JUDGMENT 1. The petitioners have filed this appeal against their conviction and sentences awarded to them by the learned Sessions Judge, Jhunjhunu, vide judgment dated 30-6-1980. The sentence awarded to each petitioner is as under : Name of accused Appellant, Conviction U/ss. Sentences 1. Shrichand U/S 148 IPC 2 Years' RI & Rs. 200/- fine, " 302 IPC Life imprisonment & Rs. 10,000/-fine or 5 Yrs. RI in default of payment of fine. " 323/149 “ 3 Month 'RI. 2. Ramdayal U/S 147 IPC 1 Yr. RI and Rs. 100/- fine or 1 month RI in default of payment of fine. U/S 302 IPC Life imprisonment and Rs. 10,000/- fine of 5 Yrs. RI in default of payment of fine. " 323 IPC 3 month RI and Rs. 500/- fine or 21/2 month's RI in default of payment of fine. 3. Khinwaratn " 147 IPC 1 Yr. RI and Rs. 100/- fine or i month's RI in default of payment of fine. " 302 IPC 3 months RI and Rs. 200/- fine or 2 Yrs. RI in default of payment of fine. " 323 IPC 3 months' RI and Rs. 500/-fine or 21/2 months' RI in default of payment of fine. 4. Sumer " 147 IPC 1 Yr. RI and Rs. 100/-fine or a a month's RI in default of payment of fine. " 302/149 " Life Imprisonment & Rs. 2000/-fine or 2 Yrs. RI in default of payment of fine. 3 months RI. " 323/149 “ 3 months R.I. 5. Sardarram U/S 147 IPC 1 Year RI & Rs. 100/- fine or 1 month RI in default of payment of fine. " 302/149 “ Life Imprisonment and Rs. 2000/- fine or 2 Years RI in default of payment of fine. " 323/149 “ 3 month's R.I. 6. Shishram " 147 IPC “ 1 Year RI and Rs. 100/- fine of 1 months RI in default of payment of fine. " 302/149 “ Life imprisonment and Rs. 2000/- fine or 2 years RI in default of payment of fine. " 323/149 “ 3 months R.I. 7. Moolchand U/S 147 IPC 1 Year RI and Rs. 100/- fine or 1 months RI in default of payment of fine. " 302/149 “ Life Imprisonment and Rs. 2000/- fine or 2 years RI and default or payment of fine. " 323/149 “ 3 month's RI. " 323/149 “ 3 months R.I. 7. Moolchand U/S 147 IPC 1 Year RI and Rs. 100/- fine or 1 months RI in default of payment of fine. " 302/149 “ Life Imprisonment and Rs. 2000/- fine or 2 years RI and default or payment of fine. " 323/149 “ 3 month's RI. All the senctences as directed by the Sessions Judge were to run concurrently. 2. The facts of the case as per prosecution story are that Ram Dhan S/o Motaram lodged a written report before the S.H.O Police Station Gudha Gordji on 28-8-79 at about 4 30 a.m. He has mentioned in the report that he was at his dhani situated in his field at about 7 p.m. on 27-8-79. At that time his mother Dbapli, his brothers Ram Karan and Shiv Karan and Nahar Singh and Omprakash S/o of Rim Kumar along with one Hiribux Jat resident of Brothers were also present in the dhani. His mother Dhapli after kneading the flour was about to prepare chapatis. It was mentioned in the report that suddenly from the side of Rameshwar's well the petitioners accused persons came together with Jellys, Lathis and Pharsis in their band and started beating Ram Kumar and Haribux. The complainant and other relatives started crying, on which Khyali Ram Swami came to the spot. It is alleged that Shri Chand petitioner was armed with Pharsi, by which he caused injuries to Haribux and Ram Kumar. Shish Ram accused was armed with Jelly and other accused were armed with lathies. All the accused persons jointly inflicted injuries to Ramkumar and Haribux. Both received grievous injuries, as a result of which they become unconscious. Thereafter, all the accused put rope round the necks of Ram Kumar and Haribux and killed them by strangulation. It is further alleged that when the manpeet was going on his mother Dhapli came in between to rescue Ram Kumar. The accused persons also inflicted injuries to her. Then all the accused persons lifted the dead-bodies of Ramkumar and Haribux and put them near the route to Ghanana Jodha. In the report it was also mentioned that the accused Khinwa Ram and Mool Chand also received injuries on legs and on head respectively on the stop. 3. On submission of this written report which is Ex. P. 25 the S.H.O. prepared the F.I.R. Ex. In the report it was also mentioned that the accused Khinwa Ram and Mool Chand also received injuries on legs and on head respectively on the stop. 3. On submission of this written report which is Ex. P. 25 the S.H.O. prepared the F.I.R. Ex. P. 26 and a case under Section 302/324/323/148/447 IPC was registered and started investigation of the case. 4. After registering the case the S.H.O. Munna Khan P.W. 11 recorded the statement of complainant Ram Dhan. He proceeded to the place of incident and recoded the statement of Dhapli and she was sent to Hospital, Jodha for her medical examination. He also sent Khinwa Ram and Moolchand accused persons to Hospital along with Dhapli for medical examination. The dead bodies of Ramkumar and Haribux were found lying in Ghanana Jodha. The Panchayatnama of Ram Kumar Ex. P. 1 and that of Haribux Ex. P. 2 were prepared by S.H.O. Then Shri Umesh Joshi, Dy. S.P. P.W. 10 also arrived at the spot at about 9 a.m. on 28-8-80 and he took investigation into his hand. Site plan Ex. P. 3 was prepared. From the spot he took into possession a peace of rope and bloodstained soil by Ex. P. 4, P. 5 and P. 7. The rope article 6 ways sealed at the spot. A pair of Chappal stated to be of deceased Haribux was taken into possession from the place vide memo Ex. P. 9. The Deputy Superintendent of Police also took into possession from the place of incident plain soil vide Ex. P. 6 and P. 8. The Dy S.P. also visited the side of Ghanana Jodha where the dead bodies were lying. By the side of deceased Ram Kumar's body, bloodstained soil and plain soil were taken into possession by the police vide P. 10 and P. 11. Similarly blood stained earth and plain earth was taken from the place where the body of Haribux was lying vide Ex.P. 12 and P. 13. The police also took into possession one bloodstained shirt and banyan from the body of deceased Ram Kumar vide Ex. P. 14. From the body of deceased Haribux one bloodstained banyan and one Dhoti was taken in police possession vide Ex. P. 15. 5. During the investigation the police arrested the accused petitioners. The accused Shri Chand gave information under Section 27 Evidence Act vide Ex. P. 14. From the body of deceased Haribux one bloodstained banyan and one Dhoti was taken in police possession vide Ex. P. 15. 5. During the investigation the police arrested the accused petitioners. The accused Shri Chand gave information under Section 27 Evidence Act vide Ex. P. 40 for the recovery of Pharsi. At the instance of this accused Shri Chand, the police in presence of witnesses recovered bloodstained Pharsi vide Ex. P. 20. Ram Dayal accused gave information for the recovery of a lathi and on his information requite at his instance a lathi was recovered by the Cohen Ex. P. 17. The accused Sumer gave information for the recovery of a lathi. At his instance the police recovered a lathi vide Ex. P. 18. The accused Sardarram gave information for the recovery of Lathi vide Ex. P. 45 and the police at his instance recovered the lathi vide Ex. P. 46. The accused Shish Ram gave information to the police vide Ex. P. 44 for the recovery of a Jelly and the police recovered at his instance a Jelly vide Ex. P. 43. The accused Ram Dayal gave information to the police under Section 27 Evidence Act for the recovery of the rope by which they strangulated Ram Kumar and Hari bux deceased vide Ex. P. 36 and on the basis of this information the police recovered at his instance the rope vide Ex. P. 16. Similarly the accused Mool Chand gave information to the police vide Ex. P. 39 for the recovery of the lathi and that lathi was recovered vide Ex. P. 19 at his instance. 6. The police took into their possession the dead-bodies from the spot and sent them for postmortem. Ex P. 29, is the postmortem report of deceased Ram Kumar and Ex. P. 30 is the postmortem report of deceased Haribux. Ex. P. 31 is the injury report of Mrs. Dhapli After investigation the police submitted the challan against the accused persons under Section 302/324/322/147/148/447 IPC. The learned Sessions Judge framed charges against the accused persons in of e light of the challan under those sections 7. The accused persons pleaded not guilty. The accused Khinwa Ram in his statement under Section 313 Cr. P. C. stated that his daughter Prabhati had gone to the field to bring grass and he was near his well. The learned Sessions Judge framed charges against the accused persons in of e light of the challan under those sections 7. The accused persons pleaded not guilty. The accused Khinwa Ram in his statement under Section 313 Cr. P. C. stated that his daughter Prabhati had gone to the field to bring grass and he was near his well. He sent Mool Chand to lift the grass-bundle but Mod Chand and his daughter Prabhati did not come back. He heard laud cries from the side of Jordha. On hearing the cries he went towards that side and he saw that Ram Kumar (deceased) had inflicted a lathi blow on Mool Chand's head and the daughter Prabhati was caught hold of by Haribux deceased and Ram Kumar was sitting near by with lathi in his hand. Haribux was committing "Khote Kam" (rape). Prabhati was crying. When Khinwa Ram asked, Haribux (deceased) desert from doing that act. Ram Kumar (deceased) inflicted lathi blows on his legs as a result of which his right foot was broken and he fell-down. Before he fell down he inflicted injuries by blows on the deceased and likewise the deceased also inflicted injuries on him. Thereafter, Rarn Dayal came to that place and he too sated quarrelling with the deceased Kam Kumar and Haribux. In the mean while Prabhati ran away and fell into the well Accused Mool Chand in his statement under Section 313 Cr. P. C. stated that his sister Prabhati had gone to the field to bring grass and when this accused went to lift the grass bundle he did not find Prabhati in the field. In searching for her, he went towards the Johra when he heard loud cried and he then saw that Haribux (deceased) was doing some ("Khota Kam") (rape) with Prabhati and Ram Kumar (deceased) who had lathi was sitting there. The accused Mool Chand then made a loud noise on which Ram Kumar assaulted a lathi blow on his head, as a result of which he fell down. Thereafter, it is not known what had happened to him. The accused Ram Dayal in his statement has stated that on the day of incident he was in his Dhani because the son of co-accused Shri Chand had died and thereafter he went to the Kothi. There he did not meet Khinwa Ram and Mool Chand and Prabhati. Thereafter, it is not known what had happened to him. The accused Ram Dayal in his statement has stated that on the day of incident he was in his Dhani because the son of co-accused Shri Chand had died and thereafter he went to the Kothi. There he did not meet Khinwa Ram and Mool Chand and Prabhati. He then heard loud cries from the side of Johra which were those of Prabhati. He proceeded towards that side and saw accused Mool Chand and Khinwa Ram lying on the ground. Both the legs of the Khinwa Ram were broken and Mool Chand's head had also been injured. On reaching accused Ram Dayal there, Ram Kumar (deceased) inflicted injuries on him on his right shoulder. Haribux had a kasia in his hand. The accused Ram Dayal snatched away that Kasia and assaulted both Ram Kumar and Haribux. Thereafter, he locked after Mool Chand and Khinwa Ram, both of them were sobbidg. Prabhati ran away from the spot and jumped into the well. 8. The accused Shrichand in his statement stated that his house is at a distance of 5 km from the place of incident. His son had died four days before the alleged incident. When he came to know about the incident he want to the Guda Police Station to lodge a report at 10 O'clock at night. What he came to place of incident alongwith S.H.O. one Hailal Sarpunch was also with him. His brother Ram Dayal, Khinwa Ram and Moolchand were in the Mataji's temple. Khinwa Ram's legs were broken and Mookband's bead had injuries. Ram Dayal also had injuries on him. All three (kam Dayal, Khinwa Ram, Moolchand) told the S.H O. that the girl (Prabhati) was in that well and they asked him to take her out. Thereafter, the S.H.O. taking along with him all the four persons (Shrichand, Ram Dayal), Khmwa Ram and Moolchand) started from the place of incident to the police station, Guda. Moolchand and Khinwa Ram were admitted to the Hospital at about 5 O'clock in the morning and Ram Dayal was kept in the lock-up then accused Shrichand was brought back to the place of incident at Ghannana Jodha. He to take out the girl from the well. Moolchand and Khinwa Ram were admitted to the Hospital at about 5 O'clock in the morning and Ram Dayal was kept in the lock-up then accused Shrichand was brought back to the place of incident at Ghannana Jodha. He to take out the girl from the well. The body of Prabhati was taken out from the well at 2 P.M. and was then given to him (Shrichand) for the purpose of cremation. After the cremation of the dead body of the girl, the police officials took him to the police station and put him in lock-up. Shrichand has also stated that a false case has been made out against him. 9. The accused Sumer in his statement under Section 313 Cr. P. C. has stated that he was not present at the time of incident and a false case was made out against him. The accused Shishram has stated that he was not present at the place of incident and has stated that on that day he had gone to Kaharwali to procure chara (grass) for the cattle where he fell ill and was admitted to Neemkathana Hospital. 10. The accused Sardar also denying his presence at the place of incident pleaded that he has been falsely implicated. 11. The prosecution has examined 11 witnesses to prove the charges against the accused persons. In this case, Khyali Ram P. W. 2, Dhapli P. W. 4, Ramdhan S/o Mota Ram P. W. 6 are eye witnesses and very material witnesses. Khayali Ram P.W, 3 is Swami by-caste. He is not of the caste of the complainant. He is not at all related to the complainant. Khyali Ram P.W. 2 in his statement be stated that one Sumer Jat came to him to enquire if Prabhati haid come. He told him that she had not come to him. At that time he heard a nose in the well near the temple. On hearing the noise be went towards the well along with Sumer. There he saw Ram Dayal and Khinwa Ram running from near the well towards the west. He asked the accused who were running, as to what the matter was, to which they replied it was nothing. He went to the well and peeped into it to see what the matter was but he could not fee anything except water was seen rumbling within the well. He asked the accused who were running, as to what the matter was, to which they replied it was nothing. He went to the well and peeped into it to see what the matter was but he could not fee anything except water was seen rumbling within the well. But after a short while, heard some noise from the western side. He went towards that side from where the noise was coming. He climbed a raised ground in the field of Ram Kumar and saw some people near the hut and he went to those persons in the Ram Kumar's field. There he saw Srichand, Ram Dayal, Sumer Shish Ram, Mulia, Sardara, Khinwa assaulting with weapons Ram Kumar and his son. Shrichand had a pharsi in his hand, Shish Ram had a Jelly and rest of the accused persons had lathies Ram Kumar had injuries on his face and all the accused were assaulting. Srichand accused bad assaulted Ram Kumar and his servant with Pharsi on his Jaws and the rest of the accused were beating them with lathies. Shish Ram was assaulting with Jelly. He tried to stop them from bating, on which they said that they would take his life also. Ram Kumar's mother, Dhapli tried to rescue and she put her-self on Ram Kumar. She was separated and removed by being beaten. When Dhapli was being beaten then Khinwa Ram got an injury on his Nali through Ram Dayal. All the accused persons tide a rope round the necks of Ram Dayal and his servant and after strangulating them killed them. After killing them, all the accused lifted them and put them in the Johra which is called Ghannana Johra. This witness was cross-examined by the accused persons at length. His statement has been discussed by the Sessions Judge in the Judgement. The Sessions Judge has believed the statement of this witness. We have also gone through the statement of this witness, we see no reasons to disagree with the learned Sessions Judge who had believed the statement of this witness. 12. His statement has been discussed by the Sessions Judge in the Judgement. The Sessions Judge has believed the statement of this witness. We have also gone through the statement of this witness, we see no reasons to disagree with the learned Sessions Judge who had believed the statement of this witness. 12. Learned counsel for the appellants during the argument has argued that this witness P.W. 2 is not at all a reliable witness It was argued that according to this witness, the fact is brought to light that Prabhati did not by herself jumped into the what but she was thrown into it by accused Ram Dayal and Khinwa Ram. It is pertinent to note that these accused persons were also challenged for the murder of Pabhati. They have been acquitted in that case. The defence theory in this case is that when Moolchand and Khinwa Ram saw the deceased Ram Kumar committing rape with Prabhti and when Moolchand and Khinwa Ram were given blows. Prabhati ran away from the spot and fell into the well. So according to that defence, Frabhati died on account`of drowning. But this is not the position and accused persons were challaned for murdering the girl, Prabhati. The Sessions Judge did not find the prosecution case established against the accused persons and hence acquitted them on 17-1-81). When the body of Prabhati was taken out from the well, her post-mortem was also conducted. The learned counsel for the appellant during the arguments agreed that he has no objection if this Court wants to see the post-mortem report of Prabhati. The judgment of the Sessions Judge acquitting that accused persons in the case of Prabhti was also submitted at the time of arguments.B We have perused the judgment. According to Dr. Prabhat Ranjan who had performed the post-mortem of the dead body of Mst. Prabhati, her death was dot I to asphyxia as a result of forcibly plunging of `choti' in her mouth and nose. All the time of Prabhati's medical examination it was found that tufts of her hair was found thrust in her nose and mouth so that at the time of pulling them out sufficient force had to be applied. It has also mentioned in the judgment that when the 1 dead body of Prabhati was taken out from the well, her hair were found thrust in I nose and mouth. It has also mentioned in the judgment that when the 1 dead body of Prabhati was taken out from the well, her hair were found thrust in I nose and mouth. So according to the Doctor's opinion Prabhati's death was not but to strangulation. In that case Khyali Ram Swami was also produced as prosecution witness (P. W. 5) but his testimony was not believed by the learned Sessions Judge. Khyali Ram Swami is the person who had seen the accused Ram Dayal and Khinwa Ram running near the well from where the dead body of Prabhati was taken out. He also said he heard some sound and also peeped into the well. It means that something was thrown into the well. As the learned Sessions Judge has not believed the statement of Khyali Ram in the murder case of Prabhati, no reliance should be placed on this witness in the present case. 13. We have considered this argument and we do not agree with the contention of the learned counsel for the appellants. Khinwa Ram might not have been believed in murder case of Mst. Prabhati. In the present case his statement is to be judged independently. He is an eye- witness and on healing noise of cries he came to like place of incident and saw that ali the accused persons were beating and inflicting blows to Ram Kumar and Haribux. He has given details, in his statement of the, act done by each accused person and the weapon which the accused at the time of inflicting injuries. A detail cross-examination was done to this witness and we are of the opinion that he had not been shattered in his cross-examination. The learned Sessions Judge has rightly believed the statement of this witness Khyali Ram P. W. 2. 14. The defence theory as has been said by the accused persons Khinwa Ram and Moolchand, is that the incident took place in Ghannana Jodha. Accordingto i to the accused person the deceased Ram Kumar was committing rape with Prabhati. Moolchand accused saw Ram Kumar committing this rape and Haribux was sitting with lathi. Moolchand accused when interrupted, he was givon lathi blow by Haribux on his head. Than accused Khinwaram also arrived there and saw Ram Kumar committing rape. He was also struck with lathi on his legs by Haribux. Moolchand accused saw Ram Kumar committing this rape and Haribux was sitting with lathi. Moolchand accused when interrupted, he was givon lathi blow by Haribux on his head. Than accused Khinwaram also arrived there and saw Ram Kumar committing rape. He was also struck with lathi on his legs by Haribux. Thereafter, Ram Dayal accused came at the spot and saw Khinwa Ram and Mool chand lying on the ground injured. He snatched away Kasia from the hand of Haribux and inflicted blows on Ram Kumar and Haribux . Prabhati then ran away from there and jumped into the well. There is no evidence to prove the defence version. It was argued that it is not for the accused to prove the defence theory but it is sufficient to show the probability of their defences. 15. We have considered this argument also. We find that the whole theory of the defence is not at all probable. It is unbelievable story that deceased Ram , Kumar after seeing accused Moolchand would continue committing rape. It is also unbelievable story that even after arrival of accused Khinwa Ram deceased Ram Kumar still continued the offence of rape. It is also unbelievable that while Haribux was sitting there deceased Ram Kumar will commit the offence of rape particularly on the main road. The place where the rape was alleged to have been committed is as open place which is on the main road. Hence, committing rape forcibly in such open place is hardly believable one. Then the medical examination of Prabhati also falsify this theory. The post-mortem report of Mst. Prabhati indicates that there were no sign of any injury on her body, breast, face and inner part of thigh and vagina. It is also in the post mortem report that there were no sign of pregnacy, hymen already ruptured. So according to the medical report there was no sign of committing rape on Mst. Prabhati. When the offence was being committed at that rough place as alleged by the accused persons, there is bound to be some injury externally on the body of Mst. Prabhati. As there was no sign of injury off thigh and Vagina, it indicates that the theory of rape is not correct one. As such merely putting a defence is not enough. There must be some a probability in the defence theory. Prabhati. As there was no sign of injury off thigh and Vagina, it indicates that the theory of rape is not correct one. As such merely putting a defence is not enough. There must be some a probability in the defence theory. In the present case there is no such probability and defence theory is completely false and concocted. This is the reason that the Doctor in Prabhati's case has opined that her death was due to asphyxia. He has not opined that the death was due to drowning. Hence, we do not agree with the defence theory and also hold that there is no probability in it. 16. The learned counsel for the petitioners has argued that the dead-bodies of Ram Kumar and Haribux were found in the Johra So the prosecution story about the incident in the field of Ram Kumar is incorrect. We have considered this argument also. Umesh Joshi P. W. 10 prepared the site plan Ex. P. 3 and from the place of incident i. e. from the field of Ram Kumar he took into possession a piece of rope used for strangulation by the accused persons and blood stained and plain earth. He also took into possession blood stained and plain earth from the place in Ghannana Johra where the dead bodies were lying. One chappal of deceased Haribux was taken in possession from the place of incident i. e. the field of Ram Kumar. thus it is proved from the evidence of the prosecution witnesses that the beating took place in the field of Ram Kumar after beating the accused persons strangulated Ram Kumar and Haribux and lifted their bodies and took them to the place known as Ghannana Johra. Thus from the evidence of the prosecution it has been established that the incident took-place in the field of Ram Kumar. In this way the defence story that Ram Kumar and Haribux were inflicted Kasia Blows at Ghannana Johra by accused Ram Dayal is also false story. 17. The other three prosecution witnesses are Dhapli P. W. 4, Ram Dhan complainant P. W. 5 and Shiv Karan P. W. 6. Dhapli P. W. 4 was also given blows and she received injuries. She has stated in her statement that all the accused persons came to their hut in the field and started assaulling Ram Kumar and Haribux. 17. The other three prosecution witnesses are Dhapli P. W. 4, Ram Dhan complainant P. W. 5 and Shiv Karan P. W. 6. Dhapli P. W. 4 was also given blows and she received injuries. She has stated in her statement that all the accused persons came to their hut in the field and started assaulling Ram Kumar and Haribux. The accused Shri Chand had pharsi and accused Shish Ram had Jelly and other accused had lathies in their hands. Shri Chand assaulted Ram Kumar and Haribux. Then all accused inflicted blows on them. She came there and put her self on Ram Kumar. She was pushed out from that position and she was also beaten. Then Shri Chand and Ram Dayal put knot round the neck of Ram Kumar and Haribux and then all the accused pulled together and strangulated them. After their death they put the bodies into Johra. She was also cross-examined at length by the counsel for the accused persons. The learned Sessions Judge has believed the statement of Dhapli P.W. 4. We have also perused her statement and we find no infirmity in her deposition. The Sessions Judge has rightly believed the statement of this witness. Similarly Ram Dhan P.W. 5 and Shivkaran P. W. 6 corroborated the statement of P.W. 4 Dhapli. Their statements also have been found reliable and trust-worthy by the Sessions Judge. We see no reason to disagree with him. Mst. Dhapli PW 4 mother of the deceased Ram Kumar and Ram Dhan PW 5 and Shivkaran PW 6 are the brothers of deceased Ram Kumar because the witnesses are mother and brothers of deceased Ram Kumar, the argument that they should not be believed cannot be accepted. They are very close relation, but on this ground their statement should be discarded, is not correct. All these witnesses have corroborated the witness Khyali Ram, PW 2. The statement of Khyali Ram PW 2 have been believed by the learned Sessions Judge. We have also perused his statements and we have discussed above in detail the statement of Khyali Ram and there is no reason to discard the disposition of the witness. Hence, the eye-witnesses have corroborated each other and the Sessions Judge has rightly believed their statements. 18. We have also perused his statements and we have discussed above in detail the statement of Khyali Ram and there is no reason to discard the disposition of the witness. Hence, the eye-witnesses have corroborated each other and the Sessions Judge has rightly believed their statements. 18. The learned counsel for the petitioners has argued that in this case, the report has been lodged at the police station on 28-8-79 at 4.30 a. m. when the incident took place on 27-8-/9 at 7.30 p. m. So there is delay in lodging the report at the police station. This delay creates suspicion. The delay of 9 hours has not been explained satisfactorily by the prosecution. In reply to this argument it was stated that the report was made by Ram Dhan who is the brother of deceased Ram Kumar. Ram Dhan sated in his statement that after the incident he first went to Mamaonki Dhani and narrated the incident to the people of that dhani. They advised him to lodge a report. He them reached at police station at 4.30 a. m. and submitted a written report Ex. P. 25. It was also argued that Mst. Dhapli mother of deceased Ram Kumar and complainant Ram Dhan was also injured by the accused persons. She was also attended by his son Ram Dhan. From the place of incident the police station is situated about three miles. As mother of Ram Dhan was also seriously injured and on account of murder of his son Ram Kumar, it was necessary for Ram Dhan to stay and provide medical aid to his mother. So in the circumstances, where the brother has been murdered, the mother has been injured seriously, the delay of few hours cannot be stand to be fatal. It was also argued that in the cross-examination of Ram Dhan it was not suggested that he had made the report after making deliberations with some body or this delay was utilised by him in inventing a false story against the accused. In Krishana Pillai Sree Kumar & Another v. State of Kerala 1981 Criminal Appeals Report P. 203 their Lordships of the Supreme Court has observed as under : "The criticism that the report was delayed by 12 hours does not detract . In Krishana Pillai Sree Kumar & Another v. State of Kerala 1981 Criminal Appeals Report P. 203 their Lordships of the Supreme Court has observed as under : "The criticism that the report was delayed by 12 hours does not detract . from the corroborated value of the first information report in the circumstances than prevailing, Vijayau (P. W. 2) and his friends must have been under shock for quite some time after the occurrence and then, as already stated, their chief concern must have been to save the life of the victim. It would not be surprising therefore, that none of them eared to go to the 1 police station and report the matter for legal action against the culprits." 19. So in the case referred above a delay of 12 hours was not found fatal. In the present case we have mentioned above that the mother of the complainant was also seriously injured, the police station is also at a distance of three miles and the incident took-place at 7.30 p.m. It is not surprising and unnatural that Ram Dhan first gave attention to his injured mother and as it was night time he immediately did not went to police station to lodge the report. So the argument of the learned counsel for the appellants regarding delay in lodging report at the police station has no force. 20. It was also argued on behalf of the appellants that the report was received by the magistrate on 30th August, 1979, i. e. after two days of the incident. In this j connection the statement of Munna Khan, S H O. was brought out to notice. Munna Khan in his cross-examination stated that a copy of the F.I.R was sent to the Magistrate on 28. 8 79. A man had taken it by hand for delivery. It was sent by Officials of the police station, but he does not remember the time when it was sent. It wise argued that this statement by Munna Khan is false one and the Sessions Judge has erred in observing "it is Dot for the prosecution side to prove why that reached court late". It was argued that the prosecution is to prove the cause of delay. Balaka Singh v. State of Punjab (2) was referred during the k arguments. It wise argued that this statement by Munna Khan is false one and the Sessions Judge has erred in observing "it is Dot for the prosecution side to prove why that reached court late". It was argued that the prosecution is to prove the cause of delay. Balaka Singh v. State of Punjab (2) was referred during the k arguments. In this the F.I.R. was sent to the Ilaqua Magistrate more than twelve I hours after the F. I.R was lodged at the police station. Whereas it should have j been delivered to the Magistrate during the night as incident took place at 2. p.m. or at least in the early morning. On this point while disposing the appeal the Hon'ble High Court of Punjab and Haryana observed the delay in sending the F. I. R. has not been properly explained by the prosecution. This has been accepted by the Supreme Court It was observed that it is, therefore, clear that the F. I. R. itself was a belated document and came into existence during the small hours in September, 2, 1976. The High Court also found that the best person to explain the delay in sending special report to the Ilaqua Magistrate was the police constable who had carried the F. I. R. to the Ilaqua Magistrate but the constable has not been examined by the prosecution and it was observed. "The delay with which the special report was made available to the Ilaqua Magistrate is indicative of the fact that the first information report did not come into existence probably till about sunrise by when the dead body already been dispatched for the purpose of post mortem examination to Patiala along with the inquest report, so that the Investigating Officer was no longer in a position to make alterations in the body of that report and all that he could do was to add latter on the names of the said four appellants to its heading." Their lordships of the Supreme Court has observed as under : "This finding of the High Court is based on cogent materials and convincing reasons, but unfortunately the High Court has not considered the effect of this finding on the truth of the prosecution case with regard to the participation of the appellants. In our opinion, in view of the finding given by the High Court it has been clearly established that the F. I. R. was lodged not at 10 P. M as alleged by the prosecution but some time in the early morning of September 2, 1966. If this was so, then the F. I. R. lost its authenticity." 21. In reply to this argument it was argued that the Supreme Court case is of no help to the accused persons. There the facts are different. Some of the accused persons have been acquitted while others were convicted. Apart from this, report lodged at the Police Station was also doubted. In the present case before us there is no doubt about the report Ex. P. 25. 22. It cannot be said that the incident referred to in the report Ex P. 25 is a concocted one. The accused Ram Dayal in his statement under Section 313 Cr. P. C. has admitted that he gave blows to deceased Ram Kumar and Haribux by Kasia. It is not disputed that both died on account of the injuries and blows. So the report submitted by Ram Dhan is not a false one. It was argued that even if it is presumed that the report was submitted to the Magistrate with delay but this delay is no ground to throw the prosecution case. 23. In Dal Chand v. The State of Rajasthan Cr. L.R. (Raj.) 1981 P. 509. it was observed : "In support of his contention that the delayed dispatch of the first information report to the concerned Magistrate is a serious infirmity in the prosecution case, learned Advocate has placed reliance on Balaka Singh and others v. The State of Punjab (A.I.R) 1975 S C. (1962) and Podha Narayana and others v. State of Andhra Pradesh, (A.I.R. 1975 S.C. 1252) . A Division Bench of this Court to which one of us (Justice M.B. Sharma) was a party had the occasion to deal with similar arguments and reverting to the aforesaid Balaka Singh's case (supra) and Podha Narayan's case and the other authorities, in Yogendra Singh and others v. State of Rajasthan (Cr. L.R. (Raj.) 1979 page 443 , it was observed that though under section 157 Cr. L.R. (Raj.) 1979 page 443 , it was observed that though under section 157 Cr. P.C. on receipt of a report of a cognizable offence the Incharge Police Station must "forthwith" send a report of the same to a Magistrate empowered to take cognisance of such offence upon a police report and if it is not done then it is serious infirmity in the prosecution case. But, if on the evidence on record, the court comes to the conclusion that the first information report was actually recorded without delay and the investigation started on its basis then, how so ever improper or objectionable the delayed receipt of the report by the Magistrate concerned may be, it will not necessarily justify the conclusion that the entire case of the prosecution is false." 24. Learned counsel for the appellants has argued vehemently that the substratum of the prosecution case and the main witness Khyhli Ram having been found false by a competent Court, the principles of res judicata will apply. These seven accused persons were put up for trial jointly in respect of the murder of Prabhati daughter of Khinwa Ram accused and also for the murder of Ram Kumar and Haribux. During the trial these two integrated cases were separated. It was argued that basically the prosecution case was that Ram Dayal and Khinwn Ram had murdered Prabhati daughter of Khinwa Ram and all the seven accused had conspired to commit this murder, the motive link to lay a case against Ram Kumar and Haribux that they are responsible for this murder, and whatever happened to them. Namely Ram Kumar and Haribux, was a consequence of murdering Prabhati. In the case involving the murder of Ram Kumar and Haribux, the Court, in fact, has considered and indeed, adjudicated on the circumstances as found in the trial court in respect of murder of Prabhati. During the arguments the statement of Khyali Ram P. W, 2 was referred to us. In the judgment also, the learned Sessions Judge has observed that according to Khyali Ram's statements the defence version in respect of Prabhati having run to fall down into the well and having died as a result of drowing becomes piece of rank false hood. During the arguments the statement of Khyali Ram P. W, 2 was referred to us. In the judgment also, the learned Sessions Judge has observed that according to Khyali Ram's statements the defence version in respect of Prabhati having run to fall down into the well and having died as a result of drowing becomes piece of rank false hood. The statement of this witness brings to light the fact that Prabhati did not by herself jumped into the well but was made to fall into it by accused Ram Dayal and Khinwa Ram whether alive or dead. It was also argued that the accused petitioners were challenged for murdering Prabhati and the learned. Sessions Judge acquitted all the seven accused petitioners vide order dated 17-8-81 In that case the identical evidence of Khyali Ram P. W. 2 was not believed. The Jugment will operate as res judicata. In the murder case with regard to Ram Kumar and Haribux, Khyali Ram bad been believed whereas in the other case with regard to the murder of Prabhati, Khyali Ram was found to be untruthful and disbelieving Khyali Ram the accused persons were acquitted. It was argued that the appeal in respect of murders of Ram Kumar and Haribux is in continuation of the trial, So it was submitted that the acquittal of same seven persons in the Prabhati murder trail on the same tacks will operate as res-judicata, when the{ identical evidence of Khyali Ram P. W. 2 in the murder of two persons, namely Ram Kumar and Haribux, and P. W. 5 in the murder case of Prabhati was considered by both the courts, The evidence of Khyali Ram P. W. 5 was found to be false in the case of Prabhati's murder. On the same fact, will completely destroy the very basis on which the Sessions Judge had found the same seven accused guilty in the double murder case. Apart from this there are number of infirmities in the statements of Khyaliram which proves him to be a false and procured witness. 25. On the same fact, will completely destroy the very basis on which the Sessions Judge had found the same seven accused guilty in the double murder case. Apart from this there are number of infirmities in the statements of Khyaliram which proves him to be a false and procured witness. 25. In reply to this argument it was argued that the rule of res judicata provides that a person who has once been tried by a court 'of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such-conviction of acquittal remains in force, not be liable to be tried again for the same offence for which a different charge from the one made against him might have been trait under Sub Section 1 of Section 22 or for which he might have convicted under Sal Section (2) thereof. So the principle of res judicata has no application in the present ease. The accused persons have been convicted by the order of the learnt Sessions Judge Dated 30-6-89 which is the subject matter of the present applied The murder of Smt. Prabhati was not a subject matter in the trial of this case. Till petitioners have not been convicted for committing murder of Prabhati. The against them in the present case is for the murder of Ram Kumar and Haribux and causing injuries to Dhapli. These charges are distinct charges and they were not the subject matter of trial before the Sessions Judge, Sikar in Prabhati's murder case. So the Principles of res-judicata has no application. 26. It was also argued on behalf of the complainant that rule of issue estoppel is that "when an issue of fact has been tried by a competent court in a previous proceeding, it precludes the reception of evidence to disturb with fir ding of fact when the accused is tried subsequently even for a different offence, which might be permitted. "So this rule is applicable when the following circumstance exist: (a) There should be trial an issue of fact in previous proceeding. (b) The second trial should be subsequent. (c) This rule precludes the reception of evidence to disturb the finding of fact which was in issue in the earlier trial. 27. "So this rule is applicable when the following circumstance exist: (a) There should be trial an issue of fact in previous proceeding. (b) The second trial should be subsequent. (c) This rule precludes the reception of evidence to disturb the finding of fact which was in issue in the earlier trial. 27. In the instant case, the earlier trial is the present trial of the accused in the court of Sessions Judge, Jhunjhunu, the judgment of which is dated 30 6-1980. The trial in the court of Sessions Judge, Sikar for committing murder of Smt. Prabhati is a subsequent trial and as such, this rule has no application on this ground itself. 28. It was also argued that in the instant case no evidence has been led by the prosecution with regard to the murder of Prabhati. The rule of issue estoppel only precludes the reception of evidence of a fact which has been tried earlier in a previous proceeding. When no evidence has been led in the present case about Prabhati's murder, rule of issue estoppel does not apply. 29. It was also argued that the rule of issue estoppel does not predicate that evidence given at one trial against the accused cannot again be given in the trial of the accused for distinct offence. In State of Andhra Pradesh v. Kokkllieyada Meerayya & another 1969 Cr. Appeal Report p. 40 it has been observed by their Lordship as under: "The rule does not predicate, that evidence given at one trial against the accused cannot again be given in the trial of the accused for distinct offence". 30. It was also argued on behalf of the State that the case of committing murder of Mst. Prabhati is quite different which was registered as F.I.R. No. 62 while the present case was registered at F. I. R No. 61 with regard to murder of Ram Kumar and Haribux. So neither the rule of res judicata nor the rule of issue estoppel applied in the present, We agree to the arguments advanced by the learned counsel for the State and the complainant. We do not agree with the arguments advanced by the learned counsel for the appellants. 31. It was contended on behalf of the appellant and the witness Khyali Ram P, W. 2 had stated that Sumer accused came to him and enquired about Prabhati. We do not agree with the arguments advanced by the learned counsel for the appellants. 31. It was contended on behalf of the appellant and the witness Khyali Ram P, W. 2 had stated that Sumer accused came to him and enquired about Prabhati. It is exfacia incredible that Sumer the brother of the girl, should have been a party to the murdering his sister and then should have approached Khyali Ram and asked him as to the whereabout of the girl, when he was supposed to be a party to the murder of his sister. As mentioned above that the statement of Khyaliram P. W. 2 is reliable and trust worthy, so the arguments advanced as above is of no value. 32. It was also argued that the statements under Section 164 was recorded of the witness Khyali Ram P. W. 2. In that statement he give entirely different version. In the statement Ex. D 1 he has stated that a sound was heard on which he and Sumer came out of the temple went towards the well and there Kbinwa Ram and Ram Dayal met them. It was stated that when he asked them what bad happened to which they replied that some woman has fallen in the well. So the only difference pointed out is that in the statement Ex. D. 1 Khyaii Ram has said that the accused replied that some woman has fallen, while in the statement before the Sessions Judge he has not stated so. As such, he is an unreliable witness, Apart from this, his statement under Section 164 as recorded on 6-9-79 i. e, nine days after the incident. In Raj Bahadur v. Slate of U. P. Hon'ble Supreme Court has held that when witness had been bound down under section 164 his evidence must j be carefully scrutinised. We follow this principle but as we have mentioned about the statement of Kbyali Ram P, W. 2 has been carefully scrutinised by the Sessions Judge. He has examined this statement in detail and found no infirmity in it. We also agree to the conclusion about this witness with the Sessions Judge. So there is nothing to disbelieve this statement. 33. The learned counsel for the appellants has also brought to our notice certain infirmities in the statements of prosecution witnesses particularly in the statement of S.H.O. Munna Khan. We also agree to the conclusion about this witness with the Sessions Judge. So there is nothing to disbelieve this statement. 33. The learned counsel for the appellants has also brought to our notice certain infirmities in the statements of prosecution witnesses particularly in the statement of S.H.O. Munna Khan. We have carefully looked into statements of prosecution witnesses. The infirmities pointed out are not of so serious nature which are sufficient I to throw the entire statements of the prosecution witness. So on this point also we do not agree with the appellants counsel. 34. It was with great stress argued that the investigation of the case is tainted The evidence with regard to the alleged recoveries at the instance of the accused-persons is false. The recoveries were made after three or four days of the arrest. Then there were no independent witness to the recoveries made at the instance of the accused persons. As such, the recoveries after such a long period of their arrest raised a suspicion of planting This argument has also no force. 35. The learned counsel for the petitioner pointed out that the accused Khinwa Ram and Moolchand has also received injuries and the prosecution has failed to prove these injuries. It was for the prosecution to explain how the injuries were inflicted to the accused persons. So 'here was no explanation regarding these injuries Dr. P.R. Talukdar has proved the injuries on the body of Khinwa Ram and Mool chand. They were medically examined by this doctor. Khinwa Ram had to injuries: 1. Lacerated wound which had injured the Tibia bone and the bone at the foot. 2. Contusion wound on the upper portion of the Tibia on the front side. Accused Moolchand had one injury i.e. : 2 X 11/2" X contusion wound on which blood had coagulated bone deep on the left parietal on the front side. 36. If we read the statement of the witness Dhapli P.W. 4, Ram Dhan P.W. 5 Shiv Karan P.W. 6 the injuries of both the accused have been explained. These wit- I ness have stated how these accused persons got these injuries. The argument is j that these witnesses are tutored witnesses so should not be believed. 36. If we read the statement of the witness Dhapli P.W. 4, Ram Dhan P.W. 5 Shiv Karan P.W. 6 the injuries of both the accused have been explained. These wit- I ness have stated how these accused persons got these injuries. The argument is j that these witnesses are tutored witnesses so should not be believed. In Laxman Singh v. State of Bihar 1976 S.C. p. 2263 ., it has been observed by their lordships that the non-explanation of the injuries throw doubt on the prosecution and rendered defence version probable. In the present case the prosecution has explained how the accused persons received these injuries. This explanation is believable, as such, the argument that the injuries of the accused have not been explained and this crease doubt in the prosecution story has no force. It was argued that the only evidence in this case is of the relative. The other witnesses who were present at the time of the incident the Omprakash and Nahar Singh have not been examined. We have discussed above that there is no ground to reject the statements of the witnesses merely because they are relatives. No doubt the statement of relative witnesses should be read very cautiously. The complainant party and the accused persons are in district relation and there is no reason that the accused persons will be falsely implicated in the murder case. It is not a good ground that as some of the witnesses have not been examined by the prosecution, the whole story should be thrown out. 37. The learned counsel for the accused also argued about the forensic report. The arguments is that the court ignored the report. This report shows that certain articles were received in the office of the Serologist and Chemical Examiner on 25.1 80 i e. five months after the incident. No explanation have been given for this inordinate delay. Then there is no mention of one rope yet the court observed that there were two pieces of blood stained ropes. It was argued that with regard to Lathi, Phasis and Jelly, the report is that the alleged bloodstains on them were found lobe disintegrated and their origin cannot be determined. The rope was not even sent for examination and the alleged weapon were not found stained with human blood. As such, the case is not proved beyond suspicion. It was argued that with regard to Lathi, Phasis and Jelly, the report is that the alleged bloodstains on them were found lobe disintegrated and their origin cannot be determined. The rope was not even sent for examination and the alleged weapon were not found stained with human blood. As such, the case is not proved beyond suspicion. This argument has no force as the conviction of the accused persons is not based on the report of the forensic expert. It is most unnatural and improbable conduct that the accused carried dead-bodies from the place of incident to Johra. It was also argued that the prosecution has failed to prove the motive of the accused persons. With regard to this motive some discrepancies in the statement of witnesses were pointed out. These discrepancies are of minor nature and not sufficient to throw the prosecution story. It was argued that even when there is direct evidence but there is no motive or the motive is not adequate, such, evidence will not sustain conviction. In State of U.P. v. Hari Prasad and others, 1974 S.C. p. 1740 . was referred. In this case their Lordship have held that: "This is not to say that even if the witnesses are truthful, the prosecution must fail for the reason that the motive of the crime is difficult to find. For the matter of that, it is never incumbent on the prosecution to prove the motive for the crime. And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to enquire whether the pattern on the crime fits in with the alleged motive.'' It was further observed: "Learned counsel for the State argued that it was open to us to examine the evidence apart from the question whether Vishwanath was assaulted through mistaken identity. We are unable to accept this argument. The very foundation of the prosecution case is that the accused had a motive to commit the murder of the complainant, that they mistook Vishwanath. for the complainant and that Vishwanath was murdered as a result of this unfortunate mistake. We are unable to accept this argument. The very foundation of the prosecution case is that the accused had a motive to commit the murder of the complainant, that they mistook Vishwanath. for the complainant and that Vishwanath was murdered as a result of this unfortunate mistake. It is not open to the prosecution to ask the court to discard the very substratum of their case and to construct a new theory founded on a hypothesis presented for the first time before us." 38. Thus, the arguments on behalf of the accused is that where motive or the substratum fails, the case also fails. We have considered this argument also and looking to the facts of the present case, ruling cited by the learned counsel does not help him. It was also argued on behalf of the petitioner that in this case there was no motive at all for the accused to beat Ram Kumar and Haribux and also to have strangulated them. According to the accused petitioners what they did was under the gravest provocation. Defence theory as mentioned above that Prabhati daughter of Khinwa Ram accused was seen in a compromising position with the deceased Ram Kumar and the accused beat them with Kasia and Lathies must ring true. Plea of self defence was therefore, advocated. Some accused persons have pleaded alibi. It was argued that Hon'ble Supreme Court has held that the plea of alibi does not preclude the court fro n giving him the benefit of the right of private defence. The courts are expected to administer the law of private defence in a practical way with reasonable liberty. 39. We have given out thoughtful consideration to these arguments also. We have discussed above the defence theory. We do not believe this theory. According to the accused persons they say the deceased Ram Kumar was committing rape with Prabhati and this gave them provocation and Kam Dayal accused snatched away the Kasia from the deceased Haribux and inflicted blows to both which resulted in their death. In the meanwhile Prabhati run away and jumped into the well. Had this story been correct then the death of Prabhati would have been by drowning. According to her postmortem report her death was due to strangulation and not by drowning. So the whole defence version is not only improbable but false. In the meanwhile Prabhati run away and jumped into the well. Had this story been correct then the death of Prabhati would have been by drowning. According to her postmortem report her death was due to strangulation and not by drowning. So the whole defence version is not only improbable but false. There was no question of any provocation to the accused. Thus the motive of the accused persons in on account of enormity. This enmity was with regard to agricultural land. Their relations were strained which resulted in forming an unlawful assembly by the accused persons with the common intention to take revenge from the complainant party. As such, the arguments advanced before us on behalf of the petitioners has no force. The infirmities brought to our notice in the statement of the prosecution witnesses are minor one and they are not sufficient to disbelieve the complete prosecution case. 40. Ram Dayal accused in his statement under Section 313 Cr. P. C. has stated that he snatched the Kasia from Haribux and inflicted injuries to both Ram Kumar and Haribux which resulted in their death. This is not possible that one person will murder two persons without having any injury on him. There were two persons without having any injury on him There were two persons Ram Kumar and Haribux, both could have faced the attack of Ram Dayal They could have saved themselves from the blows of Kasia. So actually Ram Dayal is not the person who had inflicted blow but he was accompanied by other accused persons and all jointly in furtherance of their common intention murdered Ram Kumar and Haribux and then strangulated them, so this is a clear case where the accused persons have formed an unlawful assembly and have entered into the field in possession of Ram Kumar and inflicted injuries to Ram Kumar, Haribux and Mst. Dhapli. All the accused persons took expert in this transaction in furtherance of their common intention and murdered Ram Kumar and Haribux and inflicted injuries Mst. Dhapli. The prosecution has proved this case. 41. It was also argued on behalf of the petitioners that the accused Moolchand is a child aged 1 4 years and he could not be given life or death sentences. Dhapli. The prosecution has proved this case. 41. It was also argued on behalf of the petitioners that the accused Moolchand is a child aged 1 4 years and he could not be given life or death sentences. This incident took place on 27-8-79 and the statement of accused Moolchand was recorded by the Sessions Judge of 14-4-1980 In the statement he has mentioned his age as 14 years. The Sessions Judge mentioned his age'to be 15 years. So approximately on the day of incident he was about 14 years of age. At the time of arguments learned counsel for the petitioners did not show us whether the children's Act was applicable in Rajasthan and particularly in area where the incident took place. The Children's Act made applicable in Jhunjhnu District from 10-11-81. As such, there is no illegality in convicting accused Moolchand. 42. In view of the above discussion we are of the opinion that the prosecution had succeeded in proving their case against all the appellant beyond reasonable doubt. The learned Sessions Judge has correctly appreciated the prosecution evidence and correctly arrived at the finding of accused being guilty and findings of the trial Judge do not warrant any interference. 43. Consequently the appeal having no merit foils and is hereby dismissed. 44. The appellants are in jail and shall suffer sentences awarded to them by the trial Judge. *******