JUDGMENT 1. - This appeal has been preferred against the judgment and order date 19.2.94 passed by the learned Sessions Judge, Jhunjhunu, whereby he convicted the appellants Pyarelal, Ranveer & Tarachand for offences under Sections 302/34 and 323/34, IPC and sentenced each one of them to undergo life imprisonment and to pay a fine of Rs. 1000/- in default of payment thereof to undergo simple imprisonment for a further period of six months on the first count, and to undergo one years' rigorous imprisonment with a fine of Rs. 1000/- in default of payment thereof to undergo simple imprisonment for a further period of six months on the second count, and also directed that their substantive sentence shall run concurrently. 2. Stated in succinct, the relevant facts are that on 15.7.92 at about 7.30 p.m. Natharam (deceased) alongwith his sons namely Rajesh (PW 5) & Dharmendra (PW 7) and his daughter Kumari Santosh (PW 6) aged about 12 years, was coming from his field and going to his house and when they were passing through the field of Arjunram (PW 1), the aforesaid appellants and co-accused Deshraj, who was a juvenile and was tried by the Juvenile Court, attacked on them. It is aileged that appellant Pyarelal was armed with 'Farsi', appellant Tarachand had a lathi, while appellant Ranveer and co-accused Deshraj were armed with `Gandasies'. They told Natharam, "Tumko Aaj Janti Katwante Hai" (We will let you to cut the Jhanti tree today). Thereafter Pyarelal inflicted a `farsi' blow on the foot of Natharam, as a result of which he fell down. Tarachand dealt a lathi blow on the head of Rajesh, who also fell down. It is alleged that appellant Pyarelal inflicted another `farsi' blow on the head of Natharam while appellant Ranveer and co-accused Deshraj dealt multiple lathi blows on various parts of his body. When Kumari Santosh (PW 6) intervened, a lathi blow was also inflicted on her hand. When Arjunram (PW 1) also came to their rescue, he too was given beating by them. It is the case of prosecution that the said occurrence was also witnessed by Lekhram and that the said assailants after inflicting injuries to Natharam, who had died on the spot, dragged his dead body and placed the same near the `Dhani' of appellant Pyarelal. It is the case of prosecution that the said occurrence was also witnessed by Lekhram and that the said assailants after inflicting injuries to Natharam, who had died on the spot, dragged his dead body and placed the same near the `Dhani' of appellant Pyarelal. Rajesh (PW 5) submitted a written report (Ex.P 15) on the next day, i.e. on 16.7.92 at 11.30 A.M. at Police Station, Nawalgarh, whereupon formal FIR (Ex.R 16) was drawn and case was registered. Bhagwan Singh (PW 11) SHO Police Station Nawalgarh inspected the site, prepared the inquest report of the dead body of Natharam and lifted samples of blood stained soil as also control sample of soil from the spot. 3. Dr. Ganeshram Gupta (PW 8) conducted autopsy on the dead body of Natharam and prepared post mortem examination report (Ex.P 18). He found the following injuries: 1 Incised wound 4 x 1 x) 1 cm. on mid occipital. 2. Lacerated wound 5 x 11/2 x bone deep mid parieto-occipital. 3. Lacerated wound 3x1x1 cm. on left parietal. 4 Incised wound 5 x 11/2 x bone deep on forehead obliquely on left side. 5. Incised wound 3x1x1 cm. on made forehead vertical. 6. Incised wound 1 x 1/2 x 1/2 cm. lateral to right eye tansverse. 7. Incised wound 3x1x1 cm. right chin obliquely. 8. Incised wound 4x1x1 cm. on left 10th intercostal space laterally. 9. Incised wound 2x1x1 cm. on right scapular obliquely placed. 10. Incised wound 2x1 x 1 cm on left scapular obliquely placed. 11. Lacerated wound 10x1x1 cm. on left supra- scapular with fracture of spine of scapula 12. Bruise 10x3 cm. above left nipple. 13. Bruise 12x3 cm. below left nipple. with facture of II, III, IV & V ribs at their anterior end. 4. On dissection, Dr. Gupta found that there was laceration of lung below the injury Nos. 5 & 6 and laceration of thorax with collapse of left lung. Ecchymosis was also present around the lacerated surface of lung. He further noticed a punctured wound on the left lumbar region causing injury to left kidney. Renal area also showed collection of blood on left side. The left kidney had an incised wound of 2 x 1 x 1 cm. on posterior surface. The doctor also found an incised wound measuring 2x1x1 cm. on lower ⅓rd of left arm; a bruise 10x3 cm. Renal area also showed collection of blood on left side. The left kidney had an incised wound of 2 x 1 x 1 cm. on posterior surface. The doctor also found an incised wound measuring 2x1x1 cm. on lower ⅓rd of left arm; a bruise 10x3 cm. on left deltoid area anteriorly; a lacerated wound 6x2x2 cm. with fracture of left ulna bone of lower ⅓ of left forearm medially; a punctured wound 1 x 1/2 x joint cavity deep on right elbow; multiple bruises on back of right forearm of various sizes situated transversely and an abrasion 2 x 1 cm. anterior to left shoulder. Dr. Gupta opined that the cause of death of Natharam was haemorrhagic shock secondary to injuries to lung, kidney and head. 5. Dr. Ganeshram Gupta (PW 8) also found injuries on the person of Kumari Santosh (PW 6) and Rajesh (PW 5) as detailed in medico-legal injury reports Ex.R 20 & Ex.R 21 respectively. 6. After completion of the investigation, a challan was submitted in the Court of the learned Additional Munsif & Judicial Magistrate, Nawalgarh, who in turn committed the case to the learned Sessions Court. The appellants denied their indictment and claimed trial. The prosecution examined as many as 11 witnesses. After trial, the learned Sessions Judge found the appellants guilty and sentenced them in the manner indicated above. Hence this appeal. 7. We have heard Shri Biri Singh, the learned counsel for the appellants and Miss Sumitra Goyal the learned Public Prosecutor, and carefully perused the record of the lower court in extenso. 8. Shri Biri Singh has vigorously canvassed that in this case the FIR has been lodged with inordinate delay which has not been satisfactorily explained, that it is a post-investigation document, that the alleged motive for murder in respect of cutting a 'Janti' tree is too feeble and concocted for committing murder of Natharam, and that from the prosecution evidence, no overt-act on the part of appellant Tarachand, who is aged 60 years has been proved at all and as such no offence is made out against him and that the learned trial Judge has misread the evidence and committed illegality in convicting the appellants. 9. On the other hand, the learned Public Prosecutor has supported the impugned judgment and reiterated the reasons enumerated therein. 10. We have given out anxious consideration to the rival submissions. 11. 9. On the other hand, the learned Public Prosecutor has supported the impugned judgment and reiterated the reasons enumerated therein. 10. We have given out anxious consideration to the rival submissions. 11. There is no dispute that the deceased Natharam and appellants Tarachand and Pyarelal are real brothers, that appellant Ranveer is son of Tarachand and Rajesh (PW 5) and Dharmendra (PW 7) are the sons and Kumari Santosh (PW 6) is the daughter of deceased, Natharam. 12. The whole case hinges on the occular testimony of Rajesh (PW 5) and Kumari Santosh (PW 6), who also sustained injuries during the incident. The learned trial Court has rightly not placed reliance on the testimony of another eye witnesses Dharmendra (PW 7), who is a child witness and was aged about 9 years at the time of incident. The alleged eye-witness Arjunram (PW 1) has been declared hostile. He has resiled from the portion A to B of his police statement (Ex.D. 1). Therefore, the learned Trial Court has rightly held him as an unreliable witness. 13. Rajesh (PW 5) has deposed that on the ill-fated day at about 7.30 p.m. he alongwith his father Natharam and sister Kumari Santosh was returning from his field for their house situated in Paniya Ki Dhani, that when they were passing through the field of Arjunram (PW 1), appellants Pyarelal, Ranveer and Tarachand and co-accused Dheshraj accosted them, that Pyarelal was armed with Farsi, Tarachand had a lathi, while Ranveer and Deshraj were armed with gandasis'. He has further deposed that on that day in the morning, they had a dispute about a `Janti' tree, which has been standing on the border of their fields, that at the time of incident appellants told Natharam, "Tere Ko Janti Katvanyege", that thereafter Tarachand dealt a lathi blow on the legs of Natharam with the result that the latter fell down, that appellant Pyarelal gave a `farsi' blow on the head of Natharam and that thereafter, all the appellants caused multiple injuries on him. Rajesh (PW 5) has stated that when he tried to rescue his father, Tarachand gave a lathi blow on his head, that when his sister Kumari Santosh tried to intervene, she also received injuries on her left hand by the lathi blow wielded by Tarachand. Rajesh (PW 5) has stated that when he tried to rescue his father, Tarachand gave a lathi blow on his head, that when his sister Kumari Santosh tried to intervene, she also received injuries on her left hand by the lathi blow wielded by Tarachand. He further stated that all the appellants and co-accused Deshraj indiscriminately inflicted injuries to Natharam, who succumbed to his injuries on the spot, and that the said incident was also witnessed by Arjunram, who was standing on the boundary of his field and Lekhram, who was in his house, Rajesh has further stated that the appellants dragged Natharam's dead body and brought the same near the house of Tarachand, that after the said incident, he went to Ramnath, Ramkaran, Harchand and others in the village, who came with him and saw the dead body of the deceased Natharam. Rajesh has deposed that since it had become dark and he was afraid of the appellants he remained near the dead body of his father in the night, and that next day morning, he went to the police station Nawalgarh, submitted written report (Ex.P. 15), whereupon FIR (Ex.R 16) was drawn and his signatures were procured thereon. He has admitted that in his written report (Ex.P. 15), he forgot to mention that appellant Tarachand had inflicted a lathi blow on the legs of Natharam. However, in his police statement dated 16.7.92 (Ex.D. 1) which was recorded by the Investigating Officer immediately after registration of the case, the said fact clearly finds mention. At the time of the alleged incident Rajesh was aged about 17 years. As per his statement he has studied upto 5-6 class only. The appellants are his uncles/cousins. In such circumstances, the explanation given by him for the ommissions of the fact that the appellant (Tarachand) had inflicted a lathi blow on the leg of Natharam in written report (Ex.R 15), does not appear to us substantially material and the same is not fatal to the prosecution case. It is also curious to note that this witness has not been cross-examined at all in respect of the alleged overt-acts of appellants causing multiple injuries to the deceased Natharam and Kuamri Santosh. In our considered opinion, the testimony of Rajesh has remained unshaken and unshattered and the learned trial Judge has committed no error in holding him as a reliable witness. 14. In our considered opinion, the testimony of Rajesh has remained unshaken and unshattered and the learned trial Judge has committed no error in holding him as a reliable witness. 14. Kumari Santosh (PW 6) aged about 12 years, was put many questions by the learned trial Judge and on being satisfied, that she was a competent witness and that she knew the importance of the oath, she was administered oath. She has fully corroborated the sworn testimony of Rajesh. She has deposed that on the day of the incident, in the morning her father Natharam, brothers Rajesh and Dharmendra were ploughing their field and that in respect of `Janti tree' there was an exchange of hot words between them and appellant Pyarelal, that in the evening, while they were returning form their field for their house and passing through the field of Arjunram (PW 1), the appellants, who were armed with `farsi', lathi and gandasi, came there and told her father "Aaj Tere Ko Janti Katwante Hai", that thereafter Tarachand gave a lathi blow on her father, who fell down, that Pyarelal gave a `Farsi' blow on his head causing injuries from which the blood oozed out and that Deshraj and Ranveer also dealt `gandasi' blows to her father. She has further deposed that when Rajesh tried to rescue Natharam, appellant Tarachand dealth a lathi blow on his head and that when she also tried to rescue her father appellant Tarachand inflicted a lathi blow causing injuries on her right hand. She has stated that her father died then and there due to multiple injuries sustained by him, that thereafter appellants dragged his dead body to the house of appellant Pyarelal, that due to the fear of appellants, they remained near the dead body of her father in the night, that Rajesh scribed written report (Ex.P. 15), and that in the morning they proceeded to Nawalgarh, where Rajesh submitted the said report. In her cross-examination, she has specifically stated that Pyarelal had dealt many `Farsi' blows on Natha Ram causing multiple injuries, and that Natharam was bleeding profusely. However she admitted that she did remember as to who amongst the appellants had caught hold of the hands of the deceased, while dragging his dead body. In her cross-examination, she has specifically stated that Pyarelal had dealt many `Farsi' blows on Natha Ram causing multiple injuries, and that Natharam was bleeding profusely. However she admitted that she did remember as to who amongst the appellants had caught hold of the hands of the deceased, while dragging his dead body. She was confronted to her police statement (Ex.D. 2) regarding the motive wherein it has been specifically mentioned that there was an exchange of hot words between Natharam and the appellant Pyarelal in respect of a Janti tree. It is true that in her police statement (Ex.D. 2) it has not been specifically mentioned that at the time of incident appellants had shouted, "Aaj Tumhe Janti Katwanyege". Since in her police statement (Ex.D. 2) she has stated about the dispute regarding "Janti" tree and exchange of words between the parties and in written report (Ex.R 15) also the fact that appellants had shouted "Aaj Tumhe Janti Katwanyege" finds mention, to our mind, Kumari Santosh has not made any material improvement in the prosecution story during trial. This witness has also been subjected to searching cross-examination, which she has fared valiantly. Again, no question has been put in her cross- examination regarding the overt-acts of the appellants. Hence in our considered opinion, she is a reliable and trustworthy witness and she has proved the substratum of the prosecution story. 15. Dr. Ganesh Ram Gupta (PW 8), who conducted the medico- legal autopsy, has given details of the injuries sustained by the deceased and proved the post mortem examination report (Ex.P. 18). He has deposed that the injuries sustained by Natharam, were ante mortem, that the cause of the death was haemorrhagic shock secondary to the injuries to lung, kidney and the head and that those were sufficient in the ordinary course of nature to have caused the death. 16. Dr. Ganeshram Gupta (PW 8) has also proved injury reports (Ex.R 20 & R 21 respectively) of Kumari Santosh (PW 6) and Rajesh (PW 5). He has stated that he found a bruise 3 x 1 cm. on front of middle ⅓ of right forearm of Kumari Santosh, and a contused swelling with tenderness 4x3 cm. on posterior lateral to right forearm in lower ⅓, a lacerated wound 4 x 1 x 1 cm. on right parietal occipital abrasion 1/2 x 11/2 cm. He has stated that he found a bruise 3 x 1 cm. on front of middle ⅓ of right forearm of Kumari Santosh, and a contused swelling with tenderness 4x3 cm. on posterior lateral to right forearm in lower ⅓, a lacerated wound 4 x 1 x 1 cm. on right parietal occipital abrasion 1/2 x 11/2 cm. on back of left medial malleoulus and a bruise 2 x 2 cm. on left illiac fossa of Rajesh, and that all those injuries were simple in nature and caused by blunt object. Thus, the testimony of Rajesh (PW 5) and Kumari Santosh (PW 6) stands substantially corroborated by the medical evidence. 17. Harchand (PW 2), Ram Karan (PW 3) and Bhagwan Singh (PW 11), SHO, have proved the Panchayatnama and memo of dead body of Natha Ram (Ex.R 3 and R 4 respectively), seizure memo of blood stained soil and that of controlled sample lifted from the place of occurrence (Ex.R 5) and seizure memo (Ex.R 6) of blood stained clothes of deceased. 18. Bhagwan Singh (PW 11) has also proved the arrest memos of the appellants as also information memos of appellants Pyarelal, Ranveer and Tarachand marked Ex.R' 25, 26 & 27 respectively. He has deposed that appellant Pyarelal in pursuance to his information (Ex.P. 26) got recovered `farsi' from his house vide recovery memo (Ex.R 9), which stands duly proved by the statements of motbirs Harchand (PW 2) and Ramnath (PW 4). Similarly, the recovery memos of lathi and 'gandasi at the instance of the appellants Tarachand and Ranveer in pursuance to their respective informations (Ex.R 27 and R 28) vide recovery memos (Ex.P 10 & R 11) respectively also stand well pioved from the testimony of Bhagwan Singh (PW 11) and the motbirs Harchand (PW 2) and Ramnath (PW 4). Since the report of the Forensic Science Laboratory was not received during the trial, the recoveries of the aforesaid weapons do not connect the appellants with the crime. 19. In our considered opinion, the learned trial Judge has discussed, analysed and evaluated and evidence recorded in this case in a right perspective. 20. Now, we proceed to deal with the submissions made on behalf of the appellants. 21. The alleged incident took place on 15.7.92 at 7.30 PM. Rajesh (PW 5) and Kumari Santosh (PW 6) were of tender age and had also received injuries. 20. Now, we proceed to deal with the submissions made on behalf of the appellants. 21. The alleged incident took place on 15.7.92 at 7.30 PM. Rajesh (PW 5) and Kumari Santosh (PW 6) were of tender age and had also received injuries. The assailants were their uncles/cousin. After the incident it had grown dark. Rajesh went to the village and informed about the incident to villagers. During the night, he alongwith others remained near the dead body of Natha Ram, which was dragged and placed by the appellants in the court yard in front of the house of appellant Pyarelal. He alongwith Santosh (PW 6) reached the police station Nawalgarh next day at 11.30 A.M. The police station Nawalgarh is at a distance of 16 kms. from the place of occurrence. Therefore, in our considered opinion, the delay in filing the FIR has been well explained and on this count, the prosecution case cannot be thrown over-board. 22. From the evidence recorded in this case, it stands well established that there was a dispute about 1 `Janti' tree, which was standing on the border of the fields of the deceased Natharam and the appellants and that there was also an exchange of hot words between them in the morning on that day. When Natharam was returning from his field, the appellants attacked on him saying, "Aaj Tumhe Janti Katwate Hal". It is true that this motive is not so long, but when there is unimpeached occular evidence against appellants to the effect that they indiscriminately inflicted injuries on Natha Ram resulting in his instantaneous death, the factor of motive pales into insignificance. Therefore, the contention of Shri Biri Singh on this count looses ground and the same stands repelled. 23. The appellants were armed with formidable weapons like `farsi', 'lathi' and 'gandasis'. They had collected together at the place of occurrence. They inflicted injuries on the person of Natha Ram, who had fallen down after receiving lathi blow on his legs, which was dealt by the appellant Tarachand. Natha Ram received multiple injuries on:his vital parts including head, lung and kidney, with the result he succumbed to his injuries then and there. From the evidence recorded in this case, It also stands well proved that after Natha Ram had died, the appellants dragged his dead body and brought the same near the house of appellant Tarachand. Natha Ram received multiple injuries on:his vital parts including head, lung and kidney, with the result he succumbed to his injuries then and there. From the evidence recorded in this case, It also stands well proved that after Natha Ram had died, the appellants dragged his dead body and brought the same near the house of appellant Tarachand. This fact has been well proved by the testimony of Bhagwa Singh (PW 11), Investigating Officer, who while inspecting the site had found the marks of dragging from the place of occurrence situated in the field of Arjun Ram (PW1) to the courtyard outside the house of the appellant Tara Chand. The aforementioned well proved overt-acts of appellants unmistakably show that they had common intention to commit the murder of Natharam and also to cause injuries to Rajesh and Kuman Santosh, who had tried to rescue their father Natharam. 24. Now, we deal with the defence taken on behalf of the appellants. All the appellants in their plea recorded under Section 313, Cr.RC. have denied the circumstances appearing against them in the prosecution evidence. Appellant Pyarelal has asserted that at the time of the alleged incident, he was not present at his house, that appellant Tarachand's daughter (whose name has not been given) used to cook his meals, that deceased Natharam, who had consumed liquor and was under intoxication came to his house and tried to molest Tarachand's daughter and that thereupon, Tarachand's wife Smt. Patasi inflicted `gandasi' blows causing injuries to Natharam. He further stated that at that time Arjunram (PW 1) and Lekhram also came there, who had asked him to go to the police station Nawalgarh, where he had reported the said incident. He further stated that next day morning he had come with the police to his village. However, appellants Tarachand and Ranveer have not stated anything about the said defence story. The appellants have also neither examined Tarachand's daughter nor Smt. Patasi nor filed the alleged report. On the other hand, Bhagwan Singh (PW 11) SHO, haas categorically denied that appellant Pyarelal had come to police station Nawalgarh on the night of 15.7.92 and reported that the deceased Natharam had entered into Tarachand's house and tried to molest latter's daughter. He has deposed that no such report was lodged by appellant Pyarelal. 25. On the other hand, Bhagwan Singh (PW 11) SHO, haas categorically denied that appellant Pyarelal had come to police station Nawalgarh on the night of 15.7.92 and reported that the deceased Natharam had entered into Tarachand's house and tried to molest latter's daughter. He has deposed that no such report was lodged by appellant Pyarelal. 25. It will also be useful to mention that no question regarding the alleged defence version was put to either to Rajesh (PW 5) or Kumari Santosh (PW 6), or Dharmendra (PW 7) or Harchand (PW 2) or Ramkaran (PW 3). As per post mortem examination report (Ex.R 18), the deceased Natharam was aged about 40 years. Hence it also does not appeal to reason that he could have tried to molest his niece i.e. daughter of his real brother appellant Tara Chand. Besides this, no question was put to Dr. Ganesh Ram Gupta (PW 8) on behalf of appellants to establish that deceased Natharam had consumed alcohol. Even in the post mortem examination report, there Is no mention that any alcoholic content were detected in the dead body of Natharam. In such circumstances, it is abundantly apparent that the defence story is patently false, concocted and a creature of an after-thought. 26. Hence, for the reasons mentioned above, the learned trial Judge has not committed any illegality in convicting the appellants for offences under Sections 302/34 and 323/34 IPC, and impugned judgment does not warrant any interference. 27. The upshot of the above discussion is that this appeal fails and the same is hereby dismissed. The conviction and the sentence of appellants under both the counts are hereby maintained. Appellants Pyarelal and Ranveer are in jail. The sentence of the appellant Tarachand was suspended under section 389 Cr.RC. The learned trial Judge shall therefore immediately issue non-bailable warrant against appellant Tara Chand to ensure his commitment to the jail for undergoing the sentence. The Jail authority be also intimated accordingly. The record be sent back to the lower court forthwith.Appeal dismissed. *******