JUDGMENT 1. This is an appeal filed by the accused appellant, Kailash, which is directed against the judgment of the learned Sessions Judge, Jhunjhunu, dated 29th September, 1984, by which he has been convicted under Section 302/34, 307/34 and 323/34 IPC and sentenced him to imprisonment for life and a fine of Rs. 50/-under Section 302/34 IPC; to a sentence of five years rigorous imprisonment and a fine of Rs. 50/-; under S. 307/ IPC; and to a sentence of 9 months rigorous imprisonment under S. 323/34. In default of payment of fine on both the counts, he has been ordered to undergo rigorous imprisonment for one month. 2. The prosecution story in brief is that on 18th July, 1983, at 3.30 a.m. P.W.7, Bhola Nath, lodged an oral report at Police Station, Khetri on the basis of which F.I.R. Ex- P. 2, was registered. It was stated by Bhola Nath, that he was residing in his field in Dhani Jogiyan alongwith his family members. In the night his son Gyarsi, aged 20 years, and Bhagwana, aged about 16 years had gone to attend a feast of Banwari Jogi, in Dhani Jogiyan. At about 10-00 p.m. in the night Gyarsi Gujar and Gulnath Jogi, came to his house and informed that both of his sons had been given beating by lathis by Kailash and Subey, sons of Jagdish Jogi, resident of Dhani Jogiyan. Gyarsi and Gulnath, also told that his son Gyarsi had been killed and Bhagwana was lying unconscious. Thereafter he alongwith these persons reached on the spot and found his son Gyarsi lying dead and Bhagwana lying unconscious in the field of Sardara. It was further stated that Pyarelal son of Nagar Mal, Madan Lal son of Gulnath, Mali Ram son of Jagga, Dhanna Ram son of Budh Ram, and Ramjilal son of Gokul Ram, had seen the incident and coming to and from of the accused persons. It was also stated that some cases regarding beating between him, Kailash Subey and his father were pending in the court and on that account this incident has happened. A watch and battery belonging to Gyarsi deceased was not found on the spot, the police registered a case under Sections 302, 307 read with Section 34 of the IPC. P.W. 15, Amar Singh, S.R.O. reached on the spot in the morning on 18.7.1983, and prepared site plan (Ex. A watch and battery belonging to Gyarsi deceased was not found on the spot, the police registered a case under Sections 302, 307 read with Section 34 of the IPC. P.W. 15, Amar Singh, S.R.O. reached on the spot in the morning on 18.7.1983, and prepared site plan (Ex. P. 3), inquest memo (Ex. P. 5) and also recovered blood stained earth and blood stained clothes of the deceased. Injured Bhagwana. was sent to the hospital and the dead body of Gyarsi deceased was also sent for postmortem. Dr. Ram Niwas, Mehta, P.W. 14, examined the injuries of Bhagwana and also conducted the autopsy of the dead body of Gyarsi deceased. Dr. Ram Niwas Mehta, incorporated the following injuries on the body of Gyarsi deceased:-External injuries: 1. Bruise paralel 10"X11/2" obliquely downwards from Kiphisternum to left costal margin upto left mid axilary line. 2. Bruises 1" X 1/2" three inches medial to left nipple in front of chest. 3. Bruise transversely 5"X 1/2" at lateral aspect of chest left side lower ⅓rd part. 4. Multiple bruises in a round with availing with intervening space 1/2" X 1/2" to 1 1/2X 1" obliquely from left angle of mandible to backward of neck. 5. Bruises 3" X 2" on upper ⅓rd of neck left lateral side and posteriority. 6. Scattered minute abrasions in 1" X 1" area at left lateral aspect of scrotum. 7. Bruises 6" X 1" obliquely upper ⅓rd of left side antero-laterally. 8. Bruises 6" X 2" with swelling on middle ⅓rd of left thigh antero-laterally. 9. Bruise 6" x 2" with swelling on lower ⅓rd of left things laterally. 10. Pulana skin at left wrist joint, durso-laterally in 21/2" x 1" area. The following external injuries were found on the scalp and neck of the deceased:- 1. Lacerated wound 2" x 1/2" x 1/2" on frontal area of scalp centrally. 2. Lacerated wound 21/2" x 1/2" x 1/2" on left fronts parietal region of scalp. 3. Lacerated wound 11/4" x 1/2" x 1/2" over left parietal prominance. 4. Linear fracture of frontal and temporal bone starting from mid-line going down wards upto xygomatic area (right side), 5. clotted blood blue in colour present in muscles of neck upto upper 3/4th part left side. 6. Dislocation of 2nd and 3rd cervical vertebram and crushing and spinal cord. 7. 4. Linear fracture of frontal and temporal bone starting from mid-line going down wards upto xygomatic area (right side), 5. clotted blood blue in colour present in muscles of neck upto upper 3/4th part left side. 6. Dislocation of 2nd and 3rd cervical vertebram and crushing and spinal cord. 7. Fracture of occipital bone 1/2" x ⅓" centrally from which blood was oozing. The police also recovered a lathi at the instance of the accused Kailash from his house and sent the same for chemical analysis. In the report of chemical analyst Ex.P.20. it was found that there was human blood on the lathi but the no blood group could be discovered on the lathi as the blood was found dis-interegated. The police after completing the investigation submitted a challan against accused Kailash and Subey in the court of learned Munsif and Judicial Magistrate,as Khetri. The learned Magistrate, Khetri committed the case for trial to the court of Sessions, but accused Subey, was found to be less than 16 years of age such the learned Sessions, Judge, transferred his case for trial by the Children's as Court, Jaipur. Accused Kailash, was charged for the offences under Ss./302,302/ 34, 307, 307/34, and 323, 323/34. The accused denied the charges and claimed to be tried. 3. The prosecution in support of its case examined 15 witnesses in all. Accused Kailash, in his statement under Section 313 Cr.P.C, denied the incident and stated that he was falsely implicated in the case on account of previous litigation and enmity with the complainant party. He did not examine any evidence in defence. Learned trial court, believed the prosecution story and convicted and sentenced the accused Kailash, in the manner indicated above. Aggrieved against the judgment of the learned Sessions Judge, this appeal has been filed by accused Kailash. 4. Mr. Y. C. Sharma, learned counsel for the appellant, submitted that there is no evidence except Bhagwana Ram, P.W. 1, who has witnessed the occurrence. It is submitted that he is an injured witness and interested in the prosecution case. It is further argued that though according to the prosecution story Pyarelal, P.W.6, had also accompanied Bhagwana Ram and Gyarsi and was produced as an eye witness of the occurrence, but he did not support the prosecution story and was declared hostile. It is submitted that he is an injured witness and interested in the prosecution case. It is further argued that though according to the prosecution story Pyarelal, P.W.6, had also accompanied Bhagwana Ram and Gyarsi and was produced as an eye witness of the occurrence, but he did not support the prosecution story and was declared hostile. It was submitted that Pyarelal, P.W.6, has been stated to be nephew of Bhagwana Ram, P.W.l, injured and there was no question of possibility of winning over this witness by the defence. It was submitted that according to him he had not seen the assailants at the time of the incident and there is no reason to discard his testimony. So far as Bhola Nath, who had lodged the F.I.R. as well as P.W.3, Madan P.W.5. Mali Ram, are concerned, they have stated that Pyare Lal, had disclosed the name of the assailants to them. It was submitted that the evidence of these two witnesses is of no value when Pyarelal, himself has stated that he had not seen the assailants. 5. It was also argued by Mr. Sharma, learned counsel for the appellant, that according to the site plan, Ex. P. 3, there was a clear way shown by the arrows which was going from Dhani Jogiyan to the field of the complainant where they were also residing. It was submitted that the place of incident is shown in the filed of Sardara Ram and there was no question of the injured Bhagwana and the deceased Gyarsi to have gone in the field of Sardar, when there was no way through the field of Sardara Ram, while going from Dhani to the house of the complainant party. It was also argued that there are material discrepancies in the statement of Bhagwana Ram, P.W.l, from the story narrated by him in his statement under Section 161 Cr.P.C. recorded by the police and the statement given by him during trial. Mr. Sharma, learned counsel for the appellant, thus, argued that no conviction can be maintained on the basis of the solitary testimony of Bhagwana Ram, who is not only an interested witness but also had enmity and litigation with the accused persons. 6. On the other hand, Mr. Mr. Sharma, learned counsel for the appellant, thus, argued that no conviction can be maintained on the basis of the solitary testimony of Bhagwana Ram, who is not only an interested witness but also had enmity and litigation with the accused persons. 6. On the other hand, Mr. R. Avi, learned Public Prosecutor submitted that the conviction can be maintained even on the basis of solitary statement of Bhagwana Ram, who is an injured and his presence on the spot cannot be doubted. It was further argued that the testimony of Bhagwana Ram, finds corroboration from the medical evidence and by the statements of P.W. 3, Madan Lal and P.W.5, Mali Ram, who have stated that both the accused persons Kailash and Subey while returning back after the incident had told them not to proceed further as two dead bodies were lying ahead. According to the learned Public Prosecutor, this sort of conduct on the part of the accused persons also corroborates the prosecution version that they had given beating by lathi to Bhagwana Ram, injured and Gyarsi, deceased and it was in the knowledge that dead bodies were lying at some distance. 7. We have given our thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have thoroughly perused the record. It has come in the statement of P.W.7, Bhola Nath, who is the father of Gyarsi, deceased and Bhagwana Ram, injured that Kailash and others have lodged a case of beating against them which was pending in the court of Khetri. The prosecution has also come with a clear case that the accused persons had inflicted injuries on account of previous litigation between the families of the accused persons and the complainant party. With this back-ground we have to examine the statement of Bhagwana Ram, injured, who is the solitary eye witness in this case. According to Bhagwana Ram, injured P.W. 1, he was returning back in the fateful night along with Pyarelal, and Gyarsilal, after taking meals in a feast given by Banwari Jogi, in Dhani Jogiyan. When they came a little distance ahead of dhai, when accused Kailash and his brother came from the back-side and inflicted blows on the head of Gyarsi, deceased. The accused Subey, also inflicted injuries in the back of his brother and Gyarsi, deceased fell-down, this incident, had taken place in the field of Sardara. When they came a little distance ahead of dhai, when accused Kailash and his brother came from the back-side and inflicted blows on the head of Gyarsi, deceased. The accused Subey, also inflicted injuries in the back of his brother and Gyarsi, deceased fell-down, this incident, had taken place in the field of Sardara. Accused Kailash, and his brother Subey went on inflicting injuries by lathis even after Gyarsi, had fallen down on the ground. The accused Kailash, then told that Gyarsi,had died and now Bhagwana Ram, should be beaten. There-after, Kailash, inflicted injures by a lathi on his head. There-after he also fell down near the body of Gyarsi, and became un-conconscious. Thereafter he regained consciousness in the hospital at Khetri. He has further stated that after 7 days, when he had returned back to his house then he was informed that Gyarsi, had also died, and he could identify the watch and the battery of his brother Gyarsi, their she goatshad entered inside the field of the accused and his brother feeling aggrieved on that account the accused had given beating to them. In the cross-examination he admitted that the field of Sardar, was at a distance of 1/2 Kmts, from the house of Banwari Jogi, they had taken 4 or 5 minutes in reaching the field of Sardar. In the south of the field of Sardar, there was the house of Bansi Gujar, and one more person whose name he did not remember. The house of Hanuman Gujar, was also there. On the eastern side of the field of Sardar, there was a way for going to their Dhani. While going from the house of Banwari Jogi to Dhani, there was a passage through the field of Sardara. He also stated that he has no idea whether it was a dark night or a moon lit night. Pyarelal, had also gone with him in the feast from the Dhani. Pyarelal was his real nephew. He admitted that he was trailing behind 25 steps from gyarsi, he was a head of all. Thereafter, Pyarelal and Gyarsi was in the last and Gyarsi, did not raise any hue and cry when he was beaten. He himself also did not raise any hue and cry. When they were beaten, Madanlal, Mala Ram and Ramjilal, were also present outside the fencing of the field. Thereafter, Pyarelal and Gyarsi was in the last and Gyarsi, did not raise any hue and cry when he was beaten. He himself also did not raise any hue and cry. When they were beaten, Madanlal, Mala Ram and Ramjilal, were also present outside the fencing of the field. He also admitted that the fact of Ramjilal, Mala Ram and Madanlal, standing out side the fencing of the field was not stated in Ex. DI, a statement recorded under Section 161 Cr. P.C, He also admitted that he had not stated in his statement given to the police that after hearing the noise he had turned-back and thereafter he had seen Kailash and subey, coming towards them. He also admitted that he had not stated in his statement given the police that she goats had entered inside the field of the persons. He stated on his own accord that the litigation regarding she goats was different. He also admitted that when the police had recorded his statement then he was not in his full senses and he was only speaking and could not say as to what was written by the police. Gyarsi, deceased did not keep battery with him all the time. He also admitted that there was no passage through the field of Sardara, and he has put a wood for his own passage, and it takes 1/2 an hour for reaching to their house from the field of Sardara. A litigation was going on a few days earlier from the date of incident with Kailash and Subey. He denied any incident of beating of the father of Kailash or any case pending in that behalf. He further stated that Gyarsi had lit the torch but then said that the torch was in his own hand. He admitted that in his statement Ex. D1, there was no mention of any torch in his hand. He was shown the watch article (1) and battery article (2) but stated that the same did not belong to them and not to his brother. 8. P. W. 2, Ramjilal, stated that he had also gone to attend the feast given by Banwari Jogi and Bhagwana and Gyarsi, had started earlier to them after taking the meals. He had seen accused Kailash and his brother Subey, alongwith lathis going towards their house. 8. P. W. 2, Ramjilal, stated that he had also gone to attend the feast given by Banwari Jogi and Bhagwana and Gyarsi, had started earlier to them after taking the meals. He had seen accused Kailash and his brother Subey, alongwith lathis going towards their house. He further stated that Pyarelal, came running and informed that a fight has taken-place between Gyarsi, Kailash, Subey and Bhagwana. Pyarelal, did not tell as to who was beating to whom. At that time Madanlal and Maliram, were also there. He further stated that whatever they were told by Payrelal, they also narrated the same to Bansi. There-after, he alongwith Bansi, Maliram and Madanlal, went on the spot, there they saw Gyarsi, having died and Bhagwana, taking deep breath. In the cross-examination he admitted that he had seen the accused Kailash and his brother Subey, 1 /2 an hour after Gyarsi and Bhagwana, had gone from there. He had seen the accused persons going in front of the house of Banwari Jogi and he did not have any talk with the accused persons. 9. Madanlal, P.W. 3, is also a witness who had gone in that feast of Banwari Jogi. According to him Gyarsi and Bhagwana, had started towards their house after taking meals. When they were standing in front of the house of Banwari Jogi, Ramjilal and Mali Ram, were also with them. He had also seen accused Kailash and his brother following Gyarsi and Bhagwana. He further stated that Pyarelal, returned back running and told that Kailash, Bhagwana, Gyarsi and Subey, were fighting. On this he alongwith Ramjilal, Mali Ram, went on the spot. In the way they met Kailash & Subey near the house of Banshi. The accused Kailash and his brother told that nobody would proceed further and further told that the dead bodies of Bhagwana and Gyarsi were lying a head. On this they came back and the accused Kailash and his brother Subey, went towards their house. 10. A perusal of the statements of P. W. 2, Ramjilal and Madanlal, P. W. 3, show that Pyarelal, had come running towards them and had told the names of the accused persons. Pyarelal, has been examined as P. W. 6 and he clearly stated that after taking meals he was returning back with Gyarsi and Bhagwana. 10. A perusal of the statements of P. W. 2, Ramjilal and Madanlal, P. W. 3, show that Pyarelal, had come running towards them and had told the names of the accused persons. Pyarelal, has been examined as P. W. 6 and he clearly stated that after taking meals he was returning back with Gyarsi and Bhagwana. When they reached near a field of Dhani of Gujars then he set-down for making water. Gyarsi and Bhagwana, entered inside the field. There-after he heard some noise and saw reflection of some persons, his eyes were closed. There-after he ran back and did not tell about the incident to anybody. He had not identified the two persons whose noise he had heard. He did not know what was in the hands of these persons. He clearly stated that he cannot tell whether these two persons were accused Kailash and his brothers Subey. Pyarelal, was declared hostile on the request of learned Public Prosecutor. 11. It may be noted that Pyarelal, is the real nephew of Bhagwana Ram, P. W. 1, as admitted by him- There is no question of his being won over by the defence side. He has clearly denied to have seen or identified the assailants as Kailash or his brother Subey, He admitted that he knew them before-hand. P.W. 2, Ramjilal and P.W. 3, Madanlal, are not the witnesses of the incident nor they had seen the accused persons inflicting any blows on Gyarsi deceased and Bhagwana Ram, injured. Whatever they have stated is based on the information given to them by Pyarelal. As already mentioned above, Pyarelal, totally denied to have identified the assailants and also stated that he did not tell anybody regarding incident. There is a material contradiction in the statements of P. W. 2 Ramjilal and P. W. 3, Madanlal, in the words spoken by accused Kailash to them. Ramjilal, merely stated that he had seen Kailash and his brother returning back towards their house with lathis. On the other hand, Madanlal, stated that accused Kailash, told that nobody would proceed further and further told that dead bodies of Bhagwana Ram and Gyarsi were ahead. This part of the story narrated by Madanlal, appears to be false and is not supported by Ramjilal, when both Ramjilal and Madanlal, accompanied together. On the other hand, Madanlal, stated that accused Kailash, told that nobody would proceed further and further told that dead bodies of Bhagwana Ram and Gyarsi were ahead. This part of the story narrated by Madanlal, appears to be false and is not supported by Ramjilal, when both Ramjilal and Madanlal, accompanied together. It is also falsified from the act that there was no question of two dead bodies of Bhagwana and Gyarsi because Bhagwana, never died and there was no question that Kailash accused might have told to Madanlal and other persons that two dead bodies of Bhagwana and Gyarsi were lying ahead. P.W. 4, Gyarsilal, has no personal knowledge of the incident and he only states whatever was told to him by Banshi Gujar. P. W. 5, is Mali Ram, who has tried to support the statement of P. W. 3, Madanlal, but he even does not state that Pyarelal, had met them and had told that a fighting was going on between the above mentioned 4 persons. 12. Bhola Nath, P.W. 7, is the father of Gyarsi and Bhagwana, and he stated that Gyarsi Gujar and Gulnath, had come to him and informed that his sons had been beaten. They had also informed that Gyarsi had died and Bhagwana, was taking deep breath. He further stated that Pyarelal, had told him that Kailash and Subey had given beating to Gyarsi and Bhagwana. As already mentioned above Pyarelal, does not support the prosecution case and does not tell that he narrated incident to Bhola Nath, P.W. 7, or to anybody-else. Admittedly, Bholanath, is not a witness of incident and if Pyarelal, had not told the name of the accused persons to him then the mentioning of the names of the accused persons in the F.I.R. is falsified. 13. P. W. 8, Banshi, states that Madan Jogi, P. W. 3, had come to him and had narrated the incident. We have already discussed above that Madan Jogi, was not an eye witness and he had heard the names of the accused persons from Pyarelal, but Pyarelal, does not support the above mentioned story. Thus, the evidence of Banshi, does not lend any support to the prosecution case. We have already discussed above that Madan Jogi, was not an eye witness and he had heard the names of the accused persons from Pyarelal, but Pyarelal, does not support the above mentioned story. Thus, the evidence of Banshi, does not lend any support to the prosecution case. P.W. 9, Sardara Ram, who is the witness of recovery of lathi from the house of Kailash and is also a witness of site-plan, inquest memo and recovery of blood stained earth and blood stained clothes. A perusal of his cross-examination shows that he is not able to give proper description of the boundaries of the house of Kailash as noted in the site-plan Ex. P. 13, prepared by the police. This creates a serious doubt in the recovery of lathi. Another witness Birbal, of the recovery has not been examined by the prosecution. So far as Banwari, P.W. 10 is concerned, he has not stated anything regarding incident except that he came to know after the persons had returned back taking their meals, that Kailash and his brother Subey, had killed Gyarsi and his brother Bhagwana. He does not state the source of such information, nor tells the name of any persons who may have told him regarding this fact. 14. Admittedly, there was litigation going on between the two families of the accused persons and the complainant party and Bhola Nath, has admitted that a case against them filed by the accused persons for beating was pending in the court. Thus, the possibility of naming the accused persons as assailants cannot be ruled-out. Pyarelal, who had admittedly accompanied the deceased Gyarsi and the injured Bhagwana does not support the prosecution case though he is the real nephew of injured Bhagwana. All the other witness produced by the prosecution except Bhagwana, injured have derived the knowledge regarding the incident as stated by Pyarelal. If the evidence of Pyarelal, given in the court does not support the prosecution case then there remains the solitary statement of injured Bhagwana. There are contradictions in his statement from the case set-up in his statement under Section 161 Cr. P. C. and the case told by him during the trial. If the evidence of Pyarelal, given in the court does not support the prosecution case then there remains the solitary statement of injured Bhagwana. There are contradictions in his statement from the case set-up in his statement under Section 161 Cr. P. C. and the case told by him during the trial. When faced with the difficulties of explaining such contradictions, Bhagwana, stated that he was not in full sense when his statement was recorded by the police and he was only uttering some word but was not sure and as to what was written by the police. 15. Apart from the above circumstances, there is serious infirmity in the prosecution case which creates a doubt in our mind. In the site-plan Ex. P. 3, there is straight thorough passage shown leading-from Dhani Jogiyan to the field of the complainant where they were also residing. According to this site-plan, there was neither any possibility nor any reason for Bhagawana and Gyarsi deceased to have gone in the field of Sardara, where the alleged incident took-place. It was a dark night and Bhawana, P.W. 1, has tried to show that Gyarsa, was having a torch with him. In the cross-examination, he denied to identify the torch article (2). There is no convincing proof on the record to hold that the accused persons had taken the watch and torch belonging to Gyarsi, deceased and the same might have recovered from the possession of Kailash. Bhagwana, injured in this regard could have been the best person to identify these articles but he even denied to identify these articles even when shown in the court. Even Bhagwana, P.W. 1, states that he had seen the accused persons attacking from behind and in any case we feel unsafe to rely on the solitary statement of Bhagwana, injured P,W., when he is a highly interested and partisan witness. The prosecution has tried to show Ramjilal, Mali Ram and Madanlal, an eye witnesses having seen the incident from outside the fencing of the field, but they do not support the prosecution story as eye witnesses. 16. Thus, taking in view the entire evidence placed on record of this case, we are convinced that the prosecution has failed to make out a case against the accused appellant beyond any shadow of doubt. 17. 16. Thus, taking in view the entire evidence placed on record of this case, we are convinced that the prosecution has failed to make out a case against the accused appellant beyond any shadow of doubt. 17. In the result, the appeal is allowed, the conviction and sentence of the accused appellant Kailash, for the offences under S. 302/34. 307/34 and 323/34 IPC is set-aside and he is acquitted of all the charges. The accused appellant shall be released forthwith if not required in any other case.Appeal allowed. *******