JUDGMENT 1. - Jugla and his five other associates have filed this appeal against the judgement of the Additional Sessions Judge No.2 Jaipur City, Jaipur, dated 27th of November, 1970, convicting the accused-appellants under sections 147 and 302 read with section 149 Indian Penal Code. Under the former charge each one of the appellants is sentenced to six months' rigorous imprisonment while they have been awarded imprisonment for life under the latter charge for committing the murder of Gulab. 2. The prosecution case, as unfolded by Ramswaroop son of deceased Gulab at the trial, is as follow:- "On 29th of September, 1966, Gulab and Ramswaroop while going to their 'Dhani' stayed for some time at the house of Kastoora (PW 9). After smoking, both of them started for their Dhani at about dusk. It is said that when they reached 'Pantwali Tookri' they saw appellants Bhonriya, Sarwaniya and Shanker emerging out of the Bajra crop from one side and Jugla, Mooliya and Ramkumariya coming out from the Bajra field from another side. All of them had lathis in their hands. Jugla gave a call to his associates that the enemy had arrived and that he must be beaten. Both Ramswaroop and Gulab started running from that place and they were chased by the appellants. When the victim reached the Neem tree in Puranagaon, accused Bhonriya and Sarwaniya dealt lathi blows on the back of Gulab but these blows did not stop Gulab and he went on running towards the field of Nopa. The assailants, who were hotly chasing Gulab, took him over in the field of Nopa and it is said that Bhonriya gave a lathi blow on the head of deceased. Thereafter, Jugla inflicted a lathi injury on the nose of Gulab and Mooliya on his back Gulab fell down and thereafter it is stated that all the six accused persons indiscriminately gave beating to the deceased who was lying in the field. Ramswaroop raised a cry and he ran away from the spot to call persons from the village. When he was going towards the village he met Chhaju, Mahadeva, Kastoora, and Prabhu at a distance of about 10 paces from the field of Nopa, who were coming to that side after hearing the cries of Ramswaroop. Ramswaroop raised a cry and he ran away from the spot to call persons from the village. When he was going towards the village he met Chhaju, Mahadeva, Kastoora, and Prabhu at a distance of about 10 paces from the field of Nopa, who were coming to that side after hearing the cries of Ramswaroop. Rampal and Nathiya along with Parasiya also came to the spot of occurrence and it is alleged that they tried to persuade the assailants not to beat Gulab. When the assailants saw persons coming from the village they ran away. The story further reveals that there was enmity between Gulab and Jugla on the question of the boundary of their fields and the allegation of Ramswaroop is that this action was taken by the accused persons to take revenge against his father Kastoora, who was the real brother of the Gulab, then took Ramswaroop to the Police Out-Post, Jatwara which is situated at a distance of about five miles from the spot of occurrence and a report was lodged at that Police Out-Post at 11.50 p.m. which is Ex. P.8. The copy of that report was then forwarded to the Police Station, Bassi where a case under section 302 Indian Penal Code was registered taking down the report Ex. P.27. The Station House Officer came to the spot and prepared the inquest report (Ex. P.4) and site plan (Ex. P.5). The accused persons were arrested on the 30th of September, 1966. At the time of the arrest, two injuries were detected by the Station House Officer on the person of Jugla and he sent for medical examination, but the medical report of the doctor regarding the injures of Jugla has not been produced either by the prosecution or by the defence. The arrest memo, however, does not show the nature of the injuries which were detected by the Station House Officer Daryab Singh (PW 6), nor was any question put to him when he came in the witness-box about the injuries on body of Jugla." 3. The dead body of the Gulab was examined by Dr. Mohan Singh (PW.1) who found as many as 15 injuries on the dead body. The dead body of the Gulab was examined by Dr. Mohan Singh (PW.1) who found as many as 15 injuries on the dead body. On opening the body he discovered that the scalp of Gulab was congested under the injuries and the brain matter was injured and due to the fracture of the left parietal bone there was congestion at the middle part of the left parietal area. He also noticed fracture of the left parietal bone on its middle aspect and a fracture of nose at the root in the nassal bone. In his opinion, the cause of death was head injury and other multiple injures accompanied with internal haemorrhage in the Brain and due to concussion of the bone. All these injuries, which were noted by the doctor in the post-mortem report, were in his opinion, ante-mortem. According to him, the injuries on the head were sufficient in the ordinary course of nature to cause death. It is significant to note that when the doctor was put up in the witness box, no question was directed by the defence to illicit any information regarding the injuries of Jugla who was also examined by him after he was arrested. 4. The prosecution examined six eye witnesses, namely Mahadeva (PW 8), Chhaju (PW 15), Kastoora (PW 9), Ramswaroop (PW 13), Rampal (PW 2) and Nathiya (PW 3). Bhonrilal (PW 4) who was produced to prove the documents Exs. P.4 and P. 5 also in his cross-examination posed himself as an eye witness to the occurrence and he deposted certain things which are being relied upon by the defence. Besides these seven witnesses, Laliya (PW 10) and Shanker (PW 11) were also examined by the prosecution but they do not in any manner help the prosecution. 5. The most unfortunate aspect of this case is that the eye witnesses on whom reliance was placed by the prosecution turned hostile. Rampal (PW 2), who belongs to the same caste to which the accused persons belong, turned hostile at the stage of enquiry in the committing court, Mahadeva (PW 8) and Chhaju (PW 15), who belong to the caste the deceased, however, turned hostile at the stage of trial. Rampal (PW 2), who belongs to the same caste to which the accused persons belong, turned hostile at the stage of enquiry in the committing court, Mahadeva (PW 8) and Chhaju (PW 15), who belong to the caste the deceased, however, turned hostile at the stage of trial. Mahadeva, Chhaju and Rampal were examined in the committing court and therefore, their statements were tendered in evidence under section 288 of the Code of Criminal Procedure on the request of the Additional Public Prosecutor and their statements were taken on record as Exs. P. 26, P.30 and P.2 respectively. Kastoora (PW 9) is the real brother of deceased Gulab while Ramswaroop (PW 13) is his son. Both these witnesses have come out with a story which to a great extent finds support from the facts disclosed by them while lodging the first information report (Ex. P.8). 6. All the accused persons except Jugla pleaded alibi. The case of Jugla is that he found Gulab committing theft of Bajra and Moong in the field of Nopa when he was returning from Prempura. When he tried to catch Gulab. Gulab gave one lathi blow on his head and the other near his parietal region. He also hurled his Kamati (cane) to defend himself and raised a cry that the thief was beating him Gulab deals lathi blows on the person of the accused at various places with a result that he fell down on the ground and lost his consciousness. He could not, however, say as to after what time he returned to his senses but when he got his senses he found various persons of the village assembled at the field. He, however, denied the presence of the other accused at the field when this incident took place. The defence has not examined any witness to support this plea. 7. Learned counsel appearing on behalf of the appellants urged that except two witnesses namely, Kastoora (PW 9) and Ramswaroop (PW 13), all other witnesses have supported the plea of Jugla that a theft was committed in the file of Nopa and that a cry was raised by Jugla that a thief was there and he was beating. In this connection, it is vehemently urged by Mr. Goel that Bhonrilal (PW 4), who has not been declared hostile, supports the plea of Jugla. In this connection, it is vehemently urged by Mr. Goel that Bhonrilal (PW 4), who has not been declared hostile, supports the plea of Jugla. He also contended that the prosecution has miserably failed to explain the injuries on the person of Jugla and, therefore, the case of the prosecution as disclosed by Kastoora and Ramswaroop should not have been believed by the trial court. Apart from these arguments, a plea has been taken that the story of chasing the victims by the assailants party is a definite improvement as it does not find any mention in the first information report (EX P.). According to Mr. Goel, the authors of the first information report are Kastoora and Ramswaroop and if the story of chase was correct, then there was no reason why it could not find place in the document Ex. P.8. 8. During the course of arguments an application was submitted by Mr. Goel that Dr. Mohan Singh (PW 1) may be summoned and be examined to prove the injuries sustained by Jugla during the course of the incident, but this application, which was filed at this late stage, has been rejected by us because we do not find from the trend of the cross-examination of Kastoora (PW 9), Rameswaroop (PW 13), Mahadeva (PW 8) & Chhaju (PW 15) that Jugla sustained injures during the course of this incident, nor does the cross examination suggest that deceased Gulab was armed with a lathi, nor has any lathi been discovered from the place where the dead body of Gulab was lying. Learned Deputy Government Advocate, on the other hand, supported the judgement of the trial court and urged that in the peculiar circumstances of this case when all the eye witnesses, except the two near relations of the deceased, have been won over the defence, this Court should not discard the evidence of Kistoora (PW9) and Ramswaroop (PW 13)on the ground that something which ought to have been mentioned at the time when the first information report was lodged was disclosed by the authors of the report. He also argued that Ramswaroop was hardly a lad of 13 or 14 years and he lost the equilbarium of his mind as his father met the death before his eyes on account of the indiscriminate assault made on him by the assailants and, therefore, it was not expected of him to have given details about the incident to Kastoora who was the real author of the report and, therefore, the argument of improvements in the story of the prosecution, according to Dr. Tewari, is untenable. 9. We gave our anxious consideration to the pleas raised by Mr. Goel, but we are convinced that the prosecution has succeeded in establishing case of murder against the appellants. 10. Before dealing with the arguments of Mr. Goel, we would, however, like to mention that Mahadeva and Chhaju, who have divulged the case of the prosecution in the manner it has been disclosed by Kastoora (PW 9) and Ramswaroop (PW 13) at the committing stage, went hostile when they were put up in the witness box at the trial. Rampal (PW 2), who had witnessed the occurrence in his examination in-chief supported the prosecution case at the committing stage, but in his cross-examination he turned hostile and started admitting every suggestion given by the defence in cross-examination which go to help the defence version. This witness Rampal in-spite of hostile attitude has been examined as a prosecution witness at the trial and at the request of the Government Advocate his previous statement recorded at the committing stage was tendered in evidence which is Ex.P.2 on the record. We may state that the previous statement of Rampal (PW 2) however, cannot be relied upon by us in order to find support to the prosecution story as Rampal has given two distinct and different versions about this incident. Similar is the case of Nathiya (PW 3) who has re-sited from his previous statement as recorded under section 161 Criminal Procedure Code. His statement, therefore, cannot be pressed into service to find corroboration to the depositions made by Kastoora (PW 9) and Ramswaroop (PW 13). As regards Mahadeva (PW 8) and Chhaju (PW 15), it would suffice to say that they have come out with a case at the committing stage which was consistent with their previous depositions made before the investigating officer under section 161. Criminal Procedure Code but at the trial they turned hostile. As regards Mahadeva (PW 8) and Chhaju (PW 15), it would suffice to say that they have come out with a case at the committing stage which was consistent with their previous depositions made before the investigating officer under section 161. Criminal Procedure Code but at the trial they turned hostile. The statement of Mahadeva recorded by the committing court (Ex. P.26) and that of Chhaju (PW 15) Ex. P.39 have been tendered in evidence under section 288 Criminal Procedure Code which can be read as substantive piece of evidence against the accused appellants. On a careful reading of these two statements Ex. P. 26 and Ex. P.39 we can safely say that whatever statements are made by these two witnesses at the trial cannot be relied upon by us. Their previous statements, however, go to support the case of the prosecution as disclosed by Ramswaroop (PW 13) and Kastoora (PW 9). 11. This leaves us to examine the depositions of Ramswaroop and Kastoora and to see as to what extent reliance can be placed on their statements. Kastoora (PW 9) reached the spot of occurrence after hearing the cries raised by Ramswaroop (PW 13) and Gulab when beating was given to Gulab by his assailants and, therefore, Kastoora could not have seen the incident from the begining when Gulab and Ramswaroop were chased by the assailants. Kastoora simply states when he reached near the field of Nopa and was informed by Ramswaroop (PW 13) that his father Gulab was beaten by the Chamars, he went further towards the sport of occurrence and witnessed all the six persons named by him giving lathi blows to Gulab. Thereafter, Kastoora went with Ramswaroop to the Police Out-Post to lodge the report of this incident. He states that Ramswaroop was not in a fit state to make any deposition and he did not have any talk with him while going to the Police Out-Post. It is true that Ramswaroop appended his signatures to the document Ex. P.8, but he did not make any statement before Head Constable Jagdish Narain (PW 14) who had written the document Ex. P.8. Jagdish Narain supports Kastoora to this extent that Ramswaroop had admitted all those particulars which were given out by Kastoora in document Ex. P.8 as correct by nodding his head but he did not make any statement himself. 12. P.8. Jagdish Narain supports Kastoora to this extent that Ramswaroop had admitted all those particulars which were given out by Kastoora in document Ex. P.8 as correct by nodding his head but he did not make any statement himself. 12. Ramswaroop (PW 13) has deposed that when he and his father while going to their Dahni reached Pantwali Tookri, he saw three of the appellants, namely, Baouriya, Sarwaniya and Shanker coming out from the Bijra field from one side and Jugla, Mooliya and Ramkumariya from the other side and they started chasing Gulab and the witness when they actually started running towards the field of Nopa. He further states that when Gulab reached the Neem tree near Puranagaon, Bhonriya and Sarwaniya gave lathi blows on his back but he still continued running towards the field of Nopa & the assailant party went on chasing him. Thereafter, according to this witness, Bhonriya gave a lathi blow on the head of Gulab and then Jugla gave another blow on his nose and Mooliya gave a lathi blow on his back. Gulab, after receiving these injuries, fell down in the field of Nopa and thereafter all the six accused appellants started dealing lahti blows to the deceased. Ramswaroop (PW 13) has been cross-examined at length but nothing could be elicited out of him which may go to support the plea taken by Jugla that he alone was present at the scene of occurrence and no other accused appellant was on the spot. The learned Sessions Judge has placed reliance on the testimony of Ramswaroop. We also do not find any infirmity in his statement and therefore, we cannot take a different view of this statement. If we examine the testimony of Ramswaroop in the light of the injuries by the deceased then no doubt is left in our mind that more than one person must have inflicted lathi blows on the person of Gulab. 13. We now take up the arguments advanced by Mr. Goel. The first argument of Mr. Goel is that Jugla had sustained injuries at the hands of Gulab and, therefore, it was in the right of his private defence that force was used by him against Gulab. The right of private defence, according to him, could be exercised by Jugla when he himself had sustained injuries at the hands of the deceased. Goel is that Jugla had sustained injuries at the hands of Gulab and, therefore, it was in the right of his private defence that force was used by him against Gulab. The right of private defence, according to him, could be exercised by Jugla when he himself had sustained injuries at the hands of the deceased. This plea, in our opinion, is not available to the defence because there is no evidence on the record to show that Jugla had sustained injuries on his person in the course of the same transaction. It is true that at the time of his arrest on the next day the Station House Officer had detected two injuries on his person but in the absence of any particulars about those injuries and any proof that the injuries were sustained by him during the course of this incident, we cannot accept the plea of right of private defence advanced on behalf of accused Jugla. Dr. Mohan Singh (PW 1) who is said to have examined Jugla on the 30th of September, 1966, was not put a single question by the defence when he entered in the witness box, nor did the defence take care to produce the injury report of Jugla which might have been prepared by Dr. Mohan Singh. The plea taken by Jugla that he alone was there at the field of Nopa when the incident had taken place and that he used force against Gulab in the exercise of his right of self-defence, stands contradicted from the number of the injuries which were inflicted on Gulab. According to the statement of Dr. Mohan Singh (PW 1), Gulab had sustained as many as 15 injuries and the injuries were found on the entire body of the deceased. The plea of Jugla that he was beaten by Gulab and as a result of that beating he fell down in an unconscious state cannot be accepted in the light of the injuries sustained by Gulab. We, therefore, reject this argument of inflicting injuries on Gulab in the exercise of right of self defence by Jugla. 14. Learned counsel for the appellants urged that the story about chasing Gulab and Ramswaroop does not find any mention in the first information report (Ex P.8) and, therefore, it should be taken as an improvement in order to justify the presence of Gulab in the field of Nopa. 14. Learned counsel for the appellants urged that the story about chasing Gulab and Ramswaroop does not find any mention in the first information report (Ex P.8) and, therefore, it should be taken as an improvement in order to justify the presence of Gulab in the field of Nopa. Ramswaroop (PW 13) who was going in the company of his father is the only witness for this part of the story of chasing by assailants. It is true that Ramswaroop was present at the Police Out-Post when Ex. P.8 was taken down by the Head Constable but from the tenor of the evidence of Kastoora (PW 9) and the Head Constable Jagdish Narain (PW 14), the real author of Ex. P. 8 was Kastoora and not Ramswaroop (PW 13) whose signatures were obtained as a precautionary measure by the Head Constable on that document. Ramswaroop was hardly a boy of 14 when his father was murdered by the assailants and, therefore, the statement of Kastoora that he was all through weeping when he went to the Police Out Post and that he was not mentally in a fit state and therefore he did not make any enquiries form Ramswaroop about the details of the incident, appears to be quite natural. In this state of things, if the story of chase was not disclosed by Ramswaroop at the time when Ex. P.8 was taken down, it cannot be said that this story has been cooked up by Ramswaroop at a later stage to justify the presence of Gulab in the field of Nopa. As is clear from the statement of Ramswaroop (PW 13) that when the assailant party started chasing them, they ran away towards the field of Nopa to find a shelter. We do not find any infirmity in this statement of Ramswaroop and, therefore, this argument advanced by Mr. Goel does not cut much ice. 15. Learned counsel for the appellants has vehemently urged before us that since the injuries of Jugla have not been explained by the prosecution witnesses, no reliance should be placed on them. We have already discussed the circumstances regarding the injuries of Jugla. Goel does not cut much ice. 15. Learned counsel for the appellants has vehemently urged before us that since the injuries of Jugla have not been explained by the prosecution witnesses, no reliance should be placed on them. We have already discussed the circumstances regarding the injuries of Jugla. Kastoora (PW 9) Mahadeva (PW 8) and Chhaju (PW 15) who reached the spot saw the accused person running away from there and, therefore, they were not in a position to see the injury, if any, caused to Jugla on his body. Statement of Ramswaroop (PW 13), however, also does not speak of any injury on the person of Jugla, and in the absence of any proof that the injuries which were detected by the doctor on 30th September, 1966 on the body of Jugla were caused during this incident, we cannot accept any explanation of such injuries from the prosecution witnesses. We, therefore, see no force in the argument of Mr.Goel about the absence of an explanation of the injuries on the body of Jugla. In this connection, reliance has been placed by Mr. Goel on a Supreme Court Authority in Mohar Rai v. The State of Bihar, AIR 1968 SC 1281 . Dr. Tewari, on the other hand, placed reliance on Bankey Lal and others v. The State of U.P., AIR 1971 SC 2233 and submitted that the absence of any explanation about the injuries alleged to have been sustained by Jugla in the circumstances of this case does not in any manner affect the creditability of the witnesses. In this latter authority of the Supreme Court, Mohar Rai v. The State of Bihar, AIR 1968 SC 1281 has been explained. We may state that the observations of their Lordships of the Supreme Court in Mohar Rai v. The State of Bihar, AIR 1968 SC 1281 can not in any manner be attracted to the circumstances of this case where the defence has miserably failed to establish that there were any injuries on the body of Jugla and that they were sustained by him during the course of this incident. 16. The enmity between Jugla and the deceased on the question of the 'med' (boundary) of the field has been established by the prosecution witnesses. No cross-examination is directed on this aspect of the prosecution story by the defence. 16. The enmity between Jugla and the deceased on the question of the 'med' (boundary) of the field has been established by the prosecution witnesses. No cross-examination is directed on this aspect of the prosecution story by the defence. Bhonrilal (PW 4) no doubt states in his cross-examination that he had heard a cry about the thief giving beating but his statement in our opinion, cannot be believed as the story given by the defence that a theft was committed in the field of Nopa does not find any corroboration from any of the circumstances, brought on the record. We are, therefore, not prepared to give any credence to the testimony of Bhonrilal (PW 4). 17. In view of the above discussion, we see no life in this appeal and it is, therefore, dismissed. 18. Learned counsel for the appellants prays for leave to appeal to the Supreme Court. As the case has been mainly decided on the appreciation of evidence, we do not find it to be a fit case under Article 134 (i) (1) of the Constitution for appeal to the Supreme Court. The prayer is, therefore, rejected. *******