JUDGMENT 1. - This jail appeal is directed against the judgment dated 31. 10.1975 of the learned Addl. Sessions Judge, Dholpur whereby he convicted the accused-appellant Chama under Section 307 I.P.C. for attempting to commit murder of the police raiding party and sentenced him to rigorous imprisonment for five years and a fine of Rs. 250/- and in default of payment of fine to further suffer rigorous imprisonment for one month. 2. The prosecution story as disclosed at the trial is that in the intervening night of 16th/17th May, 1974 a 'Notanki' was being played in village Tanda. The appellant Charna in the company of other persons was witnessing that`Notanki'. The police came to knew about the presence of the accused persons on the relevant day in village Tanda and as such the police party surrounded the area to apprehend the accused. Finding themselves in a difficult position, the accused persons fired shots at the police party taking aim at them and could make good their escape. A written report of this occurrence was lodged at the police station Maniya on 17-5-1974 in which the name of the appellant along with the other co-accused was mentioned and the names of the witnesses were also mentioned therein. The police after registering the case against the accused person under Section 307 I.P.C, visited the spot and prepared the site plan Ex. P/2. The empties were recovered from the scene of occurrence and the seizure memo is Ex. P/l, During the course of investigation accused Mora was shot dead in some other encounter on 5.9.1974. The police after usual investigation submitted a challan against the accused-appellant in the Court of Munsif and Judicial Magistrate, Dholpur. The learned Magistrate committed the accused to stand his trial under Section 307 I.P.C. in the court of Addl. Sessions Judge, Dholpur. 3. The accused pleaded not guilty to the charge. The prosecution examined 5 witnesses in support of their case. Out of those PW.l Ishwar Singh, PW.3 Mohan Singh and PW.5 Sowaran Singh have been examined as eye-witnesses of the occurrence. The accused-appellant denied his complicity in the crime. He did not examine any witness in defence. The learned Addl. Sessions Judge placing reliance on the statements of three eye-witnesses convicted and sentenced the accused-appellant as mentioned above. 4. Learned counsel for the appellant has taken through the statements of the eyewitnesses. The accused-appellant denied his complicity in the crime. He did not examine any witness in defence. The learned Addl. Sessions Judge placing reliance on the statements of three eye-witnesses convicted and sentenced the accused-appellant as mentioned above. 4. Learned counsel for the appellant has taken through the statements of the eyewitnesses. He is correct in stating that the statement of PW. 1 Ishwar Singh cannot be used for convicting the accused under Section 307 I.P.C. because he in his statement before the court has stated that he could not identify the accused. I have gone through the statements of PW. 3 Mohan Singh and PW. 5 Sowaran Singh. Inspitc of critical cross-examination these two witnesses have very well stood the test of cross-examination. Nothing has appeared in their statements on the basis of which the veracity of these witnesses can be doubted. No doubt there are some minor contradictions in their statements but they are not sufficient to hold that the witnesses have not seen the incident. PW. 3 Mohan Singh has stated that the accused-appellant Charna was having a torch in his hand and he dashed the torch light towards the police party and thereafter taking aim at them he fired shots towards the direction where the police party was standing. More or less the same are the statements of Mohan Singh and Sowaran Singh. They have been corroborated by the First Information Report Ex. P/4. People were enjoying the `Notanki' play being staged and naturally there must be sufficient light to observe each other. The witnesses have stated that after taking aim at the police party shots were fired. It is not a case in which it can be said that the Mohan Singh, while Buwa Singh dealt a blow on the head of Harbans Singh with the "dantar". Soon after Buwa Sinah dealt another blow with "dantar" on the head of Harbans Singh. Harbans Singh fell down. Thereafter Mahendra Singh left Mohan Singh and took the "dantar" from Buwa Singh. Mahendra Singh then gave a number of strokes by the "dantar" on the back of Harbans Singh. Dilip Singh and Kashmira Singh wanted to intervene, but Mahendra Singh son of Sohah Singh fired four rounds from his revolver as a result of which Mohan Singh, Dilip Singh and Kashmira Singh went away from there for safety. Mahendra Singh then gave a number of strokes by the "dantar" on the back of Harbans Singh. Dilip Singh and Kashmira Singh wanted to intervene, but Mahendra Singh son of Sohah Singh fired four rounds from his revolver as a result of which Mohan Singh, Dilip Singh and Kashmira Singh went away from there for safety. Then at about 11.00 p.m., they saw Buwa-Singh, Mahendra Singh son of Sohan Singh, Mahendra Singh son of Mangal Singh and Milkha Singh carrying the dead body of Hafbans Singh on a cot. All the four accused persons were armed with swords. Mahendra Singh was putting on a "tehmat", which was stained with blood. Mohan Singh gave information to the police on the basis of which the dead body of Harbans Singh was found out. The head was completely chopped of from the dead body. The head of Harbans Singh was also recovered near the Nainwa Road. The dead body of Harbans Singh was recovered from the field of Mahindra Singh Jat. At the time of incident Dilip Singh and Kashmira Singh were standing at a distance of 30-40 paces. 5. PW/2 Dayal Singh stated that Makhan Singh was murdered about three years ago. Harbans Singh and Gajjan Singh were arrested in that murder case, but Harbans Singh and Gajjan Singh were later on acquitted. On that night Mohan Singh came to Dayal Singh at about 10 p.m. and narrated him the story. Mohan Singh had apprehended that the dead body of Harbans Singh would be disposed of and so he accompanied Mohan Singh along with Birsa Singh and went towards that side. They saw Buwa Singh, Mahendra Singh son of Sohan Singh, Mahendra Singh son of Mangal Singh and Milkha Singh carrying the dead body of Harbans Singh on a cot. Seeing this, he went to the police station along with Mohan Singh and got a report lodged by Mohan Singh. The SHO recovered the Tehmat of Mahendra Singh as it was stained with blood. 6. PW/3 Birsa Singh is the person who accompanied Mohan Singh and Dilip Singh and saw that the four accused persons were carrying the dead body of Harbans Singh on a cot. 7. The SHO recovered the Tehmat of Mahendra Singh as it was stained with blood. 6. PW/3 Birsa Singh is the person who accompanied Mohan Singh and Dilip Singh and saw that the four accused persons were carrying the dead body of Harbans Singh on a cot. 7. PW/4 Kashmira Singh stated that Dayal Singh came at about mid-night and awakened him and his brother Dilip Singh, and Dayal Singh took out the tractor as they had to lodge a report with the Police Station, Talera. This witness was declared hostile at the request of the prosecution. 8. PW/5 Ajit Singh is the witness regarding the recovery of the dead body, 9. PW/6 is Dr. Sushil Kumar Gautam. He had performed the post-mortem on the dead body of Harbans Singh. He found the following injuries on his person:- 1. Head and neck completely chopped off at survical No. 1 probably with sharp weapon. 2. Incised wound two size 3"x l"x 1" obliquely placed at lower one third of left leg cutting shaft of tibia. Grievous by sharp object. 3. Incised wound 1/2" x 1/2 "X 1/2" on right thoracic region back. 4. Incised wound 3"x 1/2" X 1/2" horizontally placed on left scapular region back. Simpie sharp. Bones & Joints:- 1. No. 1 is cutting through survicle No. 1 2. Left tibia fractured by 1 to 2. Head & Neck not brought with body. 10. Presence of post-mortem attaining on back and other regions of decomposition it is detected that person has died within 24 hours of post mortem. 11. No. 1 mentioned in Col. No. 5 is sufficient in ordinary course of nature to cause death. 12. Skull of human being was brought to 24-6-73 only skull and the vertebrae brought. Probable age 55 years. Time since death about five days. It was without mandible. No soft tissues and stains present. It bears the following injuries:- 1. Cut fracture 4" x 1/4''horizontally placed with suture line left half of occipital region. 13. Brain was in liquified mass in membranes. Base of skull - Linear fracture of orbital plate of right frontal bond and crack fracture of petrom part of right temporal bone. 14. Vertebrae upto servicle No. 2 present with skull. 15. In the opinion of the Doctor all the injuries on the dead body of Harbans Singh were ante-mortem. 13. Brain was in liquified mass in membranes. Base of skull - Linear fracture of orbital plate of right frontal bond and crack fracture of petrom part of right temporal bone. 14. Vertebrae upto servicle No. 2 present with skull. 15. In the opinion of the Doctor all the injuries on the dead body of Harbans Singh were ante-mortem. He further stated that the injuries No. 2 and 3 on the skull, are crack fractures and could not be caused by a sharp weapon. 16. PW/7 Nafaj Babu is the police constable, who had taken the articles for analysis. 17. PW/8 Dilip Singh stated that on the day when Harbans Singh was murdered the betrothal ceremonies took place. At about mid-night Dayal Singh informed him that Harbans Singh has been murdered. He accompanied Dayal Singh to the Police Station. This witness was declared hostile at the request of the prosecution. 18. PW/9 Mahendra Singh son of Tara Singh stated that he knew the deceased, Harbans Singh. The S. H. O. had came to his village and had called him. The dead body of Harbans Singh was recovered from the field. The head was completely chopped off from the dead body. The recovery memos were prepared in his presence, and he had signed them. 19. PW/10 Dhanna Singh stated that he had gone to catch a bus on the bank of Mangali river. There the SHO met him. The SHO asked him to accompany him. The SHO recovered a cot at the instance of the accused. This witness was also declared hostile at the request of the prosecution. 20. PW/11 Chandra Singh was the SHO at the Police Station Hindoli on 25-9-1970. He had registered the case regarding the murder of Makhan Singh against Harbans Singh and Gajjan Singh. 21. PW/12 Sobhag Singh has stated that Buwa Singh had taken out a cot from near a `babul'. One "Upla" of the cot was missing. 22. PW/13 Ram Chandra son of Bhuraji is also a re-covey witness regarding the dead body of Harbans Singh. 23. PW/14 Ram Chandra son of Banshi Das stated that the re-coverry of the "upla" was made in his presence. 24. PW/15 Roop Kishore was the Deputy Superintendent of Potice at the time when the murder of Harbans Singh took place. Buwa Singh had given information to him regarding the recovery of "upla" vide Ex, P/22. 23. PW/14 Ram Chandra son of Banshi Das stated that the re-coverry of the "upla" was made in his presence. 24. PW/15 Roop Kishore was the Deputy Superintendent of Potice at the time when the murder of Harbans Singh took place. Buwa Singh had given information to him regarding the recovery of "upla" vide Ex, P/22. Mahendra Singh had given information regarding the "pagari" and hair of the deceased vide Ex. P/23. The information which was given by Buwa Singh was correct, but the information given Mahendra by Singh was not correct. 25. PW/16 Ram Kishore Mehrish is the SHO who conducted the enquiry. He found blood-stained earth at the house of Mahendra Singh. The blood stained earth was recovered by Ex. P/9. Vide Ex. P/4 the blood-stained `tahmat' of Mahendra Singh was also recovered. Mahendra Singh son of Mangal Singh gave him information leading to the recovery of the dead body of Harbans Singe vide Ex. P/5. The dead body of Harbans Singh was found in the fields of Mahendra Singh Jat. On a search having been made the head of the deceased, Harbans Singh, was found on 25th June, 1973 near the Mangali river. The head was taken in to possession vide Ex. P/12. 26. The statements of Mahendra Singh and Buwa Singh were recorded under Section 313, Cr. P. C., 1973 by the learned Additional Sessions Judge on 24-3-1974. 27. DW/1 Krishna Behari is the Headmaster, Middle School, Namana, and has only stated regarding the date of birth of Milkha Singh. 28. DW/2 Deo Chand was posted as Additional Munsif-Magistrate No. 2, Bundi on 19-8-1973. He had recorded the statement of Mohan Singh son of Kaka Singh under Section 164, Cr. P. C. 29. DW/2 Man Singh has stated that he had gone to attend the betrothal ceremony at the house of Mohan Singh. He did not see Buwa Singh and Mahendra Singh son of Sohan Singh, Harbans Singh and Mohan Singh in the betrothal ceremony. 30. DW/4 Dr. S. C, Sharma had examined Milkha Singh with respect to his age. In the opinion of the witness the age of Milkha Singh was about 17 years. 31. DW/5 Gajjan Singh stated that at the betrothal ceremony he acted as the Pandit (Granthi). He did not see Mohan Singh in the betrothal caremony. Accused Buwa Singh is not known to him. 32. In the opinion of the witness the age of Milkha Singh was about 17 years. 31. DW/5 Gajjan Singh stated that at the betrothal ceremony he acted as the Pandit (Granthi). He did not see Mohan Singh in the betrothal caremony. Accused Buwa Singh is not known to him. 32. On behalf of the accused-appellants, it was. contended that Mohan Singh is the only eye-witness in the case, and his statement has been found to be unreliable. Reliance was placed on Karunakaran v. State of Tamil Nadu, 1976 Cr.L.R. (SC) 14 wherein it was held that where an accused is going to lose his life in a serious charge of murder, it is only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the eye witness on whose testimony the conviction is based is absolutely reliable. Where the sole witness on whose testimony the conviction was based had himself given the FIR and there were serious departures on his evidence from the version given in FIR and the evidence was contradicted by the medical evidence. It was held that the evidence of the medical witnesses has not been considered. Reliance was placed on Badri v. State of Rajasthan, 1975 Cr. L. R. 678 , wherein it was held that only eye witness modulating his evidence to suit the prosecution story, the accused deserved to be acquitted. 33. From the evidence on record, the prosecution has succeeded in establishing that Buwa Singh and Mahendra Singh son of Sohan Singh committed the murder of Harbans Singh. The statement of Mohan Singh is dependable, and the other circumstantial evidence has corroborated his version. It is clearly established that Buwa Singh dealt "dantar" blows on the head of Harbans Singh as a result of which he sustained serious injuries. Mahendra Singh 'initially caught hold of Mohan Singh so that Mohan Singh could not get Harbans Singh rescued from the murderous assault of Buwa Singh. Later on, Mahendra Singh also dealt `dantar" blows on Harbans Singh. 34. Having minutely examined the prosecution evidence we have no hesitation in holding that the prosecution has succeeded in bringing the guilt home to the accused Buwa Singh under Section 302/34, IPC. In the post-mortem report Ex.P/15 Dr. Later on, Mahendra Singh also dealt `dantar" blows on Harbans Singh. 34. Having minutely examined the prosecution evidence we have no hesitation in holding that the prosecution has succeeded in bringing the guilt home to the accused Buwa Singh under Section 302/34, IPC. In the post-mortem report Ex.P/15 Dr. S. K. Gautam PW/6 has clearly stated that injury No. 1 was sufficient in the ordinary course of nature to cause death. The testimony of witnesses Mohan Singh PW/1, Kashmira Singh PW/2 and Dilip Singh PW/8 clearly establishes the guilt of the accused-appellants. The learned counsel for the accused-appellants has not succeeded in making out a case whereby it can be said that the statements of Mohan Singh, Kashmira Singh and Dilip Singh should not be believed. In our considered opinion, Mohan Singh is a dependable eye-witness and the conviction of the accused-appellants could be sustained even on his sole testimony though the statements of Kashmira Singh and Dilip Singh are there to corroborate his statement. 35. For the reasons stated above, there is no force in this appeal, which is hereby dismissed. *******