Judgment V. S. KOKJE, J. ( 1 ) NINE persons viz. (1) Mahesh Choudhary son of Veera Ram, (2) Ajit Singh son of Prabhu Ram Jat, (3) Rajesh son of Nemichand Choudhary, (4) Shyam Singh son of Nain Singh Rajput, (5) Rajendra Soni son of Umaida Ram Soni, (6) Bharat Bhusan son of Ram Bux Suthar, (7) Rajendra Ghanchi son of Girdhari Lal Ghanchi, (8) Kau Mal Sindhi son of Teu Mal Sindhi and (9) Dinesh alias Pappu Gujar son of Mohan Singh Gujar were prosecuted under Sections 147, 364, 330, 307 in the alternative 307/149, 342, 302 in the alternative 302/149 and 384 IPC for having caused the death of one deepak Agrawal and several injuries to one Rajesh Jodha. ( 2 ) ON trial, the learned Sessions Judge convicted and sentenced the Accused Person as follows : @@527. htm@@ ( 3 ) ACCUSED Mahesh and Ajit were further found guilty u/s 364 IPC in respect of Deepak Agrawal sentenced to undergo 5 years RI. Accused Mahesh was also found guilty u/s. 389 IPC and sentenced to undergo 1 year RI on that count. Accused Rajendra Ghanchi and Bharat Bhushan were acquitted of all charges. ( 4 ) AJIT Choudhary has preferred D. B. Criminal Appeal no. 280/90, Rajesh Choudhary and Kau Mal Sindhi have preferred D. B. Criminal Appeal No. 293/90, Rajendra Soni has preferred D. B. Criminal Appeal No. 308/90, Mahesh Choudhary has preferred D. B. Criminal Appeal No. 309/90. Shyam Singh has preferred D. B. Criminal Appeal No. 310/90, Pappu Gujar alias Dinesh Gujar has preferred D. B. Criminal appeal No. 327/90 against their convictions and sentences. Appellant Pappu alias Dinesh has absconded and hence his appeal was not heard along with other appeals. ( 5 ) THE State of Rajasthan has preferred D. B. Criminal Appeal No. 292/91 against the acquittal of accused Bharat Bhushan and Rajendra Ghanchi from all the charges and D. B. Criminal Appeal No. 337/90 enhancement of sentence of accused Mahesh Choudhary from the sentence of life imprisonment for offence under Section 302/149 to the sentence of death. ( 6 ) AS all these appeals arise out of one order, they were heard together and are being hereby decided by this common judgment. ( 7 ) THE prosecution story in short is that on May 26, 1986 at 9. ( 6 ) AS all these appeals arise out of one order, they were heard together and are being hereby decided by this common judgment. ( 7 ) THE prosecution story in short is that on May 26, 1986 at 9. 30 AM Kalyan Singh, Station House Officer, Police Station, Shastri Nagar received a Telephonic message that two boys were assaulted in K. K. Textiles one of whom had died and second was admitted in Mahatma Gandhi Hospital, Jodhpur. He therefore, went to Mahatma Gandhi Hospital, Jodhpur and took statement of the injured boy Rajesh son of Ugam Singh Jodha. Rajesh informed the SHO that on May 25,1986, Bharat Bhushan had come to his place and both of them had gone to Kohinoor Cinema for viewing Cinema show between 12. 00 to 3. 00 PM. As soon as the show was over in the compound of the Cinema Hall, Ajit Choudhary came to him and asked him to accompany him. When he came out, Mahesh Choudhary was standing with Motor Cycle and five six other persons were sitting in the autoriksa. Mahesh asked him to accompany him and forced him to sit on the Motor Cycle which was driven by Mahesh. Ajit Choudhary was the pillion rider and Rajesh was made to sit in between them. Bharat Bhushan sat in the taxi. Pappu and Shyam Singh also followed them on a white Bajaj Scooter. Bharat Bhusan, Rajesh, Kau Sindhi, Rajendra Soni and one more boy were in the taxi. Rajesh was taken to an akhada in D. S. Colony and there Ajit Choudhary, Mahesh Choudhary, Pappu Gujar, and Shyam Singh gave him a beating and asked as to where the stolen amount of Rs. 25,000/- were hidden. When he denied any knowledge about it. Shyam Singh stated that he should be taken to the K. K. Textiles for interrogation. They took him on the Motor Cycle towards Basni in the same manner in which he was brought to the D. S. Colony. He was taken to a room in the Basti area which Shyam Singh was calling the premises of K. K. Textiles. There Rajesh was beaten upto 8-9 PM. Then Mahesh Choudhary, Ajit Choudhary and Shyam Singh went away to bring Deepak Agrawal and brought him there after 12. 30 in the night. The accused persons were already drunk and they further consumed liquor there. There Rajesh was beaten upto 8-9 PM. Then Mahesh Choudhary, Ajit Choudhary and Shyam Singh went away to bring Deepak Agrawal and brought him there after 12. 30 in the night. The accused persons were already drunk and they further consumed liquor there. They prepared hunting whips out of electric wires and started beating Rajesh and Deepak alleging that they had committed theft and should show where the money was. Rajesh was forcibly made to confess in writing that he had committed theft. They continued to thrash with electric wire hunting whips Rajesh and Deepak till 2. 00 AM. Shyam Singh and Ajit were having knives with which they were threatening them. During the beating Deepak vomited and died. The accused persons continued to beat Rajesh but after some time panicked, left the dead body in the room and closed the door and put the latch on. Pappu, Rajesh Choudhary and Bharat Bhushan brought Rajesh in an auto riksha and left him on the Riktiya Bheru Crossing at about 6. 00 AM in the morning. All other accused persons ran away from there. Taxiwala left Rajesh at his house and he was brought to the hospital by the members of his family. ( 8 ) STATION House Officer, Kalyan Singh sent the information to the Police Station for registering the case which was registered under Section 364, 302 and 147 IPC and after coming to know that the scene of the occurrence fell under the jurisdiction of Police Station-Luni, the statement was forwarded to the Station House Officer, Luni. The SHO Luni registered a case in his Police Station on May 17, 1986 under Section 302, 364 and 147 IPC. Thereafter, SHO Kalyan Singh was authorized to investigate the matter. After investigation, the accused persons were prosecuted, tried and convicted as stated above. ( 9 ) THE prosecution has examined 22 witnesses in all out of them PW1 Rajesh Jodha is the injured eye witness, PW2 Ugam Singh is the father of Rajesh Jodha who had lodged a written report Ex. D/3 on receiving information about the crime from his son Rajesh Jodha, PW3 Bhajan Singh is the tenant of Rajesh Jodhas father in their house in Sardarpura. D/3 on receiving information about the crime from his son Rajesh Jodha, PW3 Bhajan Singh is the tenant of Rajesh Jodhas father in their house in Sardarpura. He had seen Rajesh Jodha returning home in an injured condition and Rajesh had narrated the story to him whereupon he went to inform Ugam Singh and brought him to the Sardarpura house where Rajesh had reached. PW4 Laxman Singh is the Taxi Driver who was said to have carried Dinesh alias Pappu in his Taxi on May 26, 1986, PW5 Satya Naraina was the other Taxi Driver who was said to have taken the accused persons first to D. S. Colony and then to the K. K. Textiles on the date of the incident. PW6 Som Singhal was said to have lent Scooter to Rajendra Ghanchi on the date of the incident and was said to have gone to the spot when the incident was taking place. Out of these PW3 Bhajan Singh, PW4 Laxman Singh, PW5 Satya Narain and PW6 Som Singhal did not support the prosecution story and were declared hostile. PW7 Pradeep Agrawal was the witness of the seizure of deceased Deepak Agrawals clothes, PW8 Kharta Ram was cited for proving that Mahesh Choudhary had asked him about the person who had committed theft as he had the blessings of the Goddess. He did not support the prosecution and was declared hostile. PW9 Pooran Singh Constable was the witness of transmitting the sealed packets from Police Station to the State Forensic Science Laboratory, Jaipur. PW10 Baldev Singh Photographer was declared hostile because he said that photograph were not taken by him but were taken by his employee. PW11 Ved Prakash had registered the First Information Report on the basis of Ex. P/1, the statement of Rajesh Jodha. PW12 Smt. Krashna Agrawal, mother of deceased Deepak Agrawal was examined for proving that Mahesh Choudhary had taken Deepak Agrawal on the night of the incident and he was last seen together with him. PW13 Mohan Singh Head Constable, PW14 Ashok Mathur, PW15 Om Prakash Constable, PW16 Brij Lal Head Constable, PW17 Ram Chandra, SHO Police Station - Luni, PW18 Bhanwar Lal, ASI who had received the written report Ex. PW13 Mohan Singh Head Constable, PW14 Ashok Mathur, PW15 Om Prakash Constable, PW16 Brij Lal Head Constable, PW17 Ram Chandra, SHO Police Station - Luni, PW18 Bhanwar Lal, ASI who had received the written report Ex. D/3 lodged by PW2 Ugam Singh and registered FIR Ex P/28, PW19 Laxmi Narayan, SHO, Sardarpura who had registered the crime on the basis of Ex D/3 and arrested the accused persons and seized the document said to be forcibly written by Rajesh Jodha at the instance of Mahesh Choudhary, PW20 Dr. B. P. Gupta who had medically examined Rajesh Jodha and conducted postmortem Examination on the body of Deepak Agrawal, PW21 Brij Mohan Bansal, Judicial Magistrate who had conducted the identification parade for identification of accused Rajendra Ghanchi and PW22 Kalyan Singh, SHO, Shastri Nagar who was the Investigating Officer were the other witnesses examined by the Prosecutor. ( 10 ) IN their statements under Section 313 of the Code of Criminal Procedure, all the accused persons denied the prosecution story. Appellant Ajit Singh denied that a knife was seized at his instance and stated that he was at his house on the date of the incident and he was implicated only because he used to frequent Mahesh Choudharis house. He also stated that Investigating officer Kalyan Singh had taken his finger prints on a bottle. Appellant Mahesh Choudhary denied having given any information on the basis of which the discovery of writing of Rajesh Jodha was made. He admitted that his Motor Cycle was seized by the Police. he also admitted that a theft had taken place in his house and thieves had taken away Rs. 25,000/- on May 23, 1986 and he had reported the matter to the Police Station Sardarpura. he stated that no effective action was taken on his report and therefore, he complained to the higher Officers and because of this Police had falsely implicated him. Appellant Rajendra Soni stated that on May 24, 1986 betrothal ceremony of his younger sister was fixed and many guests had come from outside and husband of his elder sister had arranged a dinner in this connection on May 25, 1986, in which he participated from 7. 00 PM to 10. 30 PM on that day. Appellant Kau Sindhi and Rajesh Choudhary denied the prosecution story and took a plea that they were falsely implicated. 00 PM to 10. 30 PM on that day. Appellant Kau Sindhi and Rajesh Choudhary denied the prosecution story and took a plea that they were falsely implicated. Appellant Shyam Singh denied recovery of knife on his information and took a plea that he has been falsely implicated. ( 11 ) THREE witnesses were produced as Defence witnesses by the appellants. DW1 Man Chand is the husband of the sister of accused Rajendra Soni who deposed that he had given a dinner on May 25, 1986 in which Rajendra Soni was present. He produced certain photographs in this respect. DW2 Om Prakash Soni is the Photographer who had taken photographs at that dinner. DW3 Laxmi Narain was the SHO, Sardarpura who proved Ex D/20, the challan produced in the Court by Hemant Kumar brother of Bharat Bhushan. ( 12 ) PW 1 Rajesh Jodha, the injured eye witness of the incident stated in his deposition before the Court that at 10. 30 to 11. 00 a. m. on May 25, 1986 Bharat Bhusan came to his house in Sardarpura where Rajesh resided with his paternal grandmother and invited him for going to a movie. Rajesh declined the invitation initially because he had some urgent work but Bharat Bhushan persuaded him to go to the movie and he went with him informing his grandmother. They went for the show screened between 12. 00 noon to 3. 00 p. m. After the show when they were coming down stairs, Ajit Choudhary caught him by his left hand and asked him to accompany him out as Mahesh Choudhary was calling him. When Rajesh refused to go Ajit asked him what was the harm in talking and that he would be made free within five minutes. Rajesh went out with Ajit. There, Mahesh Choudhary was sitting on a Motor Cycle and a faint yellow or white Scooter was parked nearby on which Shyam Singh and Pappu were sitting. There was also a taxi in which 5-6 persons including the Driver were sitting. These were Rajesh Choudhary, Rajendra Ghanchi, Rajendra Soni and Kau Sindhi. Rajesh asked Mahesh Choudhary as to what was the matter and he stated that he had to talk to him urgently for which Rajesh should accompany him and he will free him within 5-10 minues. There was also a taxi in which 5-6 persons including the Driver were sitting. These were Rajesh Choudhary, Rajendra Ghanchi, Rajendra Soni and Kau Sindhi. Rajesh asked Mahesh Choudhary as to what was the matter and he stated that he had to talk to him urgently for which Rajesh should accompany him and he will free him within 5-10 minues. Rajesh declined to go on which Mahesh caught him by the hand and forcibly made him to sit on the Motor Cycle in between Mahesh and Ajit Choudhary, Mahesh threatened Rajesh that if he raised an alarm he would be done away with. Rajesh therefore could not uttar a word, Mahesh started the Motor Cycle, Pappu and Shyam Singh followed them on the Scooter and Rajendra Soni, Rajendra Ghanchi, Rajesh Choudhary, Kau Sindhi and Bharat Bhusan followed them in a Taxi, Rajesh was taken to Pappu Gujars akhada in D. S. Colony. There, before Rajesh could ask the assailants any thing, suddenly 4-5 persons Mahesh Choudhary, Pappu Gujar, Shyam Singh, Ajit Choudhary and a person whose name was not known to Rajesh started beating him. The others were also standing there. He was given fist blows and kicks. Mahesh Choudhary alleged that Rajesh and his friends had committed the theft at his house. When Rajesh denied the allegation, they again started beating him. Rajesh then asked him as to who had told them Rajesh had committed the theft. On this Mahesh Choudhary continuing to beat him said that he had gone to a place of a Goddess and inquired from a Tantrik who had stated that 3-4 boys of his locality aged between 17 to 1 9 years with three letter names have committed the theft. Rajesh swore that he had not committed the theft but they continued beating him. Then Shyam Singh said that he would not confess like this and he should be taken to the K. K. Textiles. He was then taken to K. K. Textiles in the same manner in which he was brought to the D. S. Colony from Kohinoor Cinema. They reached a lonely area where there was a room. He was put in that room and Mahesh Choudhary came to the room and repeated that Rajesh had committed the theft and he should give back the money otherwise Mahesh and his friend would kill Rajesh. They reached a lonely area where there was a room. He was put in that room and Mahesh Choudhary came to the room and repeated that Rajesh had committed the theft and he should give back the money otherwise Mahesh and his friend would kill Rajesh. Rajesh again denied that he had committed the theft and expressed his inability to bring Rs. 25,000/ -. On this Mahesh gave a call to his friends. Then Pappu Gujar, Shyam Singh, Ajit Choudhary and Kaur Sindhi who were deadly drunk entered the room. Mahesh, Pappu and Ajit had hunting whips made of electric wires. Shyam Singh had a knife and Kau Sindhi had a bottle. Kau Sindhi broke the bottle and spread the glass on the floor. They started giving severe beating to Rajesh because of which be received injuries on all over the body and started bleeding. Kau Sindhi and Mahesh pricked his body at several places with the broken glass and started beating him and giving fist blows. Shyam Singh, Ajit Choudhary and Pappu thrashed him with the hunting whips because of which he fell down on the broken glass and received several injries and blood started oozing from his body. His clothes got torn. After they beat him like this for an hour or two Mahesh Choudhary asked his friends in the room to go out and told them to send the friends who were waiting outside. Then, Rajendra Soni, Rajesh Choudhary, Rajendra Ganchi and Bharat Bhushan entered the room. They were also drunk and they started beating Rajesh along with Mahesh Choudhary. Mahesh Choudhary was time and again asking where abouts of Rs. 25,000/ -. He was asking Rajesh to give back the money failing which he threatened to kill him. After sometime all of them assembled in the room and started beating Rajesh. They were also changing their weapons. After beating Rajesh for a considerable time, they took him out of the room. He fell down on the ground. There was darkness outside. It was about 8-9 P. M. They again asked him about the money and threatened to kill him if he did not give back the money. Rajesh was feeling thirsty. They were also changing their weapons. After beating Rajesh for a considerable time, they took him out of the room. He fell down on the ground. There was darkness outside. It was about 8-9 P. M. They again asked him about the money and threatened to kill him if he did not give back the money. Rajesh was feeling thirsty. When he asked for water, they offered liquor to him but when he requested them again and again for water and started weeping, they gave him some water and they got him undressed and threw him in a pit by the side. Pappu Gujar, Mahesh Choudhary, Shyam Singh and Ajit Choudhary also put off their clothes and started beating him in their undergarments. Others caught hold of him by hands and legs. After sometime those who were beating him caght hold of hands and legs and those who had caught hold of hands and legs started beating. After having beaten for a long time, Mahesh Choudhary asked him to disclose the names of his friends who were having the names containing three letters. Rajesh could not resist any one and he gave out the names of Deepak, Kailash and Shyam. Thereafter, they stopped beating him and he sat near them. Mahesh Choudhary and others went away from there and after some time they brought his friend Deepak. Rajesh had seen only Mahesh Choudhary amongst the persons who had brought Deepak. As soon as Deepak came, his clothes were also taken away from his body. He was also thrown in a pit nearby and then started beating him. All of them started taking drinks also and thereafter they beat Deepak with hunting whips, knife and bottles. Then they again took Rajssh and Deepak in the room and started beating them. Mahesh Choudhary threw liquor on the injuries on their body and put chillies also on them. Rajesh and Deepak then lied that they had committed the theft and the money was hidden in Gandhi Maidan. Mahesh took Rajesh to Gandhi Maidan on the Scooter and he was made to sit between Mahesh and Shyam Singh. After reaching Gandhi Maidan they asked him where the money was. Rajesh fell down and stated that the money was hidden nearby. Mahesh took Rajesh to Gandhi Maidan on the Scooter and he was made to sit between Mahesh and Shyam Singh. After reaching Gandhi Maidan they asked him where the money was. Rajesh fell down and stated that the money was hidden nearby. When they searched and did not find any thing Mahesh and Shyam Singh started saying that Rajesh was lying and he should be taken back to the same place. They then took him back to the K. K. Textiles. When they reached there, he saw that the other persons were beating Deepak. He was also taken again to the Room where Deepak was and all of them started beating Rajesh and Deepak. Mahesh again threw liquor on their injuries and they continued beating them. After sometime Deepak shouted for water but they continued to beat him. Then Deepak screamed loudly. Blood came out from his mouth and his head slumped on a side. Accused persons still continued to beat Rajesh and Deepak with glass bottles but Deepak was speechless. They then examined Deepaks breath and started saying that he was finished. Then they started beating Rajesh alone. Then he again lied and said that he had kept the money in the kitchen of his house. Then, Mahesh Choudhary got him to write on a paper confessing that he had committed theft of Rs. 25,000/ -. Then Mahesh Choudhary, Shyam Singh and Ajeet started for the house of Rajesh. Rajesh got terribly frightened after the death of Deepak and started shivering from cold. When Mahesh Choudhary, Shyam Singh and Ajit Choudhary did not return for a long time, Pappu Gujar, Bharat Bhushan and Rajesh Choudhary took him and put him in a Taxi and came to the Riktiya Bheru Crossing. His entire body was aching and he had injuries on all over the body. He fell in the Taxi. After sometime, he saw Pappu Gujar, Bharat Bhusan and Rajendra Choudhary running away. The Taxiwala asked him to go away to his home but he was not able to walk and requested Taxiwala to leave him at his Sardarpura house as he was afraid that accused persons would come back and kill him. The Taxiwala left him a street away from his house. He fell down and somehow reached his house where Bhajan Singh who was the tenant, lifted him and put him on a cot. The Taxiwala left him a street away from his house. He fell down and somehow reached his house where Bhajan Singh who was the tenant, lifted him and put him on a cot. He asked him as to how he was injured and he narrated the entire incident in the presence of other tenants Kailash Charan and Rajeshs sister Sushila. Sushila went away to call their grand father who had gone to the temple and Sardar Bhajan Singh went away and called father of Rajesh. Then Rajesh narrated the entire incident to his father. He was taken to the Mahatma Gandhi Hospital and he was admitted there. The Police took statement of Rajesh there. ( 13 ) IN his cross-examination on behalf of accused Bharat Bhusan nothing of consequence has come out and statement that he had gone with Bharat Bhshan to the cinema House has not been shaken. There are minor omissions and contradictions about what preceded there going to Cinema House. No specific questions to discredit his statement that Bharat Bhushan was not present on the spot during the incident were put and only a general suggestion that the witness had given false evidence relating to Bharat Bhushan was made to the witness. In the cross-examination on behalf of accused Mahesh Choudhary and Rajendra Soni, the witness deposed that he had no enmity with the accused persons. He admitted that when the show was over, there was a large crowed in the Cinema Hall premises. He also admitted that he did not raise any alarm. He further admitted that D. S. Colony was 3-4 KMS away from Cinema House. There were houses all around the place he was taken in the D. S. Colony. He further admitted that he did not raise any alarm or shout when he was assaulted there. He did not remember the number of Taxi and he did not remember the name of the Taxi Driver. He further stated that D. S. Colony to Basni was a distance of about 10-12 KMS. He also stated that he had told his father about the death of Deepak. The witness further admitted that there was no electricity in the room where he was taken in Basni. He did not see a window in the room. The witness denied that any one had come to meet him and Deepak when they were in Basni. He also stated that he had told his father about the death of Deepak. The witness further admitted that there was no electricity in the room where he was taken in Basni. He did not see a window in the room. The witness denied that any one had come to meet him and Deepak when they were in Basni. He did not know if the person by the name Som Singhal had come to the place. He further stated that the Police interrogated him for about a month and he could not say as to how many times during this one month, the Police took his statements. Then he was put questions on where and when hunting whips were prepared and as to how many whips were prepared. He was confronted with the statements recorded by the Investiating Officer. he denied having given certain portions of the statements to the Police. The witness also denied that he was asked to identify or he identified the hunting whips and also stated that there was nothing special for identification of the whips except they were covered by yellow rubber. In his further cross-examination he was asked about the omissions in his statement Ex. P/1 about some of the accused persons following him from D. S. Colony the witness gave an explanation that he was admitted in the Hospital, his condition was bad, his speech was affected and therefore he was not able to name all the persons time and again in the statements. He also stated that it took about three to four hours to record his statement and there were five to seven brakes in between in the recording of the statement. He also admitted that at the time the statement was recorded his father, his paternal grandmother and his mother were present and they were present there through out the recording of the statement and thereafter also. ( 14 ) HE further admitted that he was directly confronted with Rajendra Soni for the first time on the date of the incident. He identified Rajendra Soni in the photographs Ex. D/4 and Ex D/5. He categorically denied the suggestion that Rajendra Soni was not involved in the crime and was not present and had gone to attend the dinner given by his brother-in-law. He admitted that he did not know the name of Rajendra Sonis brother-in-law. He identified Rajendra Soni in the photographs Ex. D/4 and Ex D/5. He categorically denied the suggestion that Rajendra Soni was not involved in the crime and was not present and had gone to attend the dinner given by his brother-in-law. He admitted that he did not know the name of Rajendra Sonis brother-in-law. He also did not know as to how many brothers he has and what is the name of his father. The witness also admitted that no identification parade was held for identification of Rajendra Soni. ( 15 ) IN his cross-examination by the learned Counsel for the accused Pappu @ Dinesh Gujar, PW 1 Rajesh Jodha stuck to the version given by him earlier. He admitted that on the date of the incident he knew that Pappu Gujar had an akhara and that this fact he did not tell the Police when Ex. P/1 was recorded because he was not well and his condition was bad. The witness then stated that his first statement was recorded at 10. 00 - 11. 00 AM, second statement was recorded by the Superintendent of Police after the fall of dark, which was taken down by the Additional Superintendent of Police and Girdhari Lal, Deputy Superintendent of Police was standing nearby. There is a note in the statement to the effect that such a statement is not on record and therefore copy demanded by the learned counsel for the accused could not be supplied. The witness then stated that no further statement was recorded on that day and that no other statements were recorded except these two statements. Then the witness was confronted with the omissions of the name of Pappu Gujar as the owner of the akhara in his statement Ex D/2 recorded under Section 161 of the Code of Criminal Procedure. The witness further deposed that he had given in his statement the information as to how he was beaten and with what he was beaten but that was not recorded in his statement Ex. P/1. He also admitted that even beating by hand and fist is also not mentioned in Ex. P/1. He was also confronted with an omission in Ex. P/1 about four persons beating him second time in D. S. Colony. He however admitted that when he was twice assaulted in D. S. Colony, he had not received injuries on his body. P/1. He also admitted that even beating by hand and fist is also not mentioned in Ex. P/1. He was also confronted with an omission in Ex. P/1 about four persons beating him second time in D. S. Colony. He however admitted that when he was twice assaulted in D. S. Colony, he had not received injuries on his body. He also admitted that he did not know any of the residents of D. S. Colony except his friend Vineet Charls. He also admitted that because he had closed his eyes, he did not, know who followed them from D. S. Colony and through which road he was taken to the K. K. Textiles. The omission in his statements Ex. P/1, Ex. D/1 and Ex. D/2 about his being threatened was brought to his notice and he would not say why it was not so recorded. He was then confronted with the omission about his statement that on Mahesh Choudharys giving a call, Pappu Gujar, Shyam Singh and Kau Sindhi came in and the witness stated that whatever he had stated in the Court was correct and becase he was not well and his condition was bad, he could not give these things in his statements Ex. P/1, Ex. D/1 and Ex. D/2. When he was confronted with the omissions in Ex. P/1 about Mahesh Choudhary, Pappu Gujar and Ajit Choudhary having hunting whips, the witness could not give any reason for that. Then he admitted that there were only three hunting whips but in Ex. D/1 and Ex. D/2 there is a mention about all the accused persons beating him with hunting whips. He admitted that in Ex. D/1 and Ex. D/2 he has not stated that Mahesh Choudhary, Pappu Gujar and Ajit Choudhary were the only persons assaulting him with the hunting whips. Then he was further cross-examined on omissions in Ex. D/1, Ex. D/2 and Ex. P/1 of the details which he gave before the Court but which did not find place in the aforesaid documents. The witness answered that whatever he could remember at that time, he got recorded and he also gave an explanation that his condition was bad and many things might have been left out because he did not know what was necessary to be stated and what was not. Whatever he could remember, he told the Police. The witness answered that whatever he could remember at that time, he got recorded and he also gave an explanation that his condition was bad and many things might have been left out because he did not know what was necessary to be stated and what was not. Whatever he could remember, he told the Police. ( 16 ) THE witness in his further cross-examination admitted that Sardarpura Police Station was near Gandhi Maidan, he also admitted that he did not try to run away from Gandhi Maidan. In his further cross-examination by the learned counsel for the accused Pappu Gujar it was suggested to the witness that he had illicit relations with deceased Deepaks sister Pragati aged 10-12 years. he also denied that Deepak did not approve of his talking with Pragati. He also denied the suggestion that there was some quarrel between Deepak and himself and therefore he gave Deepaks name to the accused persons. He also denied the suggestion that Deepak was beaten by the witness himself and Som Singhal. He was then confronted with omission in Ex. P/1 about the witness having narrated the entire incident to Sardar Harbhajan Singh and his own parents. He denied the suggestion that he was a vagabond and therefore not living with his father. It was then suggested to him that he had become unconscious at 9. 00 PM and therefore had not seen anything thereafter. Then certain statements published in the news papers as his statements were confronted to the witness and he denied them. In his further cross-examination, he was confronted with the omissions in the statements Ex. P/1 and Ex. D/1 about the injuries on the back and the hand. The witness could not give any reason for that. He denied the suggestion that he was asked to stand in a particular inconvenient position (murga) during the assault and he denied the news items to that effect in the news papers with which he was confronted. He denied that Dr. Bina Bengani had asked him the names of his assailants and that he had replied that he did not know them. ( 17 ) IN his cross-examination on behalf of Rajesh Choudhary, Kau Sindhi, Rajendra Ghanchi and Shyam Singh, the witness further deposed that he had not raised an alarm when he was taken in the room because he was frightened. ( 17 ) IN his cross-examination on behalf of Rajesh Choudhary, Kau Sindhi, Rajendra Ghanchi and Shyam Singh, the witness further deposed that he had not raised an alarm when he was taken in the room because he was frightened. His fright had begin right from the time when he was made to sit on the Motor Cycle at the Cinema House. He admitted that he did not raise any alarm throughout the time he was taken from the Cinema House to D. S. Colony because he was frightened. He then deposed that accused persons who were sitting in the Taxi had also come to view the movie. From where they came he could not say. He admitted that he did not know Rajendra Ghanchi by name or by face till the date of the incident and for that reason he could not name him in his statement to the police. No indentification marks of Rajendra Ghanchi were also given in his statement to the Police or in the First Information Report Ex. P/1. He also stated that at the time of the identification parade, he has told the Magistrate that at the time of the incident a stone was kept on his head and he was made to stand like a murga and his neck was down, therefore, he could not see the accused persons. He was then pointed out the omissions in Ex. P/1, Ex. D/1 and Ex. D/2 about injuries caused by broken glass bottle by Kau Sindhi and about liquor and chillies being thrown by Mahesh Choudhary on the injuries. The witness stated that because his condition was bad, he could not incorporate these things in the aforesaid documents. he was then confronted with the omissions in Ex. P/1, Ex. D/1 and Ex. D/2 about the accused persons assaulting Deepak with knife and bottles. He stated that he might have forgotten. Then he said, he knew about these things but he could not give any reason as to why these things were not told to the Police. He admitted that he and Deepak were not assaulted with the knives and that there was no hinderance if they wanted to use the knives. Then he was confronted with the omissions in Ex. P/1, Ex. D/1 and Ex. He admitted that he and Deepak were not assaulted with the knives and that there was no hinderance if they wanted to use the knives. Then he was confronted with the omissions in Ex. P/1, Ex. D/1 and Ex. D/2 about his asking Mahesh Choudhary as to who told him that he had stolen the money and Mahesh Choudhary had replied that he had gone to the place of Goddess and enquired from the Tantrik and Tantrik told him that there were three - four boys from the locality between 17 to 19 years of age having three letter names. He also denied that he had given statement to the Police as recorded in Ex. D/1 and Ex. D/2 that he had given the name of his friend Deepak Agrawal falsely to save himself from further beating but he admitted that Deepak was brought there on the witness naming him. He then admitted that in D. S. Colony Bharat Bhushan, Kau Sindhi and Rajendra Soni had not assaulted him. Again certain omissions in Ex. P/1, Ex. D/1 and Ex. D/2 were pointed out to the witness and he did not give any reason for them. After putting the omissions in the statement in document Ex. D/1 and Ex. D/2, the witness was given a suggestion that Kau Sindhi was not present on the spot and he was falsely implicated, the witness denied the suggestion. ( 18 ) IN his further cross-examination, the witness further stated that he was assaulted for about 8 - 10 hours but he did not become unconscious. He had received multiple bruises and blue marks on his body. He denied that they had gone to bring Deepak at 9. 30 in the night. He stated that they had gone at 12-12. 30 mid night and had come back within 15-20 minutes. He denied knowledge when it was suggested that Rajendra Ghanchi was admitted in hospital on the date of the incident from the day earlier. In response to a question by the counsel for accused Rajesh Choudhary, he denied the suggestion that he was implicating Rajesh Choudhary falsely at the instance of Kalyan Singh, the Investigating Officer. The learned counsel for the accused Ajeet Choudhary suggested to the witness that when they had reached the ground at Basni, complete darkness had fallen and nothing was visible. The witness denied the suggestion. The learned counsel for the accused Ajeet Choudhary suggested to the witness that when they had reached the ground at Basni, complete darkness had fallen and nothing was visible. The witness denied the suggestion. However, he admitted that there was no source of light like electric bulbs there but it was not true that a person at a distance of 4-5 steps was not identifiable in that light. The witness also admitted that the night of the incident was a dark night. The witness admitted that he could not say as to who inflicted which injury on his body and on the body of Deepak. Then certain omissions in Ex. P/1, Ex. D/1 and Ex. D/2 were pointed out to the witness relating to the way in which he was accosted in the Cinema House and taken away. The witness again stated that what he had stated in the Court was correct and he could not give details in his statements to the Police because of a threat that he would be killed and because he was frightened. He denied the suggestion that accused Ajit Choudhary did not assault him. ( 19 ) THE next important statement is that of PW 12 Krishna Agrawal, the mother of Deepak in whose presence and knowledge Deepak was taken away by Mahesh Choudhary and another one more person. She deposed that at about 12. 00-12. 15 in the night on the date of the incident somebody called from street near the house when they were sleeping on the terrace. She came down, put on the lights and saw Mahesh Choudhary with one more person standing with a Motor Cycle. Mahesh Choudhary resided in the same locality 2-3 houses away from the house of the witness. Mahes Choudhary told her that he had some work with Deepak. He asked Deepak to accompany and said he would bring him back within a short time. Deepak changed his clothes and went with Mahesh Choudhary. Deepak was made to sit between the two persons and at that time Mahesh asked the other person calling him Ajit to get Deepak seated between them on the Motor Cycle. She waited for Deepak to return and at about 2. 00-2. 15 in the night, went to Mahesh Choudharys house and told Mahesh Choudharys mother that Mahesh had taken away Deepak. She waited for Deepak to return and at about 2. 00-2. 15 in the night, went to Mahesh Choudharys house and told Mahesh Choudharys mother that Mahesh had taken away Deepak. Mahesh Choudharys mother told her that Mahesh had not returned home. Then the witness returned home. About 6. 00-6. 30 in the morning there was an uproar in the locality that Rajesh Jodha had reached his home in an injured condition. Rajesh Jodha resided two houses away from the house of the witness. She went to his house and saw that his condition was serious. He was bleading from injuries all over the body. Paternal grandmother of Rajesh and his parents and sister Sushila and their tenants were also there. The witness enquired from Rajesh on which he said that he and Deepak were assaulted and badly beaten by Ajit and his colleagues. The witness immediately corrected herself and said Mahesh and his colleagues. He also informed that Deepak had died on the spot. The witness further deposed that Rajesh had given about the names of all the colleagues of Mahesh Choudhary. He gave the names of Ajit Choudhary, Shyam Singh, Pappu Gujar, Bharat Bhusan, Kau Sindhi, Rajesh Choudhary and Rajendra Soni as those who participated in the incident and he had also stated that there was one more person whose name he did not know. Then she returned home. At about 10. 00-10. 15 AM they went to the Police Station for lodging the report where they were told that the report had already been lodged and the Police was taking action. They told her to return home where they would bring the dead body of Deepak. On coming to know that the dead body had been taken to the Mahatma Gandhi Hospital, she went there but was not allowed to see the dead body. The witness identified correctly in the Court accused Mahesh Choudhary and Ajit Choudhary. On her cross-examination on behalf of the accused Mahesh Choudhary and Bharat Bhusan, she stated that her statements were recorded by the Police 2-3 days after the incident at her house. The omission in her case diarys statement Ex. The witness identified correctly in the Court accused Mahesh Choudhary and Ajit Choudhary. On her cross-examination on behalf of the accused Mahesh Choudhary and Bharat Bhusan, she stated that her statements were recorded by the Police 2-3 days after the incident at her house. The omission in her case diarys statement Ex. D/11 about the names of any one except Mahash Choudhary was pointed out to her and the witness said that she had given the names to the the Police and why they were not there in the statement, she could not say. She also stated that her going to Mahesh Choudharys place in the night was also told by her to the Police but she could not say why it was not there in Ex. D/11. She further deposed that the fact that Deepak was taken away in the night was told by her to her husband in the night itself after waiting for return for Deepak for sometime. She had not told it immediately to her husband because Mahesh Choudhary was her neighbour. She had told it to her husband after returning from the house of Mahesh Choudhary. She then stated that she had told this to her husband at about 4. 00-5. 00 AM she further deposed that she had asked Mahesh Choudhary as to what was the work for which he was taking away Deepak but he did not disclose and said there is a little work. She also admitted that Mahesh Choudhary had never come to her house but he used to pass byer the house earlier. The witness also stated that Rajesh Jodha had come one or two times earlier to her place before the incident. They used to play together being neighbours. ( 20 ) IN her cross-examination on behalf of accused Shyam Singh, Kau Sindhi, Rajendra Ghanchi and Rajesh Choudhary again omissions in her case diary statement Ex. D/11 were pointed out to her on the question of Rajesh Jodha having disclosed to her the names of all the colleagues of Mahesh Choudhary. She has stated that she had told the Police about this. The omission in Ex. D/11 about her putting on the light after getting down from terrace to open door for Mahesh. She again stated that she had told the Police about it. She has stated that she had told the Police about this. The omission in Ex. D/11 about her putting on the light after getting down from terrace to open door for Mahesh. She again stated that she had told the Police about it. She also stated that there were other source of light on the street apart from light in her own house. According to her these things were not found in Ex. D/11 because the Police did not ask about it. As regards the omission in her statement Ex. D/11 that she had heard about Rajesh Jodhas returning home in an injured state she stated that she had told the Police about it but they recorded in the statement only return of Rajesh Jodha. She further stated that Rajesh Jodhas injuries were clearly visible and she herself was not in a proper state of mind at that time. In her cross-examination on behalf of accused Ajit Choudhary, omission in her statement ex. D/11 about Mahesh Choudhary starting the Motor Cycle and asking Ajit to get Deepak in between them. She again stated that she had told the Police but it was not incorporated by them. She insisted that these two persons had come to her place and Mahesh had started Motor Cycle and asked Ajeet to get Deepak in between them. ( 21 ) THE other witnesses worth discussing are PW 2 Ugam Singh, father of Rajesh Jodha, PW 22 Kalyan Singh, Investigating Officer and the medical evdence in the case. ( 22 ) PW 2 Ugam Singh had lodge a written report on the basis of what Rajesh had told him after returning home as also on the basis of the visit of Mahesh Choudhary at their house in High Court Colony. He deposed that at about 5. 00 AM somebody gave a call to him from outside his residence in High Court Colony when he was sleeping. His wife and children were also sleeping and his elder son and his wife were sleeping on the terrace. Because of the call, he awoke and came out and saw that Mahesh Choudhary, Ajit Choudhary and Shyam Singh were there. He called Mahesh Choudhary inside the house and asked him the reason for his coming. His wife and children were also sleeping and his elder son and his wife were sleeping on the terrace. Because of the call, he awoke and came out and saw that Mahesh Choudhary, Ajit Choudhary and Shyam Singh were there. He called Mahesh Choudhary inside the house and asked him the reason for his coming. Mahesh told him that Rajesh was with him and had confessed that he had stolen twenty five thousand rupees and had said that money was hidden in the kitchen of the house. Thereupon PW 2 Ugam Singh took them to the kitchen and let them inspect the kitchen. The wife of the witness had also awaken. Then he asked Mahesh Choudhary about Rajesh whereupon Mahesh Choudhary asked him to accompany him. The witness told him to go ahead to his house at Sardarpura and witness would follow on a bycycle. On this Mahesh Choudhary said that Rajesh was in his custody at Basni. Then the witness told him that he would hire a taxi and come. However, the wife of the witness advised him not to go with them and the witness called his elder son. At this juncture a taxi on which words kunwar Shakti were painted came and a person got down from it who was identified by Devendra as Pappu @ Dinesh Gujar. He took Mahesh Choudhary by the side and told him some thing on which Mahesh Choudhary said that he was coming back with Rajesh and the witness should wait for him at his residence. The witness waited for sometime. At aobut 7. 00 AM Sardar Bhajan Singh his tenant in Sardarpura house came and told that the mother of the witness had called him immediately to Sardarpura house because Rajesh had come there and he had been badly assaulted by Mahesh Choudhary and others and he was in bad condition. Thereupon the witness with his son Devendra and wife Sushila went to their Sardarpura House where they found Rajesh lying on the cot. He asked Rajesh to be at ease and narrate the incident to him. Then Rajesh narrated the whole incident to him, at about 7. 00 AM. ( 23 ) IN his cross-examination on behalf of accused Mahesh Choudhary, Rajendra Soni and Bharat Bhushan, the witness was confronted with certain omissions in Ex. D/3, the written report lodged by him to the Police. Then Rajesh narrated the whole incident to him, at about 7. 00 AM. ( 23 ) IN his cross-examination on behalf of accused Mahesh Choudhary, Rajendra Soni and Bharat Bhushan, the witness was confronted with certain omissions in Ex. D/3, the written report lodged by him to the Police. The witness also stated that he did not believe that accused Mahesh Choudhary would do such a thing to his son and therefore he did not report about abduction of his son to the Police between 5 AM ato 7 AM. The witness also did not send information to his Sardarpura House because Mahesh had promised to him to bring his son back. About omission in this regard in Ex. D/3, the witness stated that he was in hurry to go to the hospital and therefore he could not incorporate this in the report. The witness also deposed that Rajesh had told the parents of Deepak about the death of Deepak in his presence when the entire locality had collected at his house in Sardarpura on arrival of his son Rajesh. Then questions were asked about whether Rajesh had taken his permission or informed him about his going to Cinema with Bharat Bhushan. The witness was also asked about the omission in Ex. D/3 about Rajesh going to Cinema with Bharat Bhushan. In his cross-examination he was confronted with Ex. D/3 and his case diary statement Ex. D/9 and Ex. D/10 and the witness admitted that in his statement it was incorrectly written that all the people had come to bring Deepak. In his further cross-examination also several omissions and contradictions with Ex. D/3 Ex. D/9 and Ex. D/10 were pointed out to the witness. The witness admitted that there was a omission in Ex. D/3 about Mahesh telling him that Rajesh had confessed that he committed theft but in Ex. D/9 and Ex. D/10 this fact was there. He gave reason for the omission to be his being in hurry because his son was serious. In the cross-examination by counsel for the other accused persons also many contradictions and omissions were pointed out and the witness gave a general explanation. ( 24 ) PW 22 Kalyan Singh was the Investigating Officer. He narrated the entire action taken by him as an Investigating Officer. In the cross-examination by counsel for the other accused persons also many contradictions and omissions were pointed out and the witness gave a general explanation. ( 24 ) PW 22 Kalyan Singh was the Investigating Officer. He narrated the entire action taken by him as an Investigating Officer. In his cross-examination on behalf of accused Bharat Bhushan he deposed that no recovery was made from Bharat Bhushan and in the Investigation it was found that Bharat Bhushan had not accompanied the other accused persons to Kohinoor Cinema. He also could not say whether Bharat Bhusan had previous acquentence with the co-accused or not. He did not investigate on the point. On cross-examination by the learned counsel for the accused Kau Sindhi Rajendra Ghanchi, Shyam Singh, and Rajesh Choudhary, the witness admitted that in First Information Report and statements under Section 161 of the Code of Criminal Procedure of Rajesh Jodha, Rajendra Ghanchi was not named. Rajesh Jodha had said that he could not identify one person. However in First Information Report Ex. P/1 and in statement of Rajesh Jodha no description of identification of the person was given. The witness further stated that Rajendra Ghanchi was not produced before the Magistrate immediately after the arrest for identification but he was kept under veil (Baparda ). He denied the suggestion that Rajendra Ghanchi was shown to Rajesh Jodha on the Police Station. The witness admitted that he had gone to D. S. Colony house but no memoranda were made for that visit or spot inspection. He was asked several questions about the memoranda prepared in the case and the action taken during the investigation. ( 25 ) THE other evidence in the case consists of medical experts and of memoranda prepared during the investigation. ( 26 ) IT was contended on behalf of the appellants and acquitted respondents that Ex. P/1 which was the statement given to the Police by Rajesh Jodha in Mahatma Gandhi Hospital, Jodhpur cannot be taken to be a First Information Report in the case because the report Ex. D/3 was already lodged by his father PW 2 Ugam Singh in Police Station, Sardarpura and crime had already registered. It was therefore contended that Ex. P/1 which was the statement given to the Police by Rajesh Jodha in Mahatma Gandhi Hospital, Jodhpur cannot be taken to be a First Information Report in the case because the report Ex. D/3 was already lodged by his father PW 2 Ugam Singh in Police Station, Sardarpura and crime had already registered. It was therefore contended that Ex. P/1 cold not be a statement recorded under Section 161 of the Code of Criminal Procedure and therefore cannot be used for corroboration of the statement given by PW 1 Rajesh Jodha in the Court. It was also contended that the First Information Report which was registered on the basis of Ex. P/1 in Police Station, Shashtri Nagar, Jodhpur was also not remitted to the concerned Magistrate immediately but was sent on the next day and therefore, the prosecution version becomes doubtful. It was further contended that evidence of PW 1 Rajesh Jodha is a sole eye-witness account of the incident and because of several omissions and contradictions, his testimony is not of sterling quality and could not have been made the sole basis of conviction. It was further contended that the conduct of PW 1 Rajesh Jodha during and after the incident was not such which could be explicitly relied upon. He has admitted to have raised no alarm when he was taken away from a crowded place like Cinema Hall openly on the Motor Cycle to a house in an inhabited locality and from there he is said to have forcibly taken to a long distance openly on a Motor Cycle. ( 27 ) IT was also contended that if PW 1 Rajesh Jodha was so frightened as not to raise an alarm, he could not have also been in a position to note as to who were the persons following on the Scooter and in a taxi and who amongst the accused persons were sitting where. It was also contended that Rajesh Jodha is supposed to have narrated the incident to his father on the basis of which the father lodged the report. It was not possible that an important fact as to the death of Deepak Agrawal would not find place in that report, and it was contended that omission of the fact of death of Deepak Agrawal in Ex. It was not possible that an important fact as to the death of Deepak Agrawal would not find place in that report, and it was contended that omission of the fact of death of Deepak Agrawal in Ex. D/3 the report lodged by the father of Rajesh Jodha casts a serious doubt on Rajesh Jodha being an eye-witness of Deepak Agrawals death. It was further contended that the account given by Rajesh Jodha does not tally with the medical evidence in the case and the injuries on his body and on the dead body of Deepak Agrawal do not corroborate the statement as to the manner in which they were alleged to be assaulted. It was also contended that PW 2 Ugam Singh, father of Rajesh Jodha is also not a reliable witness. He could not explain several omissions and contradictions in his statement before the Court and Ex. D/3 the report lodged by him and Ex. D/9 his statement to the Police. It was contended that there were definite improvements in the statement of PW 2 Ugam Singh in the Court. It was contended that when his son was abducted by Mahesh Choudhary and his colleagues, he did nothing and acted only after Rajesh Jodha returned home after two hours. It was contended that the normal conduct would have been to report to the Police immediately. ( 28 ) AS regards the testimony of Smt. Krishna Agrawal, it was pointed out that her statement was recorded by the Police under Section 161 of the Code of Criminal Procedure on June 29, 1986. No explanation has ben given for the delay. Her testimony was also criticised on the ground of omissions, contradictions and improvements. She deposed in the Court that Ajit had also come with Mahesh but that fact is not found in her statement with the Police. It was further contended that there was no previous enmity between the parties and the medical evidence was that the injuries could not have caused death in normal course and all the injuries were on non-vital parts and were of superficial nature. Intention to cause death could not have been inferred from these injureis. It was also contended that no inference of common intention or object to cause death could be drawn from the circmstances of the case nor of formation of unlawful assembly. Intention to cause death could not have been inferred from these injureis. It was also contended that no inference of common intention or object to cause death could be drawn from the circmstances of the case nor of formation of unlawful assembly. ( 29 ) ON behalf of Rajendra Soni, it was further contended that presence of all the accused persons throughout right from begining to the end of the incident has not been proved beyond doubt. The possibility that some of them have not taken part in the assault and some of them were not even present has not been ruled out. The possibility of Rajendra Soni leaving before Deepak was brought on the scene can also not been ruled out as no specific part has been alleged to him in the incident. According to the learned counsel many of the accused present could be mere spectators witnessing the recovery of stolen amount of Rs. 25,000/- by Mahesh Choudhary. If they were present, many of them might have been present only because of curiosity and as passive spectators. It was further contended that no common object to commit a crime, muchless common object of causing death can be inferred from the material on record against Rajendra Soni and other accused persons who have not been alleged to have taken specific part in the assault. ( 30 ) THE learned counsel relied on a Division Bench decision of this Court in Dungar Singh v. State of Rajasthan (1990) 1 Raj LW 196. This was a case where one of the victims had 18 injuries and the deceased victim had 53 injuries on the body. Even then no injuries were found to be inflicted on vital parts of the body and it had not come out as to who inflicted the fatal blows. The case therefore, was taken to fall under Section 304, Part II read with Section 149, IPC. ( 31 ) ANOTHER Division Bench decision of this Court in Choutha Ram v. State of Rajasthan, 1994 Cri LR (Raj) 604, was also cited pointing out that that was a case of 72 injuries caused by lathis and the medical opinion was they were likely to cause death. In such circumstances, this Court set aside the conviction under Section 302/34 and substituted it by conviction under Section 304, Part II read with Section 34, IPC. In such circumstances, this Court set aside the conviction under Section 302/34 and substituted it by conviction under Section 304, Part II read with Section 34, IPC. ( 32 ) THE next case cited was a decision of the Supreme Court in Subran alias Subramanian v. State of Kerala, 1993 SCC (Cri) 583 : (1993 Cri LJ 1387 ). In that case injuries were inflicted by torches, knife, iron rod, cycle chain etc. on non-vital parts of the body of the deceased. The multiple injuries caused by four persons were found to be cumulatively sufficient to cause deatth. In such circumstances common intention to cause death was not found to be established and the accused was found liable for committing culpable homicide not amounting to murder. The Supreme Court having regard to the type of weapons used and the nature of injuries held that the accused persons could not have been said to have shared common object and therefore the accused were held to be liable for their individual acts. ( 33 ) IN a review of this judgment, Paragraph 11 was substituted to remove possible misunderstanding and misconception. This review judgment is printed in the same volume in Subran v. State of Kerala, 1993 SCC (Cri) 989. ( 34 ) A decision of the Supreme Court in Mulkuri Damodara Reddy v. State of Andhra Pradesh, 1987 SCC (Cri) 170, was also cited but the conviction in that case was under Section 304, Part II, IPC and that was reduced by the Supreme Court from four years to three years. ( 35 ) THE next case cited was decision of the Supreme Court in Dalip Singh v. State of Haryana, AIR 1993 SC 2119 : (1993 Cri LJ 2092 ). It was a case of a custodial death where policeman including two Sub-Inspectors of Police used third degree methods against the accused persons. It was held that they were sharing common intention to beat deceased voilently and threfore they must be attributed only the inflicted injuries which were likely to cause death. The case thus fell under Part II of Section 304 and not under Part 1 of Section 304, IPC. It was not a case where conviction under Section 302 was altered to that under Section 304, IPC. The case thus fell under Part II of Section 304 and not under Part 1 of Section 304, IPC. It was not a case where conviction under Section 302 was altered to that under Section 304, IPC. ( 36 ) THE next case cited was the decision of the Supreme Court in Kirti Mahto v. State of Bihar, 1994 Supp (2) SCC 569. In that case no internal organ of the deceased was damaged nor was there any fracture. The injuries were caused on non-vital parts of the body with garasa, barchha and lathi. The possibility of deceased dying due to lack of medical attention. In such circumstances, it was held that common object of unlawful assembly to commit murder cannot be inferred. The conviction on charge under Section 302/149, IPC was altered to that under Section 304, Part II read with 149, IPC. ( 37 ) IN reply to the arguments on behalf of the evidence, the learned Special Public Prosecutor arguing the case of the State in appeal against acquittal and for enhancement of sentence submitted that report Ex. P/73, the report of theft given by Mahesh Choudhary is an important corroborative piece of evidence. It was conttended that the basic fact that Mahesh Choudhary had lost Rs. 25,00/- and he was in search of the culprits is proved by this report. There is therfore, foundation for the evidence led by the prosecution about his abducting Rajesh Jodha and Deepak and trying to recover the amount from them in the belief that they had committed the theft. The evidence of prosecution witness Rajesh Jodha that he was told by Mahesh Choudhary that he had gone to a temple of the Goddess and consulted a Tantrik and he had told him that the theft was committed by the boys from the locality aged between 17 to 19 with the names containing three letters cannot be said to be a cock and bull story. The learned counsel referred to several pieces of evidence in the case including the memoranda prepared during the investigation, photographs, injuries and postmortem report etc. The learned counsel referred to several pieces of evidence in the case including the memoranda prepared during the investigation, photographs, injuries and postmortem report etc. ( 38 ) THE learned Special Public Prosecutor cited a decision of the Supreme Court in Jagdeo Singh v. State of Maharashtra, 1981 SCC (Cri) 267 : (1981 Cri LJ 166) to point out that the testimony of a sole injured witness corroborated by his own statement made soon after he regain consciousness after the event can be basis for conviction for murder even though is first statement was brief and to the point. ( 39 ) ANOTHER decision of the Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat, 1983 SCC (Cri) 379 : (1983 Cri LJ 822), was cited to point out that when there is a conflict in the eye-witnesses account and the medical testimony, the eye-witnesses would be prefered to the medical evidence unless the medical evidence completely rules out the eye-witnesses version. ( 40 ) THE decision of the Supreme Court in State of Gujarat v. Naginbhai Dhulabhai Patel, 1983 SCC (Cri) 590 : (1983 Cri LJ 1112), was cited for the proposition that in case of an injured witness, the mere fact that he did not make a particular statement before the Police but made it before the Court would not justify discrediting his testimony specially when he was an injujred witness whose presence at the scene and time of occurrence was beyond doubt. In this very decision it was observed that the mere fact that the witnesses were relations and interested would not by itself be sufficient to discard their evidence straightway ulless their evidence suffers from serious infirmities which raises considerable doubt in the mind of the Court. ( 41 ) THE next case cited was Appabhai v. State of Gujarat, 1988 SCC (Cri) 559 : (1988 Cri LJ 848), and it was pointed out that a witness who was seriously injured in the incident should be taken to be very reliable and the Court should not give undue importance to minor discrepancies in the testimony of the witness. ( 42 ) THE decision of the Supreme Court in State of Andhra Pradesh v. Rayavarapu Punnayya, AIR 1977 SC 45 : (1977 Cri LJ 1), was cited for pointing out the distinction between murder and culpable homicide not amounting to murder. ( 42 ) THE decision of the Supreme Court in State of Andhra Pradesh v. Rayavarapu Punnayya, AIR 1977 SC 45 : (1977 Cri LJ 1), was cited for pointing out the distinction between murder and culpable homicide not amounting to murder. ( 43 ) THE decision of the Supreme Court in Rajwant Singh v. State of Kerala, AIR 1966 SC 1874 : (1966 Cri LJ 1509) as also the decision of the Supreme Court in Anda v. State of Rajasthan, AIR 1966 SC 148 : (1966 Cri LJ 171) were cited for the proposition that when several persons intentionally caused bodily injuries suffiicient in the ordinary course for death, all persons are guilty of murder under Clause thirdly of S. 300 read with S. 34, IPC. ( 44 ) THE learned Public Prosecutor, in appeal against acquittal and the appeal for enhancement of sentence submitted that the acquitted accused persons had absconded and this conduct should have gone against them. It ws also contended that there was ample evidence against the acquitted accused persons and there was no reason why they should not have been convicted. It was further contended that looking to the natute of the crime, the appeal of the State for enhancement of sentence of Mahesh Choudhary should be accepted and he should be sentenced to death. ( 45 ) AS regards the criticism that Rajendra Ganchi was not kept baparda, the learned Public Prosecutor cited decsion of the Supreme Court in Ramanathan v. State of Tamil Nadu, 1978 SCC (Cri) 341 : (1978 Cri LJ 1137), in which it has been held that evidence regarding the test indentification could not be rejected because the prosecution could not lead evidence to show that accused had been kept ba parda. It was for the accused to show by cross-examination or by his own witness that he was seen by the identifying witness before the parade. In this case there was also observation to the effect that when there is enough evidence to show that the accused absconded after the occurrence, it would be proper to take into account the absconding of the accused for convicting him. ( 46 ) LET us now examine the case in light of the state of evidence and law narrated above. ( 47 ) ON May 26, 1986 at 9. ( 46 ) LET us now examine the case in light of the state of evidence and law narrated above. ( 47 ) ON May 26, 1986 at 9. 30 AM a telephonic information was received by the Investigating Officer PW 22 Kalyan Singh to the effect that two boys were assaulted in the premises of K. K. Textiles out of which one had died and the other was admitted in Mahatma Gandhi Hospital. He recorded the information in the daily diary, went to the Hospital, took the statement Ex. P/1 of Rajesh Jodha and sent it to the police Station for registering the crime. After arranging for the medical examination of Rajesh Jodha, he went to K. K. Textiles for recovery of the dead body. He prepared the memoranda there, seized certain articles, wearing apparels, hunting whips, a broken lock, a broken bottle of liquor carrying blood marks, glass particles and a country liquor bottle. Then the dead body was carried to the Hospital for postmortem examination. As by that time dusk had fallen, the postmortem examination could not take place on that day. A search was made for the accused persons at their residences but they were not found there. A Sub Inspector was sent to Village-Der in Police Station - Khinvsar, District - Nagour Chasing Mahesh, Dinesh alias Pappu and Ajit Singh. These three were brought by Sub Inspector Narendra Singh to the Investigating Officer, Kalyan Singh (PW22 ). They were arrested vide memoranda Ex. P/58, Ex. P/59 and Ex. P/60 respectively. On May 27, 1986 Mahesh Choudhary gave an information about Motor Cycle which was then recovered at his instance. Search for other accused persons was conducted but they were not available at their residences or at the residence of their relatives. Kau Sindhi and Shyam Singh were arrested on May 29, 1986 vide Ex. P/63 and Ex. P/64 respectively. Rajesh Choudhary was arrested on May 30, 1986 vide memoranda Ex. P/64. Other accused persons were still absconding. On June 4, 1986 Rajendra Soni was arrested vide memoranda Ex. P/65. On the same day Rajendra Ghanchi was arrested vide Ex. P/66. On June 25, 1986 accused Bharat Bhushan was arrested vide Ex. P/67. It is therefore, clear that the accused persons were not found at the place of their normal residence and had to be arrested after finding them out after considerable time. P/65. On the same day Rajendra Ghanchi was arrested vide Ex. P/66. On June 25, 1986 accused Bharat Bhushan was arrested vide Ex. P/67. It is therefore, clear that the accused persons were not found at the place of their normal residence and had to be arrested after finding them out after considerable time. This is a clear indication of absconding which can be used as a circumstance against the accused person. ( 48 ) THE main evidence against the accused persons as we have seen is that of PW1 Rajesh Jodha, an injured eye witness. He was the only person who was present throughout the incident and except the talk which Mahesh Choudhary had with PW2 Ugam Singh and PW12 Smt. Krishna Agrawal, he was the direct witness of the entire incident. His testimony has been criticized on the basis of omissions and contradictions between the statement given by him in the Court and the statement given by him to the Police as also the oral information given by him to his father Ugam Singh on the basis of which Ugam Singh filed First Information Report Ex. D/3. As has been seen, the omissions and contradictions are not on the basic features of the incident. Most of the omissions are that of details and not of substance. Omissions and contradictions as to what transpired between him and Bharat Bhusan before they went to the movie, whether the witness took permission from his father, whether he had gone for shopping with his father are not of much importance. The fact that Bharat Bhushan and Rajesh Jodha had gone to the Kohinoor Cinema Hall and viewed the movie between 12 noon and 3. 00 PM on May 25, 1986, has been amply proved. The statement of Rajesh Jodha that after the show was over, Ajit Choudhary came to him, caught him by his hand and told him that Mahesh was calling him outside has also remained intact. His statement that Mahesh Choudhary was standing with his Motor Cycle outside the Kohinoor Cinema and he had a talk with him and asked him to accompany and Mahesh and Ajit took him on the Motor Cycle sandwiched between them has also been proved beyond reasonable doubt. His statement that Mahesh Choudhary was standing with his Motor Cycle outside the Kohinoor Cinema and he had a talk with him and asked him to accompany and Mahesh and Ajit took him on the Motor Cycle sandwiched between them has also been proved beyond reasonable doubt. The presence of Rajesh Choudhary, Kau Singh, Shyam Singh, Rajendra Soni outside the Kohinoor Cinema Hall is noted in the report lodged by Ugam Singh as well as in Ex. P/1, the first statement of Rajesh Jodha recorded by the Investigating Officer Kalyan Singh. It can therefore be safely taken as proved that all the accused appellants were present at the Kohinoor Cinema Hall when Rajesh Jodha was taken away from there. ( 49 ) RAJESH Jodha has deposed that he was taken from there to D. S. Colony. In Ex. D/3, the report lodged by father of PW1 Rajesh Jodha, it has not been stated that who out of the accused persons took Rajesh Jodha on the Motor Cycle. Thus Mahesh Choudhary and Ajit Choudhary took Rajesh on the Motor Cycle sandwiched between them is not mentioned. Any body following on the Scooter is also not mentioned in Ex. D/3 and it has been mentioned that all other accused persons followed in a taxi. In Ex. P/1, the details of the incident were given and it was stated that Mahesh Choudhary and Ajit Choudhary took Rajesh sandwiched between them and Bharat Bhushan, Rajesh Choudhary, Kau Sindhi, Rajendra Soni and one unidentified person were in the taxi and Pappu Gujar alias Dinesh and Shyam Singh were on a white Bajaj Scooter. In Ex. D/3, akhara in the D. S. Colony is not mentioned but D. S. Colony was mentioned. In Ex. D/3, names of persons who assaulted Rajesh Jodha in the house at D. S. Colony were not given and it was stated generally that he was beaten and asked to disclose the stolen money. In Ex. P/1, names of Ajit Choudhary, Mahesh Choudhary, Pappu alias Dinesh Gujar, and Shyam Singh were specifically taken as the persons who give a thrashing to Rajesh Jodha and asked him about the stolen money. In Ex. D/3, it is mentioned that Rajesh Jodha was taken from D. S. Colony for a lonely room in Basni and beaten inhumanly with electric wire hunting whips. In Ex. In Ex. D/3, it is mentioned that Rajesh Jodha was taken from D. S. Colony for a lonely room in Basni and beaten inhumanly with electric wire hunting whips. In Ex. P/1, it was stated that after the assault in D. S. Colony, Shyam Singh stated that Rajesh should be taken to K. K. Textiles for interrogation, the details of about how Rajesh was taken from D. S. Colony to Basni were not given in Ex. D/3 but in Ex. P/1 it is stated that he was taken on a Motor Cycle driven by Mahesh Choudhary and Ajit was the other person who sat behind him on the Motor Cycle. ( 50 ) IN Ex. D/3, the details of the assault in Basni are not there but in Ex. P/1 it is stated that all of them continued beating him up to 8-9 Oclock. In Ex. D/3, it is stated that in the night they brought Deepak Agrawal on the spot and assaulted him also but in Ex. P/1 it is stated that Mahesh Choudhary, Ajit Choudhary and Shyam Singh went for bringing Deepak and brought him by 12. 30 AM. In Ex. D/3 it is mentioned that at about 2. 00 AM Rajesh was taken by Mahesh and two others at Gandhi Maidan for discovery of money and Rajesh told him that he had spoken a falsehood because of fear. In Ex. P/1, there is no mention of Rajesh Jodha being taken to Gandhi Maidan. The portion of Ex. D/3 about Mahesh Choudhary going to Rajeshs father Ugam Singh were not of the knowledge of Rajesh Jodha and he was not supposed to have deposed about what transpired in his absence. In Ex. D/3 Ugam Singh, father of Rajesh, had stated that Rajesh had narrated the incident to him. In Ex. P/1, it is not mentioned that Rajesh narrated the incident to his father Ugam Singh. ( 51 ) THUS it will be seen that omissions pointed out in Ex. D/3 are matters of details and not of substance. There was no reason why Rajesh Jodha or the father would try to falsely implicate the accused persons because there was no enmity between the parties and the only dispute was that the accused persons entertained a doubt that Rajesh had stolen the money from Mahesh Choudharys house. D/3 are matters of details and not of substance. There was no reason why Rajesh Jodha or the father would try to falsely implicate the accused persons because there was no enmity between the parties and the only dispute was that the accused persons entertained a doubt that Rajesh had stolen the money from Mahesh Choudharys house. Even this fact that the accused persons entertained a suspicion that Rajesh had committed theft was not known to Rajesh or his father till the Cinema Show was over. Therefore, there was no reason for Rajesh Jodha or his father to falsely implicate them or for naming innocent persons as culprits. ( 52 ) AS regards the omission and contradictions pointed out between the versions given by Rajesh in the Court and in Ex. P/1, it should be borne in mind that Rajesh was a young boy of about 17 years who was badly beaten throughout the night and who had obviously not slept throughout the night and had seen his friend Deepak dying. In this state of mind we cannot expect a young boy to make a detailed and absolutely coherent statement immediately to his father or to S. H. O. Kalyan Singh. He has not contradicted himself on basic and substantial facts. Whatever minor omissions have been pointed out they are all matters of details. He has not resiled from or shaken in his statement about the accused persons and the role each of them took in the assault. All the accused except Rajendra Ghanchi were known to him and were named by him right from the beginning. Right from the beginning, he had also stated that there was one person with the accused who was not known to him. ( 53 ) MUCH was attempted to be made within the statement of PW1 that he had told the Magistrate at the time of identification parade that a stone was kept on his head during the incident and he was asked to stand in a particular position (murga) and his head was lowered and therefore he could not see the accused. There was no occasion for Rajesh Jodha to have stated to Magistrate about the incident and there is nothing in Ex. P/2 to show that such a thing was stated to the Magistrate. There was no occasion for Rajesh Jodha to have stated to Magistrate about the incident and there is nothing in Ex. P/2 to show that such a thing was stated to the Magistrate. ( 54 ) IT is noteworthy that PW 21 the Judicial Magistrate who conducted the identification parade was asked no question about this and the witness at the time of that particular statement appear to be so confused as not to understand the questions clearly. He admitted that he had gone to Jail premises for identification but did not know the date or as to how many days after the incident he had gone there. He categorically stated that after arresting Rajendra Ghanchi, he was shown to him. He then stated that he did not remember whether he had signed any papers before the Magistrate and on this the Court pointed out to him that in his statement of October 16, 1987, he had identified his signatures on the memoranda of identification and asked him to make a categorical statement as to whether statement was given by him earlier or the statement that he did not remember, which one of them was true and the witness replied that his earlier statement identifying his signatures was correct and he said that he had said he did not remember because he could not understand the question. Immediately after this Ex. P/2 was put to him and out of context he seems to have been asked about his talk with the Magistrate. The statement therefore cannot be given much importance. Moreover, it was not the version of the witness that he was made to stand in a particular position (murga) with a stone on his head thought (sic) the incident. Therefore, even if a stone was put on his head and he was asked to take a particular position, it must have been for a short period. He has shown the presence of accused persons with an unidentified person right from the beginning to the end, which covered a period of 15-16 hours. Therefore, even if a stone was put on his head and he was asked to take a particular position, it must have been for a short period. He has shown the presence of accused persons with an unidentified person right from the beginning to the end, which covered a period of 15-16 hours. ( 55 ) IN these circumstances only because Rajesh Jodha had made a statement that a stone was put on his head and he was made to stand in a particular position (murga) and was made to stand with head downwards, it cannot be taken to wash out his entire testimony, Moreover, further in his cross-examination on Novermber 29, 1987 by Shri Mohanani on behalf of other accused, he categorically denied the suggestion that at the time of the incident, he was made to stand in a murga position and the matter was not persuaded thereafter. ( 56 ) A suggestion has been given in cross-examination that this witness Rajesh Jodha had illicit relations with deceased Deepaks sister - Pragati and because of that relations between him and Deepak were strained. It was also suggested that for this reason Deepak was falsely implicated by him by taking his name and it was also suggested that Deepak was assaulted by Rajesh Jodha and Som Singhal. There is absolutely no basis for putting such a question. Suggesting that there was enmity between Deepak and Rajesh Jodha and therefore Rajesh Jodha took the name of Deepak is accepting the prosecution version that Rajesh Jodha was asked to name his friends in the locality with names of three letters. Even otherwise it cannot be swallowed that a boy of 17 years would be having an afair with a girl of 10-12 years and would go to the extent of committing a murder and pass it on to eight other persons, one of them not even known to him by name. ( 57 ) THUS on over all assessment of the testimony of Rajesh Jodha, we find it to be absolutely reliable and we are of the opinion that his sole eye witness account was sufficient to hold the accused - appellant guilty. ( 58 ) THE testimony of PW2 Ugam Singh would be important for two reasons. ( 57 ) THUS on over all assessment of the testimony of Rajesh Jodha, we find it to be absolutely reliable and we are of the opinion that his sole eye witness account was sufficient to hold the accused - appellant guilty. ( 58 ) THE testimony of PW2 Ugam Singh would be important for two reasons. He was the father of Rajesh Jodha who had come to know of the incident from Rajesh Jodha and on that information he had lodged report Ex. D/3. Secondly, he was the person who is said to have been contacted to by Mahesh Choudhary who had gone to his place in search of stolen money. Thus his evidence about the incident is indirect about the incident and those involved in it. His evidence is direct as to what Rajesh Jodha immediately after the incident narrated to him. Statement of Rajesh Jodha is corroborated by the evidence of PW2 Ugam Singh because it is proved that he had immediately after the incident had the first opportunity of meeting his father and narrated substantially the important events that had occured during the incident. He has also named his assailants. There were omissions and contradictions pointed out in the statement of Ugam Singh but his explanation that as the condition of his son was serious, he was frightened he might have omitted to mention in Ex. D/3 some information received from his son. As regards his conduct of not reporting the matter from 5. 00 AM to 7. 00 AM of June 25, 1986, we have to visualize the situation in which father of a young boy would find himself when all of a sudden some one in the early hours of dawn descends upon him and informs him that his son was in his custody and had confessed to having stolen money. He has explained that Mahesh Choudhary had said that he would bring back his son and therefore he did not report the matter to the Police or send information at his Sardarpura house. This conduct cannot be said to be abnormal. To report the matter to the Police when ones son is in custody of the abductors is not so simple as it appears. A father will always be apprehensive of harm being done to his son if the matter was reported to the Police. This conduct cannot be said to be abnormal. To report the matter to the Police when ones son is in custody of the abductors is not so simple as it appears. A father will always be apprehensive of harm being done to his son if the matter was reported to the Police. Moreover, when Mahesh Choudhary had told him that he would bring back his son, it was natural for him to wait rather than rush to the Police. As regards not sending the information to his Sardarpura House, it has to be understood that Ugam Singh, the father of Rajesh was a responsible person in his family. He would not put his mother in anxiety by sending an information that Rajesh had been abducted. There are other minor omissions and contradictions pointed out vis-a-vis to the statement given by Rajesh Jodha as regards seeking of permission for going to Cinema and going for shoping etc. In our opinion, none of these statements shake the credibility of this witness. No reason has been shown or suggested as to why Ugam Singh was interested in falsely implicating the accused persons. We therefore, find the statement of this witness also reliable. ( 59 ) THE statement of PW 12 Smt. Krishna Agrawal is criticised on the ground that her statement was recorded belatedly, as also because of certain omissions and contradictions. The trial Court has noted the demenour of this witness in the witness box. She was so overwhelmed with emotion a number of times during the recording of her statement that her statement had to be stopped for a while more than once. One can understand the anxiety, stress and strain of the mother whose young son was taken away all of a sudden during the night and bruatly murdered. To find fault with her statement on the basis of minor omissions and contradictions would be adopting a hypertechnical view in assessment of evidence. She has categorically stated that Mahesh Choudhary had come to her house at mid night and taken away Deepak. Ajit was also with him and they took him on the Motor Cycle making him sit in between them. She has stated that she went to Mahesh Choudharys house at about 2. 00 AM and mother of Mahesh told her that Mahesh had also not returned. Ajit was also with him and they took him on the Motor Cycle making him sit in between them. She has stated that she went to Mahesh Choudharys house at about 2. 00 AM and mother of Mahesh told her that Mahesh had also not returned. Then she came to know from Rajesh in the morning that Rajesh and Deepak were assaulted by the accused persons and Deepak had succumbed to the beating. She had identified correctly Mahesh Choudhary and Ajit Choudhary in the Court. The omissions and contradictions pointed out in her statement are not on very important aspects but are minor in nature. Basic facts given by her were not shaken in the cross-examination. Her statement is also found to be reliable. ( 60 ) THE essential facts on the basis of which conviction was recorded by the trial Court are proved. As regards acquittal of Rajendra Ghanchi and Bharat Bhusan, the cases of both these accused persons were distinguishable from that of others. Rajendra Ghanchi has not been named in Ex. D/3, Ex. P/1, Ex. D/1 and in Ex. D/2. The accused was arrested on June 4, 1986 and his identification parade was held on June 19, 1986. He was not kept ba parda during this period. The trial Court had doubted the presence of Rajendra Ghanchi during the incident on the aforesaid grounds. In the circumstances of the case two opinions are possible as to whether on such an evidence, the accused could be found guilty or not? The trial Court has taken one possible view and in the limited scope of appeal against acquittal we do not consider it proper to interfere with the acquittal. It is quite possible that the person amongst the group of accused who was not named by Rajesh Jodha and whose identification marks were also not given, was not Rajendra Ghanchi but may be some one else. ( 61 ) AS regards acquittal of Bharat Bhushan is concerned, he was the person who could neither be said to be enimical towards Rajesh Jodha and Deepak Agrawal nor it can be said that he was so close to Mahesh Choudhary that he would go to any extent to see that the interest of Mahesh Choudhary was served. There is also nothing on evidence to show that he entertained the sus-picion that Rajesh had stolen money of Mahesh Choudhary. There is also nothing on evidence to show that he entertained the sus-picion that Rajesh had stolen money of Mahesh Choudhary. His presence on the spot could be easily explained. He had gone to Kohinoor Cinema along with Rajesh. Only because it had come in evidence that he had paid for the tickets and had persuaded Rajesh to accompany him, it cannot be taken to be proved that he had done so to trap Rajesh. Since they were friends, Bharat Bhusan could have taken Rajesh to a place where nobdoy would notice his abduction instead of taking him to a crowded Cinema Hall. His accompanying the accused persons in the D. S. Colony and in the K. K. Textiles could be as a mere spectator. It is quite likely that Bharat Bhushan was not allowed to go away and was kept with them by the accused persons so that he may not go away and inform the members of the family of Rajesh or the Police. Here again two views were possible as to the role of Bharat Bhusan. If the trial Court had taken one possible view and had acquitted him, within the limited scope of an appeal against acquittal, no interference is possible. ( 62 ) ON the question of the offence which can be said to be made out on the basis of facts proved, it was vehemently argued that there was no previous enmity between the parties and the only motive proved was to recover Rs. 25,000/- which Mahesh had lost and he entertained a doubt that Rajesh Jodha was the culprit. The prosecution evidence suggested that Mahesh Choudhary having lodged reported on May 25, 1986 about theft of Rs. 25,000/- from his house kept on making private efforts to recover the amount and trace the culprit. He had gone to a place of Goddess and to a Tantrik who told him that theft was committed by a boy between 17 to 19 years of age residing in his locality with the name having three letters. He therefore picked up Rajesh and forced him to disclose the names of his friends in the same age group residing in the same locality and having three letter names. It was therefore, submitted that neither there was any intention to kill any one nor that was the common object of the assembly. He therefore picked up Rajesh and forced him to disclose the names of his friends in the same age group residing in the same locality and having three letter names. It was therefore, submitted that neither there was any intention to kill any one nor that was the common object of the assembly. It was suggested that the common object could at best be of recovering stolen money from the suspects by using some force. ( 63 ) IT is necessary for the purpose of finding out whether an offence under Section 302 IPC would be made out or the case would fall under Section 304 Part-II IPC. to enumerate injuries on the body of Rajesh and deceased Deepak. They are reproduced hereunder :- Injuries of Deepak :-1. Bruising of both lids of both eyes with sub-conjectival of haemorrhage of both eyes with six bruises over face. 2. Bruise 4" x 1/4" transversely over left angle of mandible and left side of neck. 3. Multiple bruises in an area of 14" x 16" over front of neck, chest and upper part of abdomen. 4. Bruises in an area of 7" x 10" on lower part of abdomen (are a near umblicus escape ). 5. Bruises in an area of 13" x 7" an anterior and medial surface of right thigh. 6. Bruises in an area of 11" x 9" on left thigh anterior and medial side. 7. Nine bruises scattered over right leg mostly on anterior and outerside. 8. Eight bruises scattered over left leg mostly on anterior and outer side of left leg. 9. Multiple bruises in an area of eight inches by five inches on left arm anterior and lateral surface. 10. Eight bruises scattered over left forearm outer and anterior surface in an area of 6" x 4". 11. Multiple bruises over an area of 10" x 41/2" over right shoulder and right arm anterior lateral surface. 12. Ten bruises scattered over right forearm outer and anterior side all over. 13. Bruises in an area of 2" x 2" with abraided surface on scrotum. 14. Three bruises varying in size 1" x 1/2" to 11/2" to 1/4" over penis. 15. 12. Ten bruises scattered over right forearm outer and anterior side all over. 13. Bruises in an area of 2" x 2" with abraided surface on scrotum. 14. Three bruises varying in size 1" x 1/2" to 11/2" to 1/4" over penis. 15. Multiple bruises over whole of back posterior of neck and extending upto lower 1/3rd of posterior aspect of both thighs in an area of 35" x 16" at shoulder level over buttock level in an area of 35" x 17". All the bruises varying in size from 1" x 1/4" to 8" x 1/4". About 3/4" of the total bruises were showing abraided surface. Most of the bruises were 1/4" in width. About 1/3rd" of the bruises mostly on right side of the abdomen were u shaped with a gap of 3/4" between the two limbs of u. Many of the bruises were also showing a clear space in its width that is parellel in nature with a clear space of 1/8" in between 1" x 1/4" to 8" x 1/4". Injuries of Rajesh :-1. Multiple scattered bruises in an area of 20" x 13" over lower 3/4 of back with most bruises showing abraided surface. 2. Multiple scattered bruises in an area of 18" x 7" over outer and anterior surface of right arm and right forearm. 3. Multiple bruises in an area of 18" x 5" over left arm outer and anterior surface. 4. Multiple bruises scattered over right buttock in an area of 10" x 5". 5. Multiple bruises over left buttock in an area of 5" x 4". 6. Multiple bruises on left thigh upper and outer side in an area of 5" x 4". 7. A parellel bruise 31/2" x 1/4" with clear space of 1/8" in between on left cheek. 8. Bruise 1" x 1/4" below left eye. 9. Bruise 3" x 1/4" on right cheek. 10. Bruise 1" x 1/4" below right eye. 11. Three bruises of size 1" x 1/2" to 11/2" x 1/2" on right side of neck. 12. Bruise 1" x 3/4" on left side of neck. 13. Bruise 1" x 1/4" on right angle of mandible. 14. Bruise 1/4" x 1/6" with abraided surface on upper part of nost. ( 64 ) THE doctor had opined that cumulative effect of all the injuries as discussed was sufficient in the ordinary course of nature to cause death. 12. Bruise 1" x 3/4" on left side of neck. 13. Bruise 1" x 1/4" on right angle of mandible. 14. Bruise 1/4" x 1/6" with abraided surface on upper part of nost. ( 64 ) THE doctor had opined that cumulative effect of all the injuries as discussed was sufficient in the ordinary course of nature to cause death. Thus the case squarely falls under Clause thirdly of Section 300, IPC. The convicted accused persons should also be deemed to have knowledge that severely beating a person for 14-15 hours with electric wire whips (hunters) would be so imminently dangerous that it must in all probability cause death or such bodily injuries as are likely to cause death. The convicted accused persons cannot put forward their suspicion that Rajesh Jodha and Deepak Agrawal had committed theft of money from the house of Mahesh as (sic) an excise. The case could be covered under clause fourthly of Section 300, IPC also. ( 65 ) IT was also contended that prosecution alleged that knives were also available with the accused persons. If that was so not using the knives would go to show that there was no intention to cause death. The argument is attractive but in the circumstances of the case when the victims were thrashed throughout the night with wire whips, mercilessly and it was proved that the injuries were sufficient in the ordinary course of nature to cause death, the case squarely falls in clause thirdly of Section 300, IPC. ( 66 ) WE have therefore, no hesitation in holding that the convicted accused persons were guilty of murder and not of culpable homicide. ( 67 ) AS regards the other offences also, we do not find that the trial Court has erred in any manner. There is no doubt that the convicted accused persons formed an unlawful assembly. There is no doubt that they had abducted Rajesh Jodha and Deepak. There is no doubt that they had fatally wounded Deepak. They were therefore, rightly held guilty for an offence under Section 302, IPC read with 149, IPC. ( 68 ) THERE is also no doubt that if Rajesh Jodha had succumbed to his injuries, the accused persons would have been held guilty for offence of murder under Section 307 is also proved. They were therefore, rightly held guilty for an offence under Section 302, IPC read with 149, IPC. ( 68 ) THERE is also no doubt that if Rajesh Jodha had succumbed to his injuries, the accused persons would have been held guilty for offence of murder under Section 307 is also proved. ( 69 ) SO far as the appeal of enhancement of sentence of Mahesh is concerned, looking to the fact that there was no previous personal enmity between him and Deepak Agrawal and looking to the fact that more than ten years have already elapsed after the crime was committed, it would not be just and proper to enhance the sentence of life imprisonment to the sentence of death. ( 70 ) FOR the aforesaid reasons, the appeals filed by accused-appellants Ajit Singh, Rajesh Choudhary, Kaumal Sindhi, Raju alias Rajendra Soni, Mahesh Choudhary, and Shyam Singh are dismissed. The appeal of the State against acquittal of Rajendra Ghanchi and Bharat Bhusan is also dismissed and the appeal filed for enhancement of sentence of Mahesh Choudhary is also dismissed. Order accordingly.