JUDGMENT 1. - Dansingh and 4 others have filed this appeal challenging their conviction under section 302, 325 and 147 Indian Penal Code and sentence to various terms of imprisonment awarded to each one of them by the learned Additional Sessions Judge, Sikar vide his judgement dated 31st January, 1975. 2. The facts giving rise to the incident to which this appeal relates are in a nut-shell as follows: It is alleged that Hardeva was harbouring some ill will against Nathu Jogi brother of deceased Sheonath Jogi on a question of having some illicit relationship with a lady known Mst. Chhoti of village Piprali. It is said that Mst. Chhoti was formerly having such relations with Hardeva but later on she developed her intimacy with Nathu Jogi. This naturally created the animosity between the two. 3. On April 11, 1974 accused Rameshwar, Dansingh, Jeewan and Laxman gave beating to Sheonath in the village and thereafter Sheonath was dragged by these accused appellant towards the bus stand of that village. Raghunath PW.10 had a shop a the bus stand. After having entrusted the shop of his nephew Mithu son of deceased Sheonath Singh he started for fetching milk from the village and on his way to the village he found that beating was being given by Rameshwar, Dansingh, Jeewan and Laxman to Sheonath. According to him Rameshwar gave a lathi blow on the left shoulder of Sheonath while Dansingh also gave lathi blow to Sheonath. Sheonath fell down and thereafter according to witness Raghunath PW.10, the other two accused persons, namely, Jeewan and Laxman beat him with lathies. Sheonath fell down but he was bodily lifted by Raghunath and Dansingh and turban was tied around his waist and he was brought to the motor stand of the village. At the motor stand Hardeva was standing with his tractor. he then exhorted that Jogis should be killed. Hardeva then pulled the moustache of Raghunath who was trying to swave his brother Sehonath. Rameshwar went to a nearby shop of a barber Gajanand and brought a pair of scissors and cut the moustaches to humiliate the witness. The scissors was then returned to Gajanand. It is at this stage of the incident that Mst. Kesar PW9 came to the shop of Raghunath and witnesses the occurrence. Rameshwar went to a nearby shop of a barber Gajanand and brought a pair of scissors and cut the moustaches to humiliate the witness. The scissors was then returned to Gajanand. It is at this stage of the incident that Mst. Kesar PW9 came to the shop of Raghunath and witnesses the occurrence. The story of the prosecution further reveals that Hardeva gave a kick on the stomach of Sheonath and the other accused persons further beat him with lathies while Sheonath was lying on the ground at the bus stand. After some time he succumbed to the injuries. Thereafter the dead body of Sheonath was placed on the tractor by Hardeva but later on they changed their mind and left the dead body at the motor stand and made good their escape from there. It is said that Mithu the son of Sheonath who was left behind to look after the shop at the bus stand had also witnesses this occurrence. 4. It is really regrettable that no independent person who had witnessed the scene took up courage to come in the witness box and, therefore, the entire prosecution case revolves round the testimony of the three eye-witnesses Raghunath, Mst. Kesar and Mithu, all members of one family. On registering the case the S.H.O. went to the scene of occurrence and conducted the investigation. Dr. B.P. jangid PW8 performed the post mortem examination on the dead body of Sheonath and found the following injuries on the dead body of the deceased:- 1. Abrasion 1" x 3/4" on the back of the neck in the middle. 2. Contusion 1" x 1/2" with an abrasion 1/2" x ⅛" on the nose in the middle. 3. Abrasion 6" x 1/2" on the medial side of left forearm lower part. 4. Abrasion 11/2" x 1/2" on the back of left forearm upper part. 5. Abrasion 3/4" x 1/2" on the back of left hand in the middle. 6. Contusion 21/2" x 21/2" on the lateral side of left side of chest lower part. 7. Lacerated wound 2" x 1/2" bone deep on the medial side of left leg lower ⅓rd. 8. Abrasion 1" x 3/4" on the lateral side of right buttock. 9. Three contusion 31/4" x 1" each, crossing one another on the lateral side of right thigh upper part. 10. 7. Lacerated wound 2" x 1/2" bone deep on the medial side of left leg lower ⅓rd. 8. Abrasion 1" x 3/4" on the lateral side of right buttock. 9. Three contusion 31/4" x 1" each, crossing one another on the lateral side of right thigh upper part. 10. Contusion 3" x 1" on the lateral side of right thigh above the knee joint. 11. Contusion 21/2" x 1" one inch above injury No. 10. 12. Contusion 21/2" x 1" on the lateral side of right side of chest lower part. 13.Contusion 31/2" x 1" one and half inch above injury No. 11. 14. Abrasion 21/2" x 1" on the back of right leg lower part. 15. Contusion 31/2" x 1" on the outer medial side of left thigh in the middle. 16. Three contusion 5" x 1", 21/2" x 1" and 21/2" x 1" on the postero lateral side of left side of chest below the scapula. 17. Contusion 6" x 1" below the right scapula. 18. Contusion 2" x 1" on the left shoulder. 19. Contusion 8" x 1" on the back of abdomen in the middle. 20. Contusion 31/2" x 1" on the back of left leg upper ⅓rd. 5. On opening the body the doctor found the brain with its membrances congested. There was fracture of the left sixth, seventh, tenth and eleventh ribs and right tenth and eleventh ribs. The pleurae were found congested. The left pleurae was ruptured against the fractured sides of sixth and seventh ribs. The left lung was also collapsed. In his opinion the death of Sheonath had taken place due to shock and intra abdominal and intra pleural hemorrhage which was the result of external injuries Nos. 6, 16 and 19. The doctor also expressed opinion that these injuries with their internal effects were sufficient in the ordinary course of nature to cause death. 6. Raghunath was also examined by the same doctor and he found the following 5 injuries on his person:- 1. Contusion 31/2" x 1" below the right scapula. 2. Contusion 8" x 1" in the middle of the back of chest placed obliquely. 3. Contusion (irregular) 6" x 4" on the left scapular region. 4. Contusion 11/2" x 1" on the back of the abdomen lower part in its middle. 5. Contusion 1/2" x 1/2" on the back of the inter phalangeal joint of right thumb. 2. Contusion 8" x 1" in the middle of the back of chest placed obliquely. 3. Contusion (irregular) 6" x 4" on the left scapular region. 4. Contusion 11/2" x 1" on the back of the abdomen lower part in its middle. 5. Contusion 1/2" x 1/2" on the back of the inter phalangeal joint of right thumb. 7. After investigation the police, challaned all the 5 accused persons and they were tried by the learned Additional Sessions Judge for the offences referred to above. The prosecution examined as many as 17 witnesses. The accused denied the charges and pleaded alibi. 7 witnesses were however examined to prove the alibi but while arguing the case the learned counsel for the appellants did not place reliance on the plea of alibi and did not refer in support of his case any of the statements of the defence witnesses. We, therefore, need not discuss the defence evidence in this judgement. The learned Judge found all the 5 accused persons guilty of offences under section 302 simpliciter, 325 and 147 Indian Penal Code and sentenced each one of them to various terms of imprisonment as mentioned in the judgement. 8. Mr. Chatterji appearing on behalf of the appellants argued that the entire prosecution story rests on the ocular evidence of the 3 alleged eye witnesses, namely, PW9 Mst. Kesar, PW10- Raghunath and PW11 Mithu but they being interested witnesses their testimony cannot be accepted on their face value unless they find corroboration from independent source. He also urged that the medical evidence does not support the oral testimony of Raghunath and, therefore, Raghunath should not have been believed for fastening the guilt on the accused persons. As regards Mst. Kesar PW9 and Mithu PW11 it was vehemently urged by Mr. Chatterji that these two witnesses reached the place of occurrence after the incident was over and, therefore, they are resorting to lies to rope in the accused persons against whom they also harbour ill will because of the enmity between the Jogis and the family of Hardeva. The learned Government Advocate on the other hand supported the judgement and argued that the testimony of these 3 eye witnesses is worthy of reliance and the trial Judge had not committed any error in basing the conviction of the accused-appellants on the strength of these witnesses. The learned Government Advocate on the other hand supported the judgement and argued that the testimony of these 3 eye witnesses is worthy of reliance and the trial Judge had not committed any error in basing the conviction of the accused-appellants on the strength of these witnesses. However, he expressed his regret that due to fear the other independent persons who had seen the occurrence did not come forward to oblige the prosecution and, therefore, they could not be examined. 9. According to the statement of Raghunath PW10 it is clear that when he tried to intervene and save his brother Sheonath he was given beating by the accused persons. This fact finds corroboration from the injuries that he had sustained during the incident. The presence of the injuries on the person of Raghunath amply testifies his presence at the place of occurrence and proves that he was the victim of the incident. It cannot therefore be ruled out that he had not seen the incident with his own eyes. 10. Rathunath has deposed that Mst. Kesar reached the place of occurrence afterwards. On reading the statement of Mst. Mesar PW9 along with the testimony of Raghunath PW10 no doubt is left in our mind that Mst. Kesar had not actually witnesses the occurrence. Her attempt to support testimony of Raghunath and Mithu with regard to the manner in which the incident had actually taken place in an exercise in futility. We find it difficult to place reliance on the statement of Mst. Kesar with regard to the actual beating given to Sheonath. But soon after when Sheonath was lying dead at the bus stand Mst. Kesar came and she was informed by Raghunath the manner in which the death of Sheonath had taken place and the names of the accused persons were mentioned to her. The first information report was lodged without any loss of time at the police station Raghunathgarh in which the names of the accused person find place. The time lag between the incident and the lodging of the report is very short and therefore it cannot be conceived that the relations of the deceased cooked up an entirely false story to involve totally innocent persons. The time lag between the incident and the lodging of the report is very short and therefore it cannot be conceived that the relations of the deceased cooked up an entirely false story to involve totally innocent persons. Still we shall have to be cautions to scrutinise the testimony of the eye witnesses as they being close relations of the deceased are naturally enthusiastic to see the culprits punished. In this background we shall have to find out as to what is the contribution of each of the accused persons in the incident. We have already held that Mst. Kesar PW9 had reached the place of occurrence after the incident was over. Therefore, her statement hardly helps the prosecution to find out the manner in which the actual occurrence had taken place. 11. Raghunath PW10 is a witness who had seen the incident at both the places. He has stated that at about 3, 3/4 p.m. he saw near the house of Balya Balai Sang Shri Rameshwar. Dann, Jeevan and Laxman giving beating to Sheonath. All the assailants were armed with lathis. When he asked the assailants why they were beating his brother Sheonath, then according to him, Rameshwar gave a lathi blow on his shoulder and Dana gave a blow of his lathi on his back. The witness fell down and he says that thereafter he was given lathi blows by Jeevan and Laxman. then Jeevan and Laxman caught hold of Sheonath by his hand and led him with turban and brought him dragging towards the motor stand. On reaching motor stand they threw Sheonath on the ground. At the motor stand Hardeva was standing with his tractor. he exhorted his brother Rameshwar and Laxman to kill the Jogis and it is at this exhortation that Rameshwar, Jeevan and Dana and Laxman again started beating Sheonath with their lathis. Hardeva also gave a kick in the stomach of Sheonath while he was lying. When the witness was confronted with his police statement Ex. D.4 that he had named only Dana and Rameshwar who gave lathi blows to Sheonath and did not name the other two accused persons he could not give any specific answer and simply stated that his statement recorded in the trial court was correct wherein he had stated that all the 4 persons gave beating to Sheonath. 12. D.4 that he had named only Dana and Rameshwar who gave lathi blows to Sheonath and did not name the other two accused persons he could not give any specific answer and simply stated that his statement recorded in the trial court was correct wherein he had stated that all the 4 persons gave beating to Sheonath. 12. Mithu PW11 who happens to be the son of deceased Sheonath had witnessed the incident at the bus stand and he stated that his father Sheonath was brought to the bus stand by Laxamn and Jeevan who were catching hold of Sheonath by his hands. At that time all the accused persons were giving beating with their lathis. He also stated that Raghunath was brought by Dana who was holding him by his hand. Sheonath was dragged by the side of the shop of Gajia Nai and at that time he says that Rameshwar, Dana and Laxman had lathis in their hands. His father was not in a condition to speak nor could be walk. Hardeva was standing at the bus stand with his tractor and he exhorted his brother that Jogis must be done to death. Then Rameshwar, Dana, Laxman and Jeevan all the four accused persons gave lathi beating to Sheonath and it is at this stage that his aunt Mst. Kesar came to the bus stand. In the cross examination he made it clear that Mst. Kesar reached the bus stand after the moustaches of Sheonath were cut by the accused persons and the beating to Sheonath was over. In Ex.D5 which was the previous statement of Mithu by the police he named only Dana and Rameshwar who gave beating to deceased Sheonath in his presence. When this discrepancy was put to him in cross examination he could not give any explanation for the same. 13. The contention of Mr. Chatterji is that both these eye witnesses namely Raghunath and Mithu are the near relations of the deceased and, therefore their statements should be scrutinised with caution and should be believed only if they find corroboration from some independent source like the medical testimony. Regarding Hardeva the contention of Mr. 13. The contention of Mr. Chatterji is that both these eye witnesses namely Raghunath and Mithu are the near relations of the deceased and, therefore their statements should be scrutinised with caution and should be believed only if they find corroboration from some independent source like the medical testimony. Regarding Hardeva the contention of Mr. Chatterji is that the doctor does not corroborate the story of giving a kick to Sheonath in his stomach while he was lying on the ground as no trace of such a kick was detected by the doctor at the time of his post mortem examination. This story according to Mr. Chatterji that Hardeva gave a kick in the stomach of the deceased, cannot therefore believed. 14. We carefully perused the statements of the aforementioned two eye witnesses, namely, Raghunath and Mithu. Both Raghunath PW10 and Mithu PW11 when examined by the police under section 161 Criminal Procedure Code involved only two accused persons Dana and Rameshwar for the act of beating the deceased. To this extent both the eye witnesses are consistent even at the trial and state that Dana and Rameshwar gave beating to Sheonath at the bus stand with their lathis. The case against the other two accused persons, namely, Jeevan and Laxman that they also joined Dana and Rameshwar in giving lathi blows to Sheonath at the bus stand becomes very doubtful. In these circumstances it will not be safe to uphold the conviction of Hardeva, Laxman and Jeevan as the oral testimony of the eye witnesses Mithu and Raghunath hardly find any corroboration either from the doctor on from other circumstances. If, as the witnesses state, the kick was given in the stomach of Sheonath by Hardeva then there was no reason why it should not have left any mark on the stomach of the deceased. We are, in these circumstances, of the opinion that it will not be safe to uphold the convictions of Jeevan, Laxman and Hardeva under sections 320, 325 and 323 Indian Penal Code. 15. According to the prosecution story Hardeva was the real enemy of Raghunath as the rivalry was between Raghunath and Hardeva about the intimacy of Mst. Chhotu with these two persons. 15. According to the prosecution story Hardeva was the real enemy of Raghunath as the rivalry was between Raghunath and Hardeva about the intimacy of Mst. Chhotu with these two persons. If Hardeva were present at the bus stand then Raghunath would not have been spared by the part of the accused persons who were determined to settle their scores with their enemies. Eye witnesses do not state that Raghunath was in any manner handled by Hardeva. This circumstances make the presence of Hardeva doubtful at the scene of occurrence. However, the presence of the two persons, namely, Dana and Rameshar at the scene of occurrence cannot be ruled out as the beating by lathis is consistently assigned to these two persons. As regards the incident near the village we have no other evidence except that of Raghunath. Raghunath being a highly interested person, it will not be safe to trust him without independent corroboration that all the 4 accused persons were presence near the village where the first incident had taken place and gave beating to Sheonath. The case of Jeevan and Laxman therefore be comes doubtful because they were not named by Raghunath in his earlier statement under section 161 Criminal Procedure Code as assailants of Sheonath and therefore in this view of the matter we are left with no alternative but to acquit Hardeva, Laxman and Jeevan of the charge under section 147 Indian Penal Code. 16. In the end Mr. Chatterji argued that if Rameshwar and Dana are to be found guilty for giving lathi blows to deceased Sheonath then they cannot be convicted for an offence under section 302 Indian Penal Code. According to him at best the accused persons could be convicted either for offence under section 304 Part II or under section 325 Indian Penal Code. We regret we cannot accept this argument of Mr. Chatterji as we find that the opinion of the doctor is very clear that Sheonath died of the injuries sustained by him which were sufficient in the ordinary course of nature to cause his death. The presence of Dana and Rameshwar at the place where the first incident had taken place and also at the bus stand is established and, therefore, they cannot escape their liabilities for having caused the fatal injuries sustained by Sheonath at both the places. The presence of Dana and Rameshwar at the place where the first incident had taken place and also at the bus stand is established and, therefore, they cannot escape their liabilities for having caused the fatal injuries sustained by Sheonath at both the places. In these circumstances the conviction of Rameshwar and Dana under section 302 Indian Penal Code deserves to be sustained. Since the conviction of Rameshwar and Dana is upheld under section 302 Indian Penal Code we do not think it necessary to convict them for offence under sections 325 and 323 Indian Penal Code. 17. The result is that the appeal of Rameshwar and Dana is allowed to this extent that they are acquired of the charges under section 325, 323 and 147 Indian Penal Code and the sentence awarded to them for these offences are set aside. Their appeal so far it relates to their conviction under section 302 Indian Penal Code is dismissed. 18. Accused Hardeva, Laxman and Jeevan are acquitted of all the charges and the sentences awarded to them are set aside. they shall be released forthwith if not required in any other case.Appeal partly allowed. *******