JUDGMENT 1. - Accused Dula Rawat was convicted under sections 302, 307, 326 and 323, I.P.C. and sentenced to imprisonment for life on the first count, rigorous imprisonment for five years on the second and third counts and three months rigorous imprisonment on the last count by the learned Sessions Judge, Pali by his judgment dated December 23, 1981. He has come-up in appeal and challenges his conviction. 2. Briefly stated, the prosecution case is that the deceased-victim Suwa, aged about 25 years, was the brother of PW 1 Smt. Dhapu and PW 3 Bhoma and the son of PW 2 Smt. Sakina. They were residing together in village Ration-ka-Khera, P.S. Raipur district Pali. Smt. Dhapu (PW 1) was married to accused Dula. She gave birth to a male-child, who passed-away after one month of his birth. The accused turned out Smt. Dhapu from his house and sent her to her parents house. Smt Dhapu came to her parents house and started living with them. This took place somewhere in May, 1976. Two or three days afterwards, the accused came to village Ration-ka-Khera on May 21, 1976 and stayed with his in-laws. The deceased Suwa was sleeping on the Chabutari situate out-side contiguous to the house. At about 6.00 a m. on May 22, 1976. Smt. Sakina (PW 2) was peeling the corn of maize ears and Smt, Dhapu was working inside the house. The accused took-up the spade lying near Smt. Sakina and started striking blows to her with it. She raised cries, Smt. Dhapu (PW 1) came out. The accused thereafter struck innumerable blows to Suwa with the spade. Both of them, i.e. Suwa and Smt Sakina became unconscious and the spot, There was profuse bleeding from their wounds and the clothes they were wearing got drenched with it. The accused paddled the bicycle and escaped. PW 4 Koopa and some other persons of the village collected on the spot and took the two injured alongwith Smt. Dhapu to the Government Hospital, Beawar, where they were admitted for medical treatment. Dr. Sushil Narain, who was on duty, informed the City Police Beawar on telephone that Suwa and Smt. Sakina were admitted for medical treatment and that their writing condition was precarious. This information was recorded in to in the Rojnamcha of the Police Station. Dr. Sushil Narain, who was on duty, informed the City Police Beawar on telephone that Suwa and Smt. Sakina were admitted for medical treatment and that their writing condition was precarious. This information was recorded in to in the Rojnamcha of the Police Station. The Head Constable Police Kesarsingh (PW 7) immediately went to the hospital and recorded the statement Ex. P 1 of Smt. Dhapu. A case under section 307, I.P.C. was registered against the accused. Since the offence was committed within the jurisdiction of Police Station, Raipur, Ex. P 1, alongwith the formal first information report Ex. P 5 were sent there through a special messenger. Despite medical treatment, Suwa did not survive and passed away at about 7.45 a.m. on May 23, 1976. The Police added section 302, I.P.C. and proceeded with investigation. The Station House Officer Ramsingh (PW 6) went to the Government Hospital, Beawar and prepared the inquest report of the dead body of Suwa. He also visited the site of the incident and prepared the site plan. The injuries of Suwa (during his life-time) and the injuries of Smt. Sakina were examined on May 22, 1976 by PW 15 Dr. Sushil Narain, He found the following injuries on the person of Smt. Sakina and Suwa ;-On the person of Suwa:- 1. Incised wound 11/4" X 1/4" X 1/4" fore-head just above left eyebrow. 2. Incised wound 1/2" X ⅛" X ⅛" fore-head left side. 3. Lacerated wounds two 1" X 1/2" X 1/4" and 2" X ⅙" X ⅛" left cheek. 4. Abrasion 1/4" x ⅙" face left side near chin. 5. Incised wound 11/4" X 1/2" X 1/4" left mastoid region. 6. Black eye left. 7. Swelling left side maxillary region. On the person of Smt. Sakina:- 1. Abrasion 1/4" X ⅙" on nose. 2. Abrasion 1/4" X 1/4" forehand left side. 3. Lacerated wound 1" X 1/4" X ⅙" forehead just above right eyebrow. 4. Black eye right. 5. Lacerated wound 1/4" X ⅛" X ⅛" near lateral angle of right eye. 6. Lacerated wound 1/4" X 1/2" X ⅙" face right side. 7. Lacerated wound 1/2" X 1/4" X ⅛" near medical canthus of right eye. 8. Abrasion 1/4" X 1/4" fore-head right side. 9. Incised wound 11/4" X 1/4" X bone deep and 21/4" X 1/4" X bone deep scalp posteriorly. 3. 6. Lacerated wound 1/4" X 1/2" X ⅙" face right side. 7. Lacerated wound 1/2" X 1/4" X ⅛" near medical canthus of right eye. 8. Abrasion 1/4" X 1/4" fore-head right side. 9. Incised wound 11/4" X 1/4" X bone deep and 21/4" X 1/4" X bone deep scalp posteriorly. 3. On X-ray examination, fractures of some of her bones were detected. The injury report issued by the doctor is Ex. P 20. The medico-legal autopsy of the dead body of Suwa was conducted at about 10.00 a.m. on May 23, 1976 by PW 13 Dr. V.V. Sharma-the then Medical Jurist, Government Hospital, Beawar. The doctor found the following injuries over the dead body:-External 1. Incised wound 11/4" X 1/4" X 1/4' on left side or the fore-head spindle shape with clean cut margins situated above the left eye-brow, obliquely and floor containing clotted blood. 2. Incised wound 1/2" X ⅛" X ⅛" on the left frontal eminence, obliquely situated. 3. In-cerated wound 1" X 1/2" X 1/4" on the left cheek, obliquely situated. 4. Lacerated wound 1/2" X ⅙" X ⅛" on the left cheek medical to the injury No. 3. 5. Abrasion 1/4" X ⅙" on the left side of the chin. 6. Incised wound 11/4" X 1/2" X 1/4" on the left mastoid region. Internal- 1. A fissured fracture 6" in length of the left parietal bone, membrane's were congested, subdural haematoma was present. Brain matter was congested and was covered with clotted and fluid blood, under the fractured bone. 2. Fracture of the left maxilla 1" X cavity deep. 3. Lungs, liver, spleem and kidneys were congested. Circumcision was not present. Rest of the organs were found to be healthy 4. All the injuries were ante-mortem. The doctor was of the opinion that the cause of death was shock and hemorrhage as a result of the fracture of the cranial bones. He was also of the opinion that the head injury or the victim was sufficient in the ordinary course of nature to cause death. The postmortem examination report issued by him is Ex. P. 16. 5. The accused absconded and could not be traced out by the police during investigation despite best efforts. He left his village and went to live with his sister in district Bhilwara.it was on June 11, 1979 that he was arrested in villagead Badrna P. S. Banera district Bhilwara. The postmortem examination report issued by him is Ex. P. 16. 5. The accused absconded and could not be traced out by the police during investigation despite best efforts. He left his village and went to live with his sister in district Bhilwara.it was on June 11, 1979 that he was arrested in villagead Badrna P. S. Banera district Bhilwara. On the completion of investigation. the police submitted a crime report against the accused in the Court of the Chief Judicial Magistrate, Pali, who, in his turn, committed the case for trial to the Court of Sessions. The learned Session Judge framed charges under sections 302, 307, 326 and 323, I.P.C., against the accused, to which he pleaded not guilty and faced the trial. In his statement recorded under section 313, Cr. P. C.. the accused pleaded that he did not visit his in-laws on May 21, or May 22, 1976, Since he had turned-out his wife Smt. Dhapi (PW1) from his house, she became annoyed and became displeased with him. Later on, he contacted a second marriage and that further irked Smt. Dhapi, Some unknown person had committed the murder and he was falsely implicated due to his strained relations with his in-laws and his wife Smt. Dhapi. In order to establish the charges, the prosecution examined seventeen witnesses and filed one documents. In defence, no evidence was adduced. On the conclusion of the trial the learned Sessions Judge held the prosecution story substantially true and the charges duly proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set. 6. We have heard Mr. Mathur-learned counsel for the appellant and the learned Public Prosecutor Mr. Soni. We have also gone through the case file carefully. 7. Mr Mathur did not challenge the evidence of the doctors PW 13 V.V Sharma, who conducted the post-mortem examination & PW 15 Dr. S.N Sharma with had examined the injuries of the deceased-victim Suwa and Smt. Sakina. We, therefore, need not touch and discuss the evidence of the doctors in detail and at length. We have also gone through the statements of these two doctors and find no reasons to distrust their opinion about the number and nature of the injuries inflicted to Smt. Sakina (PW 2) and the cause of death of the deceased-victim Suwa. The death of Suwa was not natural but homicidal. We have also gone through the statements of these two doctors and find no reasons to distrust their opinion about the number and nature of the injuries inflicted to Smt. Sakina (PW 2) and the cause of death of the deceased-victim Suwa. The death of Suwa was not natural but homicidal. The injuries of Smt, Sakina (PW 2) were dangerous to life. 8. In convicting the accused, the Sessions Judge treated and accepted PW 1 Smt. Dhapi, PW 2 Smt. Sakina and PW 3 Bhoma as the witnesses of truth, on whom reliance could be placed without risk. He held that the presence of these three witnesses on the spot was not open to any doubt as the incident had taken place and out-side their house, 9. Mr. Mathur-learned counsel for the appellant rightly pointed out that the fate of the case rests squarely on the evidence of these three witnesses, i.e Smt. Dhapi (PW 1), Smt. Sakina (PW 2) and Bhoma (PW 3). It was argued that if the evidence of these three witnesses is found suspicious or unreliable, there is no other evidence to link the accused with the incident, it was contended that these three witnesses were wrongly relied upon by the court below. They were the close relatives of the deceased-victim, being his brother, sister and mother. Admittedly, the accused's relations with them were strained and they were, therefore, inimical to him. It was also argued that PW 3 Bhoma was hardly a child of six/seven years of age on the day of the incident and his statement was recorded nearly after four years. He was, therefore, unable to remember what he had seen four years ago. It was also argued that there was no independent witness of the locality to support the incident. 10. It was, on the other hand, contended by the learned Public Prosecutor that the accused was the husband of PW 1 Smt. Dhapi and son-in-law of PW 2 Smt. Sakina. It was difficult to conceive that they would screen the real culprit and substitute the accused in his place. The relations between the accused and them may not be very sweet, but they had not completely broken down. The accused came to his in-laws house and stayed with them in the night. That shows that the wife and the in-laws had not completely disowned him. The relations between the accused and them may not be very sweet, but they had not completely broken down. The accused came to his in-laws house and stayed with them in the night. That shows that the wife and the in-laws had not completely disowned him. We have taken the respective submissions into consideration. 11. PW 3 Bhoma, admittedly, was of six/seven years of age when the incident had taken place. He was examined as a witness during trial on November 26, 1980, that it to say, nearly after four years. It is inconceivable that a child of six/seven years would remember the incident for four years. As such, the testimony of PW 3 Bhoma is not of much help to the prosecution. Prudence enjoins that the testimony of such a child witness should be ignored from consideration. 12. We are then left with the testimony of PW 1 Smt. Dhapi and PW 2 Sakina. The former is the wife and the latter is the mother-in-law of the accused. It would be proper to briefly read what they deposed. 13. PW 2 Smt. Sakina deposed that the accused turned out his wife Smt. Dhapu (PW 1) from his house and she came to live with her. A few days afterwards, the accused came to her house and stayed with her family. In the night, the accused slept out on the cot. Her son Suwa, the deceased-victim, also slept on a cot outside in that night. Next day, in the morning, when she was peeling the corn of maize-heads the accused took-up the spade lying near her and struck a blow with it on her head. He thereafter struck some more blows to her with the spade. She raised cries and became unconscious. She regained consciousness later on in the hospital at Beawar. She denied the suggestion in cross-examination that as the blows were struck to her from behind, she could not see the assailant. She was firm and positive that it was the accused Dula, who had struck blows to her with the spade. She was cross-examined at some length, but nothing could be elicited from her which may be helpful to the accused. We are unable to conceive that she would fail to identify her own assailant who had struck so many blows to her with the spade. She was cross-examined at some length, but nothing could be elicited from her which may be helpful to the accused. We are unable to conceive that she would fail to identify her own assailant who had struck so many blows to her with the spade. More over, the accused her son-in-law, being the husband of her daughter Smt. Dhapu (PW 1). It is difficult to imagine that she would leave her real assailant and substitute her own son-in-law in place of the real one. Though she did not state that she had seen the accused inflicting blows to her son Suwa, it is not of much consequence. She could not see the accused inflicting blows to her son because she became unconscious on account of the accused's inflicting severe and serious blows to her. 14. PW 1 Smt. Dhapu is the wife of the accused. She deposed that as the accused turned her out from his house, she came to village Raiton-ka-Khera and started living with her mother Smt. Sakina, brother Suwa and the other inmates of the family. After a few days, the accused came to village Ration-ka-Khera and stayed with her parents family. He slept there. Her brother Suwa was sleeping out-side in open. Next day, in the morning, her mother was peeling the corn of the maize-heads and she was working inside the house. The accused took-up a spade and started striking blows to her mother Smt. Sakina with it. Her mother raised cries. She rushed. The accused struck a number of blows to her mother and thereafter struck eight/ten blows to her mother Suwa with both the sides of the spade. The accused thereafter mounted a bicycle and escaped. The witness gave a positive and categoric statement that she had seen the accused inflicting blows to her mother and brother Suwa, with the spade. She further deposed that many persons of the village collected on the spot and took her mother and brother Suwa to the hospital at Beawar. She accompanied them. At Beawar, her statement Ex. P 1 was recorded by the police She was cross-examined, but without success. A suggestion was made to her that as she was turned-out by the accused from his house, she was falsely implicating him The suggestion was denied. It is true that she stated that in no case she was willing to live with the accused. P 1 was recorded by the police She was cross-examined, but without success. A suggestion was made to her that as she was turned-out by the accused from his house, she was falsely implicating him The suggestion was denied. It is true that she stated that in no case she was willing to live with the accused. But that shows her anxiety because she was turned-out by the accused and the accused had committed the murder of her brother Suwa. In these circumstances her refusal to live with the accused as his wife is natural. It cannot be inferred from her refusal to live with the accused that she had falsely connected him with the murder of her brother Suwa. While assessing and evaluating her testimony, the fact that she is the wife of the accused cannot be lost sight off. A wit would be the last person to falsely implicate her husband on a criminal charge. There is nothing in her statement which may make it suspicious or unworthy of belief. 15. The incident took place in the house of PW 2 Smt. Sakina. As such, the presence of Smt. Sakina and Smt. Dhapu there at the house is not open to any suspicion. There presence at their house is quite natural and if they were present there, in all probability they must have seen the incident, More over, one of them, namely, PW 2 Smt. Sakina is the injured person, who was inflicted blows by the accused in this very incident. That against shows the presence of these two witnesses on the spot. 16. Then, there is the statement of PW 10 Ahmed. He deposit that the accused came to his 'Bera' in the afternoon of the day preceding the incident. The witness further stated that in the evening, he went to the house of Smt-Sakina (PW2) and saw the accused there. The accused slept there in that night. Next day, he learnt that the son of Smt. Sakina was murdered. That statement of this witness is again positive and establishes the presence of the accused at the house of PW 2 Smt. Sakina in the night preceding the incident. 17. The learned Sessions Judge has accepted and treated PW 1 Smt. Dhapu and PW 2 Smt. Sakina as the witnesses of truth. He found their evidence reliable and dependable. That statement of this witness is again positive and establishes the presence of the accused at the house of PW 2 Smt. Sakina in the night preceding the incident. 17. The learned Sessions Judge has accepted and treated PW 1 Smt. Dhapu and PW 2 Smt. Sakina as the witnesses of truth. He found their evidence reliable and dependable. We find no good and cogent reasons to disagree with the learned Sessions Judge and to disturb his finding on the credibility of these two eye witnesses. From what has been stated by these two eye witnesses, it can be safely said that the accused went to the house of PW 2 Smt. Sakina, stayed there in the night and in the next morning he struck blows to her and her son Suwa (the deceased-victim) with the spade. Suwa died on account of the injuries inflicted to him by the accused. 18. It was next argued by Mr. Mathur that the prosecution is guilty of withholding the material witnesses. It was contended that Ghisa, Mangla and Kalu, whose names have been mentioned in the F.I.R. Ex. P. 5 as the persons who had seen the accused inflicting blows to the deceased-victim Suwa and Smt. Sakina, have not been examined by the prosecution. They were the independent persons and as such their non-production in evidence is fatal to the prosecution. Their non-production makes the entire prosecution story highly suspicious as against the accused. We have given our thoughtful consideration to the submission and find no force in it. The above three persons, as the F.I.R. Ex. P. 5 shows, are the close relatives of Smt Sakina. Though their names have been mentioned in the Calendar of the witnesses, the prosecution thought it proper not to examine them because it would be nothing but multiplying the evidence on the same facts. In case the accused thought that the evidence of these three persons would be helpful to him, he could have examined them in his defence. 19. The well settled position in law is that the prosecution is expected to examine those witnesses whose evidence is essential for unfolding the narrative on which the prosecution case is based. Producing all those persons in evidence, who were present on the spot, would be superfluous and nothing but multiplying the evidence on the same facts. 19. The well settled position in law is that the prosecution is expected to examine those witnesses whose evidence is essential for unfolding the narrative on which the prosecution case is based. Producing all those persons in evidence, who were present on the spot, would be superfluous and nothing but multiplying the evidence on the same facts. More over, once the eye witnesses examined by the prosecution are found reliable and dependable, the non-production of other witnesses is immaterial. Such non-examination, in no way, damages the prosecution case. We may quote the State of Rajasthan v. Surendra Singh and others (1986) 2 Judicial Surveyor 534 and Palsingh and others v. State of Uttar Pradesh (A.I.R. 1979 S.C. 1116) on the point. 20. It was next contended by Mr. Mathur that the F.I.R. Ex. P 5 was received in the Court on May 24, 1976 though the case was registered on May 22, 1976. This late receipt of the F.I.R. in the Court of the Magistrate shows that the police had sufficient time to fabricate the F. I. R. The contention holds no ground. The case was registered at about 8.00 p.m. on May 22, 1976 at Police Station, Raipur and the F.I.R. Ex.P 5 was received in the Court of the Magistrate at Jetaran on May 24, 1976. It was Sunday on May 23, 1976. As such, it cannot be said that there was any delay in dispatching the F.I.R. to the Magistrate. No other contention was raised before us. 21. The accused was also convicted under sections 323, 326 and 307, I.P.C. for causing injuries to PW 2 Smt. Sakina. When the accused was convicted under section 307, I.P.C., there was no sense and meaning in further convicting him under sections 323 and 326, I.P.C. Since the sentences have been directed to run concurrently, no prejudice has been caused to the accused. 22. For the reasons discussed above, we find no force in this appeal. The accused was rightly convicted and sentenced. No interference is called for.In the result, the appeal of accused Dula is dismissed.Appeal dismissed. *******