.

6. Jetha Ram has disclosed in his dying declaration Ex. P/104 that the brother-in-law (SALA) of Laxman Das (father of the deceased Ram Kumar and Shishupal and injured Shanker PW 19 and husband of deceased Bakhtawari) resident of village Buchal was sleeping in the camel cart at the time of occurrence. It is well proved from the evidence on record that Kashi Ram PW 13 is the brother-in-law (SALA) of Laxman Das and resides in village Buchal.

32. It has been observed in State of U.P. v. Jodha Singh AIR 1989 SC 1822 at page 1826, para 26, as follows:

the presence of PW 1 at the scene can never be doubted because of the fact that he was one of the victims of the attack. The accused also admits his presence there. He is the first informant in the case. Such being the position his evidence cannot be brushed aside lightly by saying that he is an interested witness....

QUESTION. NO. 13.

33. It is correct that blood has not been shown at the places of the occurrences in the site plans Ex. P/1 and P/2. FIRD MAURAS Ex. P/1A and P/2A are part of these site plans and were prepared simultaneously. They duly show the presence of blood at the places of occurrences. Panchayatnamas Ex. P/4 and P/5 and description memos of the dead bodies Ex. P/7, P/8, P/9 and P/10 also show that blood was found at the places where the dead bodies were lying. Through recovery memos Ex. P/12, P/13, P/34 and P/56 (second place of occurrence), blood smeared mud was recovered from both the places of occurrence by the Investigating Officer Shri Shanker Lal Vashishtha. Two lathis bans and one pair of shoe recovered through recovery memo Ex. P/15, camel cart was taken in custory through memo Ex. P/22 and 'Gudra' was seized through recovery memo Ex. P/20, all from the first place of occurrence. In any view of the matter, it cannot be said that blood was not found at the places of the occurrences. In Hakmat Rai v. State of Rajasthan 1987 Cri LR (Raj) 718, relied upon by the learned counsel for the convict appellants, blood was not in fact shown in the site-plan containing the details as separately mentioned in the instant case in 'Halat Maukas' Ex. P/1A and P/2A.

34. The post mortem reports of the five deceased Bakhtawari, Ram Kumar, Shishu-pal, Jetha Ram and Mahendra and injury reports of Kamla. Teejo, Chandrawati, Kashiram and Shanker show that they received the following injuries:--

A. DECEASED.

(1) Mst. Bakhtawari (Postmortem Report Ex. P/35)

(a) External 1. Incised wound 3 cm x 1 cm x 1 cm on right buttock just lateral to annus.

2. Two linear parallel incised wounds of size 15 cm x 1 cm x .5 cm on back

between 2nd scapula.

3. Incised wound 10 cm x 6 cm x 1 cm left shoulder with fracture of spinous

process of scapula.

(b) Internal Incised wound extending from left maxilla bone up-

(Cranium & wards, backward and inwards to occipital bone 20 cm x 6

spinal cord) cm x 4 cm., fracture of left maxilla, temporal, parietal and

occipital bone fractured through the whole length and

breadth of wound. Small piece of fractured bone present

in the wound and lacerated brain tissue present.

(c) Cause of death Injuries to skull bones leading to laceration of brain

tissues, shock, coma and death.

(2) Ram Kumar (Postmortem report Ex. P/34)

(a) External 1. Incised wound 30 cm x 15 cm (SIC) right side

neck, mendible cut and occipital bone fractured

vertebral column divided at the level of C3 & C4

vertebral severed completely at this level along with

spinal cord. Mandible and carotid vessels also severed.

2. Incised wound (right superclavicular) region) about

15 cm x 15 cm x depth 8 cm app. on lateral side whole

2 cm on medical side. Clavicle fractured at lateral

1/3rd and big vessels (carotid) injured.

3. Contusion: 15 cm x 4 cm on lateral aspect right thigh.

(b) Internal Brain and spinal cord.

Fracture line extending from occipital bone upward

involving parietal and temporal bone. Parietal bone

(fractured) into small fragment in area of 10 cm x 5 cm.

Underlying membrane and brain tissue lacerated and

blood came out 200 cc app.

(c) Cause of Death Damage to big vessels-carotid Teading to external

haemorrhage. Vertebral column and spinal cord severed.

Fracture of skull bone leading to laceration of brain

tissues.

3. Shishupal (Postmortem Report Ex. P/33)

(a) External 1. Incised wound 10 cm x 4 cm x 6 cm extending from left

Nostral to left ear. Maxillary and temporary bone cut

and fractured.

2. Incised wound 6 cm x 4 cm x 4 cm from middle chin to

angle of mandible. Fracture of mandible present on

right side. Soft tissues and blood vessels attached to

mandible and deep to it injured and cut.

3. Incised wound 8 cm x 6 cm x bone deep on scap. aspect

right shoulder.

4. Incised wound 12 cm x 8 cm x 1 cm on lateral aspect

right shoulder.

(b) Internal Brain and spinal cord.

There is fracture of left temporary bone. Fracture line

extending upward backward and posteriorly from Injury

No. 1 overlying membrane congested, there is subdural

haematoma 4 cm x 3 cm.

(c) Cause of death 1. Head injury due to fracture Temporal bone and

subdural haematoma leftside.

2. Massive external haemorrhage from external injury

Nos. 1 and 2.

4. Jetha Ram (Injury Report Ex. P/ 30)

Penetrating wound 3' x 1.5' x communicating with

andommal cavity (omentum prolapsing through wound)

between 10th and 11th rib in between mid clavicular and

ant. axillary line left side. Bleeding from wound present.

5. Jetha Ram (Postmortem Report Ex. P/31)

(a) External 3' x 1.5' x Communicating with abdominal cavity,

oblique (actual depth cannot be assessed) omentum lying

outside through whole widthy wound. Wound is situated

in 10th left Intercostal space (between 10th and 11th

space).

(b) Internal 1. 9th, 10th and 11th rib fractured left side.

2. Intercostal muscle of 10th left I. C. space and

diaphragm injured.

3. Peritonal cavity full of dark coloured blood appx.

1500 CC.

4. Big hole in mesentry of descending colon size 15 cm

10 cm branches of blood vessels supplying cut (inj.

mesentric cavity).

Big haematoma present at he side about the size of a fist.

5. Left kidney injured at its upper part cut into two

pieces-big haematoma present at the site and around

the just app. to the size of fist.

(c) Cause of death. Internal haemorrhage due to injury to mesentric blood

vessel and left kidney leading to shock, coma and death.

(6) Mahendra (Postmortem Report Ex. P/32)

(a) External 1. Incised wound extending from right angle of mouth

pinna of right ear 2 cm x 3 cm x 8 cm, Maxillary

temporal and Ramme of mendible cut.

Soft tissue and blood vessel-cut. Oral cavity opened

and tongue visible in floor of mouth.

2. Two incised wounds--

(a) 5 cm x 3 cm x bone deep over ant. chest wall-right

side.

(b) 5 cm x 3 cm x 1 cm scap. aspect right shoulder.

3. Contusion-- 5 cm x 4 cm rt. ingienal region, bloodish

in clour.

4. Incised wound: 3 cm x 5 cm x .5 cm rt. little finger

bone also fractured. (5th metacarpal).

(b) Internal Healthy.

(c) Cause of death Extensive external haemorrhage from Injury No. 1 and

other injuries leading to shock and death.

B. INJURED

(1) P. W. 14 Kamla Devi (Injury Report Ex. P/25)

1. Incised wound clotted 1' x 2' x 2' Midline frantal region-scalp near hair line.

2. Contusion red in colour. 3 cm x 2 cm Sup. aspect left shoulder.

(2) P. W. 15 Teejo (Injury Report Ex. P/26)

1. Contusion red in colour. 5 cm x 2 cm Dorsum Rt. hand.

(3) P. W. 12 Mst. Chandrawati (Injury Report Ex. P/27)

1. Contusion red in colour 12 cm x 7 cm Post, aspect upper 2/3 left forearm.

2. Incised wound 1.7' x 1' x 2' Left side back post.

simple to shoulder.

3. Incised wound triangular 3' x 2' x 2' Rt. frontal region scalp.

in shape clotted blood

present.

4. Incised wound 1' x 1' x 2', Midline scalp.

5. Incised would clotted 2' x 1'x 1' Spinus process of scapula.

blood present. (bone cut)

6. Incised wound clotted 4'x 1.2'x 1' Superior aspect right shoulder.

blood present.

7. Contusion, red in colour. 10 cm x 8 cm Post, aspect it. elbow.

8. Incised wound 3'x 1'x 5' Palmer aspect rt. hand.

9. Incised wound proximal 1' x 1' x 2' Proximal phelynx rt. 4th finger.

phalynx bone cut.

10. Two abrassions 2 cm x 1 cm Ant. aspect left upper arm

1 cm x 1 cm

(4) P. W. 13 Kashi Ram (Injury Report Ex. P/29)

1. Incised wound bleeding 3'x 5'x 2' on posterior lateral aspect of left elbow.

present

(5) P. W. 19 Shanker (Injury Report Ex. P/28)

1. Incised wound occipital 5' x 3' x 1 Post, aspect neck at base of skull.

bone pulpable in the

floor of wound.

Clotted blood present.

2. Incised wound--Clavical 4.5' x .2' x 1' Just below inj. No. 1.

vertebrae I and II

pulpable.

3. Abrasion--clotted blood 10 cm x 4 cm Vertically placed on back just below injury

present. No. 2

4. Contusion-red in colour. 4 cm x 2 cm On right shoulder.

35. The statements of injured persons, namely, Chandrawati PW 12, Kashi Ram PW 13, Kamla PW 14, Teejo PW 15 and Shanker PW 19 and eye-witness Banarsi PW 11 show that convict appellants inflicted injuries to the injured persons and deceased as shown in the following statement:

STATEMENT OF INJURIES INFLICTED

Name of accused personsName of Prosecution witnesses.Banarsi

PW 11Chandrawati

PW 12Kashiram

PW 13Kamla

PW 14Teejo

PW 15Shanker

PW 19As per FIR

Ex P/932345678MahaveerMahaveer inflicted in-juries on Mst. Teejo with a Bhala and on Mahendra with a Barchi.Mahaveer Das inflicted in-juries on her son Mahendra and also on various parts of her body wht gadasi.Mahaveer cut nexk of Ram Kumar, in-flicted in -juries to Jetha Mali & 3-4 blows on Bakhtawari with Bhala.Mahaveer inflicted in-juries on her sister Teejo with gadasi, Rajudas & Mahaveer cut into pieces her nephew Mahendra with their gadasi and Barchi and with Gadasi inflicted in-juries to her Bhabhi Chndra-wati.Mahaveer and Raju-das cut into pieces her nephew Mahendra & Mahaveer caused in-juries to her Bhabhi Chnadrawati and her sister Kamla and also gave a gadasi blow on her. Mahaveer injured Jetha Ram Mali and gave blows on his mother and brother Sishupal with Sela.Ganesh Das, Raju Das and Mahaveer gave Pharsa blows to all occupants of the camel cart in-cluding Jetha Ram.Raju DasRajudas inflicted injuries with his Barchi on her sister and sister-in-law.Raju Das inflicted Barchi on her son Mahendra and inflicted injuries on various parts of her body.Raju Das cut thet neck of Ram Kumar with his Barchi, he aimed his Barchi on his head but he raised his hand and Barchi caused injuty on his elbow.Raju Das cut the nexk of RAm Kumar with his Barchi, he aimed his Barchi on his head but he raised his hand and Barchi caused injury to her Bhabhi Chandrawati.Mahaveer and Rajudas cut nephew Mahendra and caused injuries to her Bhabhi Chnadrawati.Raju inflicted Barchi blows upon Ram Kumar his mother, Kashiram, Jetharam, brothers RAmkumar and Shishupal and also on his body.Ganeshdas Mahaveer and Rajudsas attacked them with their Bhala and Barchi, Raju DAs caused injuries to Kashiram P.W. 13.GaneshdasGanesh Das inflicted injuries on Mahendra and her sister-in-las with a Barchi.-Ganeshdas inflicted injuries to Shishupal and Shanker.--Ganeshdas caused injuries with his Barchi to Kashiram, his mother and brother Shishupal and to him.Ganeshdas, Mahaveer and Rajudas attacked them with their Barch Bhala and Gadasi Ganeshdas also caused injuries to RAm Kumar, Shanker and Shishupal with his Barchi.BhagwaniBhagwani inflicted injuries with Gadasi on her sisters and sister-in-law.----Bhagwani gave about 10 Gadasi blows on his mother and 3 blows to Shishupal.Bhagwani caught hold the 'dori' of the camelcart and asked the coaccused to do away the occupant of the camel cart.While standing near camel cart, all four accused caused injuries on Bakhtawari, Shanker and Shishupal while they were sitting in the camel-cart.All four accused inflicted injuries to his mother, younger brother Shishupal and Jetha Ram.

36. It is correct that the statements of eye witnesses are not strictly in conformity with the medical evidence, namely, injury report Ex. P/25 to P/29 and the post-mortem reports Ex. P/31 to Ex. P/35. It is common experience that the discrepancies do occur even in the statements of perfectly honest witnesses which are really due to difference in individual faculties with regard to observations, recollection and recital of details and unless there is any good ground to indicate that they are due to deliberate attempt to suppress or depart from the truth, it is unfair to discard the direct testimony of witnesses merely on account of such discrepancies, when there is general agreement's to material circumstances. Photographic picturisation is not possible (Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 at Page 2634 : 1973 Cri L.11783 at pp. 1794-95 para 18. Ladies generally make exaggerations. Witness is not like a tape recorder (Kishan Narain v. State of Maharashtra AIR 1973 SC 2751 : 1973 Cri LJ 1839. There is a tendency amongst witnesses in our country to back up a good case by an exaggerated version (AIR 1988 SC 1998): (1989 Cri LJ 88). There is difference between rural and urban witnesses. Rural witnesses generally make exaggerations. It has been observed in Shivaji Sahebrao Bobade v. State oil Maharashtra AIR 1973 SC 2622 at page 2628 : 1973 Cri LJ 1783 at p. 1789 para 8, as follows:

Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familier in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in unessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.

37. If has been observed in State of U.P. v. Shanker AIR 1981 SC 897 at page 904 : 1981 Cri LJ 23 at p. 29 para 32, as follows:--

But the mere fact that the witness had not told the truth in regard to a peripheral matter would not justify a wholesale rejection of his evidence. Time and again, this Court has pointed out that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto.

38. It has been observed in Rana Pratap v. State of Haryana AIR 1983 SC 680 at page 682 : 1983 Cri LJ 1272 at p. 1274 (para 6), as follows:--

Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in has own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

39. In Hukmat Rai v. State of Rajashthan 1987 Criminal Law Reporter (Raj), 718, the facts and cricumstances were totally different. In this reported case, the accused fired shot from the roof of a house towards deceased who were standing in the chowk the direction of the gun shot was from upward to down ward but the doctor who conducted the post-mortem examination of the deceased deposed that the direction of the gun shot was not from upward to down ward but was straight. In such circumstances, it was held that the medical evidences amply falsify the prosecution stpry and the statement of witnesses.

40. It has been observed in Ranmal Samat v. State of Gujarat AIR 1993 SC 1676 at page 1677 : 1993 Cri LJ 1734 at p. 1735 para 5, as follows:--

The doctor, who conducted the postmortem, however, has clearly stated that the injuries found on the deceased could be caused by blunt edge of the axe. The occurrence took place during the night time and we cannot expect' the witness to have noticed whether sharp edge or the blunt edge of the axe was used. The medical evidence thus is not in conflict with the oral evidence. The evidences of P. Ws. 4 and 5 are no other than the parents of the deceased and they have come with cogent and convincing evidence.

41. It is correct that Dr. S.K. Kaushik PW 3 has disclosed in his cross-examination that the injuries found on the bodies of the deceased Bakhtawari, Ram Kumar and Shishupal could be caused by one weapon and injury to Jetha Ram could be caused by sharp stabbing weapon like Bhala or sela. It cannot be disputed that Farsa, Gadasi, Barchi and Bhala are all sharp edged weapons. At the risk of repetition, it may again be mentioned that the metalic part of a Farsa and Gadasi is rectangular in shape of a Barchi is semi circular and of a Bhala is triangular. A blow given by Farsa or Gadasi or Barchi on a body would cause incised wound, giving similar external appearance. The internal shape of such wounds would depend upon the direction and force vis-a-vis part of the body on which it is inflicted and the force with which blow is inflicted. The injuries caused by a Bhala would depend upon the manner it is used. If it is used as a stabbing weapon its both sharp edged sides, would cause stabbing wound. Incised wound would be caused on the body from one of its sharp edged side with which the body comes in contact. There is no great variance in between the medical evidence and statements of eye witnesses.

QUESTION NO. 15.

42. Constable Birbal Ram PW 10 has deposed that on August 24, 1986 he was posted in the Police Station, Ratan Nagar, he was directed to take 31 sealed packets of the FIR Case No. 43/86 to Jaipur for depositing them in the Forensic Science Laboratory, Rajasthan, Jaipur accordingly he took them to Jaipur and deposited the same in the sealed condition at Forensic Science Laboratory, Jaipur. He has further deposed that he made necessary entires Ex. P/63 and P/64 in the daily diary of the Police Station regarding his departure from and arrival there, he obtained the receipt Ex. P/62 (also Ex. P/94) from the said Laboratory and deposited the same in the Police Station. The investigating officer Munshi Ram PW 25 has deposed that 31 sealed packets were sent through constable Birbal Ram PW 10 along with forwarding letter dated August 22, 1986 (Ex. P/103) of the Superintendent of Police, Churu. It is thus clear that 31 sealed packets of this case were received by the Forensic Science Laboratory, Rajasthan, Jaipur on August 25, 1986 i.e. after 36 days. It may be mentioned here that the blood stained clothes of the injuried persons, namely, Kashi Ram, Kamla, Teejo and Chandrawati were taken on July 30, 1986. Under the facts and circumstances of the case, the delay in sending the sealed packets to the Forensic Science Laboratory, Rajasthan, Jaipur is not such as it may go to create any doubt in the prosecution case.

QUESTION NO. 16.

43. In the FIR Ex. P/93 and the Dying declaration Ex. P/104 of deceased Jetha Ram the names of all the four accused persons are mentioned. The eye witnesses of the first occurrence, namely, Kashi Ram PW 13 and Shanker PW 19 and of the second occurrence, namely, Banarsi PW 11, Chandrawati PW 12, KamlaPW 14 and Teejo PW 15 havedeposed that all the four accused persons were present at time of the occurrence and have participated in the commission of the said crime. The accused Rajudas admits in his written-statement filed under Section 313, Cr.P.C. that he was present at the time of both the said occurrences. Similarly, accused Mahaveer admits his presence at the time of the first occurrence. The arrest memos of the accused Ganesh Das, Rajudas and Mahaveer Ex. P/76, P/77 and P/78 respectively show that they were arrested Within 25 hours of the occurrence and blood was found on their Baniyans Articles 16, 17 and 18 respectively and the same were seized through the recovery memos Ex. P/79, P/80 and P/81 respectively. The report Ex. P/105 of the Forensic Science Laboratory read with the letter Ex. P/103 of the Superintendent of Police, Churu to the Director, Forensic Science Laboratory, Rajasthan, Jaipur shows that Baniyans Articles 17 and 18 of the accused Rajudas and Mahaveer respectively and the Barchi Article 20 recovered the instance of the accused Rajudas through recovery memo Ex. P/83 had blood of 'B' group. The blood found on the Kamij, Baniyan, Pajama and Kachhi Articles 5 and 12 of the deceased Ram Kumar and the blood found on the clothes of the deceased Bakhta-wari Art. 13 also had blood of 'B' Group. Similarly, Baniyan Art. 16 recovered through the recovery memo Ex. P/79 of the accused Ganesh Das was having blood of 'A' Group. Thus there is overwhelming evidence on record to prove that the accused appellants Ganesh Das, Rajudas and Mahaveer Das were present at the time of the occurrence and they actively participated in it. In other words, there is not slightest doubt in their presence and participation in the said crime.

44. However, the presence of the accused appellant Bhagwani is little doubtful as nothing special was noted either on her body or on her clothes at the time of her arrest and no blood was found on her clothes vide her arrest memo Ex. P/24 and Gadasi Article 22 recovered on her information Ex. P/98 through recovery memo Fx. P/85 had no blood. Chandrawati P.W. 12, Kashi Ram PW 13, Kamla PW 14 and Teejo PW 15 have not specifically stated that she (Bhagwani) caused injuries to a particular deceased/injured. She is, therefore, entitled to benefit of doubt.

45. Now the question is about the offences proved against the accused appellants Ganesh Das, Rajudas and Mahaveer. It is well proved from the statements of Kashi Ram PW 13 and Shanker PW 19 that the accused persons had hidden themselves in the bushes in the vicinity of village Khandwa, they were armed with said weapons, they came out therefrom seeing the camel cart in which the deceased Bakhtawari,Ram Kumar, Shishupal and Jetha Ram and injured Kashi Ram and Shanker were sitting. The accused persons pounced upon them and inflicted serious injuries with their sharp edged weapons. It is further well proved from the evidence on record that immediately thereafter the accused persons came to the house of Laxman Das and caused injuries to Chan-drawati PW 12, Kamal PW 14 and Teejo PW 15 and deceased Mahendra. All these facts and circumstances leave no manner of doubt that the accused Ganesh Das and his sons Rajudas and Mahaveer formed a common intention to do away Bakhtawari, Ram Kumar, Shishupal, Jetha Ram, Mahendra (deceased persons), Kashi Ram, Chandrawati, Shanker, Kamla and Teejo.

46. The deceased Jetha Ram has clearly disclosed in his dying declaration Ex. P/104 [that the accused Mahaveer inflicted a Bhala blow upon him. This finds corroboration from the statement of Kashi Ram PW 13 and Shanker PW 19. Jetha Ram received only this injury as is clear from his injury report Ex. P/30 and post-mortem report Ex. P/31. It was the cause of his death. It is thus well proved that the accused Mahaveer committed the murder of Jetha Ram.

47. Excluding the said one injury of the deceased Jetha Ram, the other four deceased, namely, Bakhtawari, Ram Kumar, Shishupal and Mahendra received 19 external injuries in all. Similarly, the injured, namely, Kamla, Teejo, Chandrawati, Kashi Ram and Shanker received 19 injuries in all. According to the evidence on record, external injuries received by deceased Bakhtawari, Ram Kumar and Shishuupal and the injured Kashi Ram and Shanker were caused by the accused Ganesh Das, Rajudas and Mahaveer and the injuries received by the deceased Mahendra and injured Chandrawati, Kamala and Teejo were caused by Rajudas and Mahaveer. It cannot be said with certainty that the injury/injuries resulting in the deaths of the deceased Bakhtawari, Ram Kumar, Shishupal and Mahendra was/were caused by the accused Ganesh Das or Rajudas or Mahaveer. As such none out of these three accused persons can be held guilty of the offence punishable under Section 302, I.P.C. for committing the murder of all the deceased, namely, Bakhtawari, Ram Kumar, Shishupal and Mahendra or any of them. All the three accused-appellants can safely be held guilty of the offences punishable under Section 302 read with Section 34, I.P.C. for the murders of Bakhtawari, Ram Kumar, Shishupal and Mahendra. The accused-appellants Ganesh Das and Rajudas are also guilty of offence punishable under Section 302 read with Section 34, I.P.C. for the murder of Jetha Ram. Similarly, offence punishable under Section 307, I.P.C. is well proved against all these three accused appellants, namely, Ganesh Das, Mahaveer Das and Raju Das. It was not necessary to separately convict and sentence them for the offences punishable under Sections 323, 324, 326 and 449, I.P.C. while they were convicted under Section 302 read with Section 34, 302 and 307, I.P.C, being parts of the latter offences. Their conviction and sentences have to be modified accordingly.

QUESTION NO. 17.

48. The accused appellant Mahaveer has only been guilty of the offence punishable under Section 302, I.P.C. for committing the murder of Jetha Ram. He caused only one injury to the deceased. For causing one injury resulting in death, it would not be appropriate to av/ard death sentence to him. The accused Ganesh Das, Mahaveer Das and Raju Das have been held guilty of offences punishable under Section 302 read with Section 34, I.P.C. and not of the offence punishable under Section 302, I.P.C. It would not, therefore, be appropriate to award death sentence. As such it is difficult to confirm the death sentences awarded to the accused appellants Rajudas and Mahaveer.

49. The learned counsel for the accused-appellants placed reliance on several reported decisions referred to in para 6 (supra). Some of them have been referred to in the foregoing paragraphs. Remaining have not been referred. Their facts and circumstances were totally different and distinguishable. In Jalal v. State of Rajasthan 1984 Raj Cri C 274 (DB), different versions were given by the prosecution witnesses about the start of the occurrence, different versions were given in court than in the police, explanation was nervousness, relative witnesses did not attend and take the injured to hospital, one of them went to write detailed FIR but did not go to police statement and their unnatural conduct showed that they (prosecution witnesses) were got actually present at the place of occurrence. In K. Ramachandra Reddy v. Public Prosecutor AIR 1976 SC 1994 : 1976 Cri LJ, 1548, the deceased did not disclose anything regarding occurrence on three previous occasions despite having opportunity to name his assailants and the Magistrate recording the dying declaration did not put any direct question regarding his mental condition. In Ishwar Singh v. State of U.P. AIR 1976 SC 2423 : 1976 Cri LJ 1883, it has been observed that failure to show the weapon of offence to the medical witness may sometimes cause aberration in the cause of justice. In B.N. Singh v. State of Gujarat AIR 1990 SC 1628 : 1990 Cri LJ 1601, the deceased received 11 injuries on both sides of chest, clavicular region, hypocondrial region abdomen, thigh, scapula and paravarpal region, reliance was not placed on the testimony of the interested witnesses, they said that three accused persons caught hold the deceased and remaining three accused inflicted injuries with their big knives and no injury was caused to accused persons holding the deceased. In Nirmal Kumar v. State of U.P. AIR 1992 SC 1131 : 1992 Cri LJ 1426, the prosecution case rested on child witness who did not disclose about the burning lantern at the place and time of the occurrence and the presence of the accused person in his previous statement recorded by the police and there were many material contradictions in his statement recorded by the trial court. The principles laid down in Dharma v. State 1950 Raj LW 357 : 1951 (52) Cri LJ 201, cannot be disputed. In this reported case, the eyewitnesses did not describe the part played by the assailant as well as the victim and the competency of the child witness was not tested before examining him. In State v. Narain Singh 1952 Raj LW 20, the child witness was not tested about his competency. In Surendra Singh v. State (1989) 2 Raj LW 73, there were contrandictions in the dying declarations and person named in the dying declaration was not examined by the prosecution but was produced in defence. In Bhanu v. State of Rajasthan (1986) 1 WLN 563, the prosecution failed to establish the participation of an accused. Satbir Singh v. State of Punjab (1993) 2 JT (SC) 159 : 1993 Cri LJ 1395, is a case of circumstantial evidence.

50. In the end, it is necessary to quote the weighty observations of their Lordships made in State of U.P. v. Anil Singh AIR 1988 SC 1998 : 1989 Cri LJ 88 para 15, which run as under:--

It is necessary to remember that a Judge does not preside over a crirhinal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties with the Judge has to perform.

It has been observed in Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 : 1973 Cri LJ 1783 para 6, as follows:--

Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro; the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men many go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author (Glanville Williams in Proof of Guilt) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals becomes general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon,that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.... ' In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.

51. In the result (i) The death sentences awarded to the accused appellants Raju Das and Mahaveer are not confirmed and the reference is rejected; (ii) The appeal preferred by the convict-appellant Bhagwani is allowed and she is acquitted of all charges. She shall be released forthwith, if not wanted in any other case; (iii) The conviction of the accused appellant Mahaveer under Section 302, I.P.C. and also under Section 302 read with Section 34, I.P.C. and sentence of life imprisonment are maintained; (iv) The conviction of the accused-appellants Ganesh Das and Rajudas under Section 302 read with Section 34, I.P.C. and sentence of life imprisonment are mainained, (v) The accused appellants Ganesh Das, Rajudas and Mahaveer are convicted under Section 307, I.P.C. instead of Section 307/34, I.P.C. and the sentence of rigorous imprisonment for 10 years awarded to each, one of them is maintained; (vi) It is not necessary to separately convict the accused-appellants under Sections 323, 324, 326 and 449, I.P.C. or 323, 324, 326 and 449 read with Section 34, I.P.C. as they have been held guilty of committing the said major offences; (vii) The sentences of fine awarded are set aside; (viii) The appeals of the convict-appellants Ganesh Das, Mahaveer Das and Rajudas are partly allowed.