JUDGMENT 1. - Appellants Prakash and Data Ram have preferred this appeal against the judgment and order dated June 30, 1992 passed by Additional District & Sessions Judge, Dholpur in Sessions Case No. 56/90, whereby Data Ram was convicted under Section 302, IPC and Prakash was convicted under section 302 read with Section 34, IPC. They were sentenced to imprisonment for life and to pay a fine of Rs. 500/-each. In default of payment of fine, they were further required to undergo simple imprisonment for one month. 2. The facts giving rise to this appeal are as follows :PW 1 Rajveer made a written report at Police Station Sepau, District Dholpur at 10.00 a.m. on 15.7.90 for an incident which had taken place on the same day at 7.00 a.m. One this report, Crime No. 136/90 was registered under Section 147, 148, 149 and 302, IPC and a formal FIR (Ex.R 3) was chalked out. As per the prosecution case, informant-Rajveer and his brother Rajesh, aged 18 years, were grazing their she-goats near the pond of the village. `Nohra' of Data Ram-Appellant is also situated near the pond where the appellants, Charan Singh, Tej Singh, Nek Ram and Ram Charan abusing (sic) Harijans of the village. The deceased-Rajesh rebuked them for hurling abuses on Harijans. Thereupon, they cried to kill him. The appellant Data Ram, then, inflicted blow with the axe on the head of Rajesh. Appellant-Prakash and other persons were having lathis at that time and it is alleged that Prakash took the axe from Data Ram-appellant and inflicted a blow on the ear of Rajesh. Against remaining persons, the accusation was that they surrounded the deceased. After registration of the case, Police started investigation. Inquest-Report was prepared and Dr. Bhagwandas Jindal (PW 5) conducted autopsy on the dead body of the deceased. As per the post-mortem report (Ex.P 5) the deceased has sustained the following injuries : "1. Incised wound-5 Cm x 2 Cm x Infracranial region scalp at mid parietal region transverse in direction. Cause of both parietal bone & laceration of parietal lobe of brain. 2. Incised wound-4 Cm x 2 Cm x Infracranial on scalp at Right parietal region vertical in direction cause of Rt. parietal of brain. 3. Incised wound-3 Cm x 1 Cm x cartilage deep transverse in direction cutting the c.a. pinna of Lt. Cause of both parietal bone & laceration of parietal lobe of brain. 2. Incised wound-4 Cm x 2 Cm x Infracranial on scalp at Right parietal region vertical in direction cause of Rt. parietal of brain. 3. Incised wound-3 Cm x 1 Cm x cartilage deep transverse in direction cutting the c.a. pinna of Lt. ear at middle." The opinion of the doctor regarding the cause of death of the deceased was multiple fracture on parietal bones and laceration of brain and haemorrhage due to sharp weapon. Both the appellants were arrested on 9.8.90. After completing requisite investigation and recording statements of the witnesses, the charge sheet came to be filed against the appellants only. No charge sheet was filed against other persons named in FIR against whom there was an allegation to have surrounded the deceased-Rajesh. Charge under Section 302, IPC was framed against the appellant Data Ram for causing murder of Rajesh by inflicting axe-blows on his head while appellant Prakash was charged under Sections 302 with the aid of Section 34, IPC. 3. During trial prosecution examined 15 witnesses. It mainly relied on the evidence of eye-witnesses, PWs 2, 7, 9 and 11 to seek conviction of the appellants. The trial Court, placing reliance on their testimony, convicted and sentenced the appellants as stated above. 4. Mr. Biri Singh, learned counsel appearing on behalf of the appellants, took us through the evidence and the judgment under challenge in appeal and contended that there are material contradictions in the statements of the witnesses. That the witnesses had not seen actual occurrence and they were falsely made-up as witnesses. According to counsel, the eye-witnesses examined in the trial Court were near relatives of the deceased and they were also inimical to the accused. Counsel also contended that there was conflicting evidence about the place where report of the incident was made and the person who had scribed it. Counsel also contended that the true version of the incident has not been brought before the Court and it was a blind murder, but false evidence was created to implicate both the appellants. Counsel also contended that there was conflicting evidence about the place where report of the incident was made and the person who had scribed it. Counsel also contended that the true version of the incident has not been brought before the Court and it was a blind murder, but false evidence was created to implicate both the appellants. Lastly, it was contended that Prakash-appellant was armed with a lathi like other persons who were not challenged and in case he had been present and participated in the incident there was hardly any reason for not assaulting the deceased with the lathi which he was holding at that time. Learned counsel urged that the prosecution case about inflicting an axe blow to the deceased on his ear by Prakash-appellant does not inspire confidence, specially when the Investigating Officer has categorically stated that from his investigation, the implication of other accused was found to be false.The learned Public Prosecutor, on the other hand, supported the judgment of the trial Court. 5. We have given our deep consideration to the above submissions and also minutely examined evidence in light of the criticisms advanced by the learned counsel appearing on behalf of the appellants.The Medical-Officer Dr. Bhagwandas Jindal (PW 5) who conducted autopsy on the dead body of the deceased has described the above referred three injuries noticed by him. Injury Nos. 1 and 2 were opined by him to be responsible for causing his death and all the injuries were anti-mortem caused within 6 hours from the time of postmortem which was made at 12.30 p.m. on 15.7.90. Nothing has come in his cross-examination to discard his testimony. From the statement of the doctor it stands proved that the deceased-Rajesh had three injuries on his head and all the injuries were caused by a sharp edged weapon and injury Nos. 1 and 2 were responsible for his death. 6. PW 2 Rajveer is the star eye-witness of the incident, who was with the deceased-Rajesh at the time of the incident. On his report (Ex.R 3) the crime was registered at the Police-Station. He has narrated the facts on oath as given by him in the report. 1 and 2 were responsible for his death. 6. PW 2 Rajveer is the star eye-witness of the incident, who was with the deceased-Rajesh at the time of the incident. On his report (Ex.R 3) the crime was registered at the Police-Station. He has narrated the facts on oath as given by him in the report. For actual assault, he has stated the appellant-Data Ram had inflicted two blows on the head of the deceased and third blow was given by the appellant-Prakash from the axe which was taken by him from the appellant-Data Ram. This was caused on the ear of the deceased. In cross-examination, the witness has stated that they were grazing she-goats near the `Nohra' of appellant-Data Ram which is by the side of village-pond. He further stated that the occurrence took place when they were returning home after grazing she-goats and according to him they were returning earlier, Rajesh was required to go for ITI training and he also wanted to go to Dholpur with him. He also stated that there was enmity with the accused, as appellant prakash, Charan Singh and Ram Charan of his party had killed `sugaria' (a cattle) belonging to his elder father-Nathi. He, then, admitted that he was not assaulted by any of the accused and that he cried for help at the time of the incident. For the report (Ex.P 2), the witness has stated that it was written by Gulab Singh, SHO and that the witnesses Samundar Singh, Munni and Kali Charan had arrived after he was crying. The witness was confronted from the report (Ex.R 2) and his statement (Ex.D. 1), recorded under Section 161 Cr.PC about omission of the fact that the appellant-Prakash gave his lathi to Data Ram and took his axe and after inflicting axe blow to Rajesh returned the same to Data Ram, the witness replied that he was unable to tell any reason. 7. PW 7 Samundar Singh is another eye-witness. He deposed that at 7.00 a.m. on the day of incident he was going to the well and found that appellant-Data Ram was abusing deceased-Rajesh. He also deposed about causing one axe-blow to the deceased by the appellant-Prakash, after taking axe from Data Ram. According to him, several persons of the `Mohalla' had assembled on hearing the noise, but no-body intervened. He also deposed about causing one axe-blow to the deceased by the appellant-Prakash, after taking axe from Data Ram. According to him, several persons of the `Mohalla' had assembled on hearing the noise, but no-body intervened. Similar is the statement of PW 9 Smt. Munni, PW 11 Kali Charan is also an eye-witness of the incident. He has also testified the above facts as narrated by other witnesses. 8. The main criticism made by the learned counsel to the evidence of the eye-witnesses is that there are material contradictions in their testimony about the place from where they had seen the occurrence and who came first at the site of occurrence. This aspect was minutely examined by us. So far PW 2 Rajveer is concerned his statement is consistent that he was alongwith the deceased at the time of the incident. PW 7 Samundar Singh, PW 9 Smt. Munni and PW 11 Kali Charan arrived at the spot on hearing noise. The discrepancy pointed out in statements of the eye witnesses on the fact as to whether the incident took place while Rajesh and Rajveer were returning after garzing she-goats or it took place when they were taking them for grazing and also on the fact that which of the witnesses came earlier at site, are of minor significance and are hardly sufficient to discard the evidence of the witnesses. It is not-worthy that incident had taken place at 7.00 a.m. and report of the incident was promptly made at 10.00 a.m. at Police Station, while the distance is 9 Kms. from the place of incident. The report contains the same version and shows presence of all the eye witnesses at the time of incident. It is true that the witnesses are related to the deceased, but this ground alone is not sufficient to discard their testimony, though, their evidence requires to be examined with care and caution. The argument that other independent witnesses were not examined stated that he enquired from the witnesses of Jatav community, but their statements were not recorded as they did not state their presence at the time of the incident. The I.O. has also stated that from his investigation other persons of Jatav community were not found to be present at the time and place of incident. The I.O. has also stated that from his investigation other persons of Jatav community were not found to be present at the time and place of incident. However, we are not inclined to place reliance on the testimony of PW 11 Kali Charan, who happens to be of a different village and his presence at the place of incident does not appear to be natural. This witness has admitted his village to be 12 miles away from the place of incident. He has also stated that he did not know any of the persons of that village. After going throught the statements of PW 2 Rajveer, PW 7 Samundar Singh and PW 9 Smt. Munni, we find their evidence to be consistent and firm throughout and their presence is also mentioned in the report which was made without any delay to fabricate a false case against the appellants. It is true that there is some conflicting evidence as to whether the report was made at the Police Station or in the village. The SHO PW 8 Gulab Singh has stated that the report Ex.R 2 was given to him by Rajveer Harijan at the Police Station, while PW 2 Rajveer has stated in his cross-examination that at the police station he had narrated the entire Incident to Thanedar who came in the village where report was written by him and his signatures were obtained. It is pertinent to state here that Rajveer was a lad of 16 years on 10th April, 1991, when his statement was recorded and at the time of incident he was hardly 15 years or so. Due to tender age and delay in recording his statement the discrepancy appears to have accrued due to faulty memory or under some wrong impression. It may be stated here that it is not disputed that the report was made on 15.7.90. Time is also mentioned on the report as 10.00 a.m. Rajveer was not having any design to introduce a false story. The site plan was also prepared on the same day in which FIR number has been noted down. The post-mortem of the dead body was also conducted at 12.30 p.m. on the same day. We are not prepared to accept the argument made by Mr. The site plan was also prepared on the same day in which FIR number has been noted down. The post-mortem of the dead body was also conducted at 12.30 p.m. on the same day. We are not prepared to accept the argument made by Mr. Biri Singh that investigation of the case was not properly made and we find no material on the record except the above discrepancies pointed out.The argument of Mr. Biri Singh in relation to appellant- Prakash requires serious consideration. As per prosecution case, Prakash was having a lathi, but no injury was inflicted by him with lathi. We are not convinced with the prosecution case that he gave his lathi to appellant Data Ram and took his axe and then inflicted axe-blow on the ear of the deceased causing simple injury. There was no reason for not using lathi by appellant-Prakash when he himself was having a lathi. The investigating agency has not believed the prosecution case qua other 4 accused, who were not challenged and, as such, we think it just and proper to extend the benefit of doubt to appellant-Prakash. But so far appellant Data Ram is concerned, we find that his guilt is proved by cogent and reliable evidence.Consequently, the appeal is allowed In part. The conviction and sentences of the appellant-Data Ram is maintained and his appeal is dismissed. However, the appellant-Prakash is acquitted of the charge and his conviction and sentence under Section 302 read with Section 34 IPC is set aside. He is In custody, as such, he shall be released forthwith, if not wanted in any other case.Appeal partly allowed. *******