JUDGMENT 1. - The four appellants before us have been convicted for the offence under Section 302 read with Section 34 Indian Penal Code and sentenced to life imprisonment and to pay a fine of Rs. 500/- each and in default of payment of fine to undergo further imprisonment for one month. Against this conviction made by the learned Additional Sessions Judge No.1 Ajmer by its order dated 2.1.1990 appellants Vishnu and Bhoju have preferred D.B.Cr. Appeal No.477 of 1990, and appellants Arjun and Mirchu have preferred D.B.Cr. Appeals No.68 of 1990 and 54 of 1990 respectively. As they are arise out of the same decision, they are being disposed by a common judgment. 2. The facts leading to the case are that on 18.10.1983 at 8.00 a.m. in the city of Ajmer, some Tongawallas, namely, Jhamandas, Tirathdas, Gul and Dharmu were at the Tonga Stand at Diggi Chowk when the accused Mirchu @ Lakhpati and his nephews Arjun, Vishnu and Bhoju came there and dragged Dharmu from the Tonga and started beating. Mirchu had a danda, which is used for washing clothes, while the other three had parkhies in their hands. They gave blows and Dharmu ran from there. First he fell down near the Milk Booth then he got up and ran in the lane known as Lane of Dr. Manghani. The Tongawalas tried to intervene but they were threatened by the accused persons. At that time Vishnu also said that he (Dharmu) had broken his (Vishnu's) teeth, therefore he would kill him. The accused chased Dharmu and later he was found lying dead in the lane of Dr. Manghani. 3. A report to this effect was lodged by Jhamandas at Police Station Clock Tower Ajmer orally and upon this report a case was registered. 4. The site plan prepared by the Investigating Officer is Ex. P/6. Blood was collected from the place where the deceased was lying. The Police Flying Squad came to the site and removed the body but Dharmu was already dead and post-mortem was conducted. 5. The post-mortem was conducted at 11.30 a.m. on the same day i.e. 18.10.1983 and the report is Ex. P/23. Following injuries were found on the body of the deceased: (1) An incised wound 3 X 3/4 cms. X muscle deep on left parietal region of scalp, placed obliquely and tailing outwards. 5. The post-mortem was conducted at 11.30 a.m. on the same day i.e. 18.10.1983 and the report is Ex. P/23. Following injuries were found on the body of the deceased: (1) An incised wound 3 X 3/4 cms. X muscle deep on left parietal region of scalp, placed obliquely and tailing outwards. (2) A stab wound 11/2 X 3/4 cms. x muscle deep ellipsoidal in shape and placed on right side of neck, horizontally. (3) A stab wound 21/2 X 1 cms. x muscle deep on right deltoid region of arm. (4) A stab wound 2 X 1 cms. on back of upper part of rt. shoulder, muscle deep. (5) A stab wound 2 X 1/2 cms. on upper ad anterior part of rt. shoulder, muscle deep. (6) A stab wound 11/2 X 3/4 cms. X muscle deep on left deltoid region of arm. (7) A stab wound 21/4 X 11/2 cms. ellipsoidal in shape on left side of chest in II I.C.S. outer tomidline. (8) A contusion 2 X 3/4 cms. on left side of forehead. (9) A contusion 11/2 X 1/2 cms. just outer to injury No. 8 (10) A contusion 6 X 21/2 cms. on zygomatic region of left side of face. (11) A contusion 6X 21/2 cms. on rt. deltoid region, near injury No. 3. (12) Two abrasions, each 1 cms. diameter on back of left shoulder. (13) An abrasion 2 X 1 cms. on upper and outer part of left shoulder. (14) An abrasion 2/1-2 X 3/4 cms. on front of left shoulder. (15) A stab wound 11/4 X 3/4 cms. on hypothenar region of right palm. (16) An incised wound 11/2 cm. long on dorsum of right little finger. (17) An abrasion just below injury No.7, horizontally placed, measuring 4 cms. (linear). (18) An abrasion 6 cms. long vertically placed on left side of chest. (19) An abrasion 4 cms. long obliquely placed just below 18. (20) A long, obliquely redical abrasion (linear) 27 cms. long extending from upper part of chest on right side towards umbilicus. (21) A linear abrasion 12 cm. long outer to middle of 20. (22) An abrasion 2 X 1/2 cms. on medial muscles of rt. ankle. Exploration (A) Cranial cavity: For injury No.1, scalp layers were explored and found soaked with blood. No fracture o bone. On removal of skull cap, the membranes are seen congested. (21) A linear abrasion 12 cm. long outer to middle of 20. (22) An abrasion 2 X 1/2 cms. on medial muscles of rt. ankle. Exploration (A) Cranial cavity: For injury No.1, scalp layers were explored and found soaked with blood. No fracture o bone. On removal of skull cap, the membranes are seen congested. Brain matter healthy. No bleeding. (B) Chest: On exploration for injury No.7, it was noted that there is bleeding in injured tissues. Injury extended deeply upto the lung (left lung, upper to be medial side). The lung tissue was pierced upto 03 ems. of its depth. Plurae congested. There is blood collected in the thoracic cavity (amount about 1500 m.). 6. In the opinion of Dr. B.L. Bhatia, the deceased died as a result of hyporohemic shock as a result of ante mortem injury to the left lung. The injury No.7, which was on the left lung was found on exploration to have extended upto the upper part medial side of the left lung and the lung tissue was pierced upto 03 cm. of its depth. The plurae was congested. There was blood in the thoracic cavity. His observations are that the stomach contained semi-digested food material. 7. The case of the accused is of complete denial. According to them they have been falsely implicated in the case. 8. The prosecution examined as many as 13 witnesses and the Addl. Sessions Judge after going through the material on record arrived at the conclusion that all the accused bad common intention of causing the death of the deceased and with this intention all of them inflicted blows on the deceased. It was accepted by the learned Addl. Sessions Judge that the evidence did not prove as to which accused was responsible for which injury. The evidence was there that all the accused gave beating to the deceased hence they were all responsible for the death of the deceased. The learned Addl. Sessions Judge also considered the contradictions in the evidence pointed out on behalf of the accused but according to him they did not go to the root of the matter so as to say that the prosecution had failed to prove the guilt of the accused. 9. We have to consider the material on record and the evidence produced in the case in order to see whether the finding of the learned Addl. 9. We have to consider the material on record and the evidence produced in the case in order to see whether the finding of the learned Addl. Sessions Judge is correct or not. 10. We may first look into the evidence which has been produced in the case. P.W.1 Sajan is a witness to the memos prepared by the police and he has proved the signatures on Ex. P/I to P/14. The clothes of the deceased were seized in his presence. P.W.2 Ashok is the second witness to these memos and he has also proved his signatures. 11. PW.3 Jhamandas is an eye witness. He has stated that on 18.10.1983 in the morning at about 7.00 a.m. he was sitting in his Tonga and other Tongawalas, namely, Dharm and Gul also came to his tonga and they were talking with each other when the four accused came there and pulled Dharmu by the hair and he fell down. Vishnu caught the hair of Dharmu and Mirchu @ Lakhpati gave a danda blow on his head and the other three gave parkhi blows to Dharmu. Dharmu ran towards the Milk Booth. The accused ran after him. Then Dharmu ran towards Manghani Lane. The accused was saying at that time that if any body came in between he would also be killed. After a few minutes the witness went in the lane and found that Dharmu was lying in the nali. He carne back and told Tirath, and Gul that Dharrnu was lying in the lane. All three went there and found that Dharmu was dead. They went to the Police Station Clock Tower. Jamnadas lodged a report which was written at the Police Station and he signed it. He came back with the police to the site and site plan Ex. P/6 was prepared. He has been cross examined at length and he has admitted that there was one more Tonga beside his Tonga at the Tonga Stand. There is a Hotel near the crossing and there are tea shops which open at 6.00 a.m. but none of the persons of the shops or other Tongawala came to help to the deceased. Flowermen sit in the chowk near Dr. Manghani Lane. He also said that he went to the site after one and half hours and not before that and at that time he saw the deceased. 12. Flowermen sit in the chowk near Dr. Manghani Lane. He also said that he went to the site after one and half hours and not before that and at that time he saw the deceased. 12. In this one and half hour he had taken some passengers in his Tonga and then came back to the Tonga Stand. At that time he did not mention about the incident to anybody. When he returned after about one and half hours there were several shops in Manghani Lane which were open and a crowd had collected including Dharmu's relations at the place where Dharmu was lying dead. At that time he did not inform the relations of Dharmu as to who were the persons who caused the injuries to Dharmu. According to him the Police Flying Squad took away the dead body of Dharmu and after that he went to the Police Station Clock Tower to lodge the report. One Kisan @ Guruji had directed him to go to the Police Station, then he wrote out the report and then took the written report to the Police Station. He has also stated that at the time of the incident his attention was towards his horse and not towards the persons who were beating Dharmu. He also said that it was correct that he gave out the names of the assailants on the basis of the names given by the neighbours. When this witness changed his version in the cross examination, the Court intervened and asked several questions then the witness again stated that the FIR Ex. P/5 bears his signatures and he made this oral report which was written out. Then he admitted that just 10 to 15 minutes after the incident he went in the lane and saw Dharnru lying near the Nali and this was correct and not that he had gone there after one and half hours. He admitted that at that time Dharmu's mother and sister were not there and they came later. He was cross examined by the Counsel for the accused and be stated that during one and a half hours he had taken the passengers and then he came to his house near Manghani Lane then he saw deceased lying there. He denied the suggestion that he was deposing under the pressure and threat of one Ghanshyam. 13. He was cross examined by the Counsel for the accused and be stated that during one and a half hours he had taken the passengers and then he came to his house near Manghani Lane then he saw deceased lying there. He denied the suggestion that he was deposing under the pressure and threat of one Ghanshyam. 13. P.W.6 Bherulal is a witness to the collection of blood from the place where deceased was lying. While P.W.5 Shanker has turned hostile and not supported the recovery of parkhi at the instance of the accused Vishnu. P.W.4 Nain Singh is a Police employee, who deposited the articles in the malkhana and took them to the FSL. P.W.7 Hasa Mal is a witness to the recovery of Parkhi at the instance of accused Vishnu and danda at the instance of Mirchu, but he had made an attempt to confuse that he himself did not go inside the house of the accused and has deposed about the recovery on the basis that the weapons were in the hands of the accused. P.W.8 Durgadas, is a sweeper of the J.L.N. Hospital, Ajmer. He has not specifically admitted the signatures on Ex.P/2 and as to why be was made to sign the same. P.W.9 Chander Singh is a witness of recovery of weapon and P.W.10 Gulvendra Singh has turned hostile. 14. Next relevant witness is P.W.11 Tirath. He is supposed to be an eye witness. He has deposed that four years ago at about 7.00 in the morning he was sitting in his Tonga at the Tonga Stand and Jhaman was sitting in his own Tonga with Gul and Dharmu. At that time accused, namely, Mirchu @ Lakhpati, Vishnu, Bhoju and Arjun came there. Vishnu caught hold of the hait of Dharmu and Dharmu fell down and at that time Vishnu said that Dharmu had broken his teeth last night, now he will not leave him alive. Mirchu gave a danda blow on the head of Dharmu and the other three gave parkhi blows on different parts of Dharmu. Gul, Jhamumal and this witness tried to intervene but the accused persons threatened them that they would also be beaten. Dharnw then went towards the Milk Booth and fell down and the accused ran after him. Dharmu further ran but be fell down in Dr. Manghani's Lane. Gul, Jhamumal and this witness tried to intervene but the accused persons threatened them that they would also be beaten. Dharnw then went towards the Milk Booth and fell down and the accused ran after him. Dharmu further ran but be fell down in Dr. Manghani's Lane. Jha muma 1 went to see Dharmu and found that Dharmu had died. This witness, Gul and Jhamumal went to lodge a report at the Police Station. In the cross examination a suggestion has been made to this witness that he was deposing under the pressure of Ghanshyam who is the brother of deceased Dharmu. An attempt has been made to discredit him by showing that a case under the Excise Act is pending against him and that fifteen years ago be was convicted in a pickpocketing case. He has stated that few Tongamen sleep at Tonga Stand at night and some come there in the morning. According to him some persons had collected at the time of the incident but no one tried to save Dharmu. According to him he did not talk about the incident to any other persons during the period of 10 to 15 minutes when Jhammu went to the lane and then came back with the news that Dharmu had died. After sometime Ambulance (Flying Squad of Police) came there and took away the deceased and then all persons including Gul, Jammu and this witness and one Kishan @ Guruji also accompanied the body of deceased. He stated that while going to the Police Station be did not inform anyone that any murder had been committed. He has denied that Jhammu had gone away to take passengers within 10 and 15 minutes and had gone to Dr. Mangbami's Lane after making a trip. This wit ness has been asked as to what is a 'parkhi' and he has said that it is used in taking out grain from bags and that father of Vishnu, Arjun and Bhoju is a grain broker. 15. Next eye witness is P.W.12 Gul. Like other eye witnesses Jhammu and Tirath, he has also stated that early in the morning be was sitting in the Tonga of Jhammu along with Dharmu. At that time the four accused came there. He deposed as to how Vishnu caught bold of Dharmu by the hair and pulled him from Tonga and then all the accused inflicted blows. Like other eye witnesses Jhammu and Tirath, he has also stated that early in the morning be was sitting in the Tonga of Jhammu along with Dharmu. At that time the four accused came there. He deposed as to how Vishnu caught bold of Dharmu by the hair and pulled him from Tonga and then all the accused inflicted blows. Vishnu also said that he would kill Dharmu because on the previous night be (Dharmu) had broken his (Vishnu's) teeth. Mirchu had a danda used for washing clothes while the other three had parkhies used for to king out grain from the gunny bags. Tirath, Jhammu and be tried to intervene but the accused persons threatened them that they would also be killed. Dharmu ran towards the Milk Booth and then accused ran after him and then Dharmu went towards the.Dr. Manghani's Lane and the accused followed him. After 10 and 15 minutes Jhammu came there and informed that Dharmu was lying dead in the lane. They all went there and then went to the Clock Tower Police Station to lodge the report. 16. In cross examination he has admitted that five or six cases were registered against him and he was convicted in one of them. After the incident Jhammu had gone to his house, which is through Dr. Manghani's Lane and then he found Dharmu dead. Jhammu had gone to drop the passengers. He admitted that from the place where the incident took place Manghani's Lane is not visible where Dharmu was lying. According to him he was under a great shock and could not say whether people had collected there or not. He has denied that he along with Tirath and Jhammu had gone to the Hospital in police vehicle. He has also denied that he was deposing under the influence of Ghanshyam. He has also denied the suggestion put to him that Dharmu was not a Tongawala. 17. Last witness is Dr. B.L. Bhatia, P.W.13, who conducted the post mortem. The Investigating Officer, who has investigated the case has not appeared in the case as a witness. Summons and bailable warrants were issued to enforce his attendance a but the evidence was closed as be did not appear on several dates. 18. 17. Last witness is Dr. B.L. Bhatia, P.W.13, who conducted the post mortem. The Investigating Officer, who has investigated the case has not appeared in the case as a witness. Summons and bailable warrants were issued to enforce his attendance a but the evidence was closed as be did not appear on several dates. 18. The learned Counsel for the accused has contended that in this case the recovery of weapons at the instance of the accused was not proved at all as the attesting witnesses turned hostile and even the weapons were not sent to the FSL for finding out the presence of blood on the weapons, hence this did not connect the accused with the crime. It is only on the basis of the testimony of eye witnesses that the accused have been convicted. The learned Additional Sessions Judge has not based the conviction on the basis of the recovery of weapons, hence this aspect is not relevant. We have to see the other circumstances of the case. 19. It is contended that the place where the occurrence is said to have taken place is a busy place where there are several shops, but no independent witness has come forward to depose about the incident. It is also argued that the place where the deceased was lying is not visible from the Tonga Stand and no blood was found either at the Tonga Stand or near the Milk Booth, which goes to show that if any incident took place at the Manghani's Lane then eye witnesses could not have seen the same. Coming to the testimony of P.W3 Jaman, it is-contended that he went away to drop the passengers and then be came to know the names of the assailants only from the neighbours and thereafter he went to the Police Station to lodge the report. It is argued that the blow said to have been inflicted by Mirchu on the bead of deceased is not corroborated by medical evidence. It has been contended that dye to enmity of three brothers and their uncle, the accused have been falsely implicated in the case and there is no evidence to connect them with the crime. Referring to the statement of P.W3 Jaman, it is contended that the written report said to have been lodged by him has not been produced. It has been contended that dye to enmity of three brothers and their uncle, the accused have been falsely implicated in the case and there is no evidence to connect them with the crime. Referring to the statement of P.W3 Jaman, it is contended that the written report said to have been lodged by him has not been produced. Reliance has been placed on several authorities to show that the medical evidence which is contrary to the oral evidence goes to show that the oral evidence is not correct. Non examination of independent witness is also said to be fatal to the prosecution case. The learned Counsel for the accused has further submitted that there was semi-digested food in stomach of the deceased, which goes to show that the incident did not take place at 7.00 a.m., but had taken place earlier during night and in the night and no witnesses had seen the incident and the story has been concocted against the accused on account of enmity. 20. We have considered the contentions raised on behalf of the appellants and also gone through the record. As far as first eye witness P.W.3 Jaman is concerned, no doubt he has tried to confuse the matter, but then the Court has tried to clarify the position and he stuck to his version as to how the incident occurred. No doubt an attempt has been made to confuse him but a reading of the whole statement cannot go to show that he was not knowing the names of the assailants and much later gave the names on the suggestions of someone else. When the deceased first got up and ran from the Tonga Stand and then got up from the Milk Booth and then further ran towards Manghani Lane, it is not unnatural for the witnesses to support him and he could not go further and had died. It has also come out that the accused persons were threatening these witnesses and hence they could not run after them. No reason has been suggested as to why they would implicate these accused if they had not been there at the time of the incident and were not the persons who had caused the injuries to the deceased. 21. It has also come out that the accused persons were threatening these witnesses and hence they could not run after them. No reason has been suggested as to why they would implicate these accused if they had not been there at the time of the incident and were not the persons who had caused the injuries to the deceased. 21. Much has been argued that there was no blood at the Tonga Stand but only at the place where the deceased was found, which shows that the place of the incident has been changed only to make P.W3 Jaman, P.W.11 Tirath and P.W.12 Gul as eye witnesses. The police did not make any effort to trace blood at the Tonga Stand or at the Milk Booth. It can also be said whether the blood immediately started oozing out so that it would leave a trail from the place the incident started and the place where it ended. The accused persons had gone after the deceased in Dr. Manghani's Lane and quite possibly some blows were given in the lane also. Blood would be found only where the person would lie down for some time and not where the deceased remained standing or lying on the ground just for a few seconds. A few drops of blood may not be visible on account of several people walking over the road, but absence of blood at the Tonga Stand or at the Milk Booth would not mean that the eye witnesses are making a false statement in respect of the case. We have again and again gone through the statements of the eye witnesses and contentions raised on behalf of the appellants, but we are unable to find any reason to disbelieve the testimony of the eye witnesses. Minor contradictions are bound to be there and on this ground alone the testimony of the witnesses cannot be brushed aside. In our opinion the eye witnesses have proved the incident. The case against the accused cannot be branded as false merely because the Investigating Officer has not come forward to depose and testify against the appellants. 22. Minor contradictions are bound to be there and on this ground alone the testimony of the witnesses cannot be brushed aside. In our opinion the eye witnesses have proved the incident. The case against the accused cannot be branded as false merely because the Investigating Officer has not come forward to depose and testify against the appellants. 22. Relying upon Mehrooda and Others v. State of Rajasthan (1982 Cr.L.R. (Raj.) 659) , it has been contended that when there is no evidence to show as to who caused the fatal blow then the accused persons should be convicted under Section 325 Indian Penal Code read with Section 34 Indian Penal Code. However, this would not be applicable to the present case because here there is specific evidence to show that it was the intention of the accused appellants to cause the death of Dharmu. They had come with this intention and the appellant Vishnu had made it clear that Dharmu had broken his teeth and he should not remain alive. In the case stated above, the accused did not fire a second time when the first shot missed and even the axe was used from the blunt side, thus the intention to kill had not been proved and merely because one injury proved to be fatal, the accused were not convicted under Section 302 read with Section 34 Indian Penal Code. In the case before us the evidence is clear that the accused persons had the intention to kill the deceased and as such they all would be liable for the offence under Section 302 Indian Penal Code read with Section 34 Indian Penal Code irrespective of the fact which of the accused caused the fatal blow. 23. On the basis of the condition of the food in the stomach an attempt has been made to show that it would go to show that the death has been caused earlier but for the purposes of this argument the learned Counsel should have questioned the doctor, who conducted the post mortem to make the basis for this plea and also as to when the food was last eaten. Without evidence as to when the food was last eaten it cannot be accepted that the death had occurred earlier and not at the time of the incident. 24. Without evidence as to when the food was last eaten it cannot be accepted that the death had occurred earlier and not at the time of the incident. 24. We have considered the pleas advanced before us but we are unable to accept the same. In our view there is sufficient evidence in the case to prove the case against the accused beyond reasonable doubt and the learned Additional Sessions Judge has rightly convicted the accused persons. These appeals are therefore dismissed. Conviction and sentence made by the Addl. Sessions Judge Ajmer are upheld. The accused should serve out the remaining sentence.Appeals dismissed. *******