JUDGMENT 1. - The appellant Ram Bharosi was the accused in Sessions case No. 37 of 1992 on the file of the Special Judge-cum-Additional Sessions Judge, Dholpur. He was found guilty U/s. 302 IPC, convicted thereunder and sentenced to imprisonment for life and fine of Rs. 200 (in default to further undergo one month simple imprisonment). 2. Aggrieved by the conviction and sentence the present action for filing the appeal has been resorted to. 3. Brief facts are:- (i) On 12.9.1991 informant Mukesh Kumar (PW 8) lodged a written report (Ex.P. 7) with the Police Station Kotwali Dholpur at 7.30 p.m. stating therein that his great grand father Ram Chandra Solanki Thakur had four sons namely Roop Singh, Murli Singh, Moti Ram and Nihal Singh. Out of them only Murli Singh is alive. Roop Singh and Nihal Singh were unmarried. Murli Singh is survived by his sons Chhitriya, Jagannath Singh and Khabardar Singh and Moti Ram is survived by his four sons namely Hotem Singh, Lakhan Singh, Peetam Singh and Rameshwar Singh. On 12.9.91 at about 4 p.m., he was ploughing his field `Nai-tor-wara' situated in village Daurikepura, by tractor No. RJ-11/0105 belonging to his real uncle Pahad Singh son of his uncle (Tau) was standing on the boundary of his field as he wanted to plough his field by the informant (Mukesh). At the same time Ram Bharosi S/o Khyali Ram S.O. Jodha Ram Tomer, Bhappe S/o Khyali Ram Tomer and Balbir Singh S/o Ram Nath Tomer, inhabitants of Fateh Singh Ka Pura, which is adjacent to his village Daurikapura, armed with Sail (weapon similar to spear), Sword and lathies came over there abusing him and asked as to why he was ploughing the field. At this Pahad Singh interrupted that it was Chhiteriyas field and his son was ploughing. Ram Bharosi, in turn shouted at him that he thinks himself a lion, kill him. Ram Bharosi was armed with sail, Pappu was having a sword and others were armed with lathies. Ram Bharosi, with the intention to kill thrusted sail in the left side of the stomach of Pahad Singh. As a result of which he had fallen down. When the informant attempted to intervene, Pappu inflicted sword blow on his let elbow. Ram Bharosi also inflicted sail blow injuring his right shoulder from the back side. Ram Bharosi, with the intention to kill thrusted sail in the left side of the stomach of Pahad Singh. As a result of which he had fallen down. When the informant attempted to intervene, Pappu inflicted sword blow on his let elbow. Ram Bharosi also inflicted sail blow injuring his right shoulder from the back side. Pahad Singhs daughter Varsha, his brother Chhavi Ram and Ram Het S/o Tej Singh were present there. Ram Het was grazing his buffaloes. Thinking Pahad Singh dead they ran away towards their village Fateh Singh Ka Pura. On hearing hue and cry Peetam Singh and Rakesh Solanki from Daurikapura, came over there. Pahad Singh requested informant for taking him to the hospital. Rakesh, Nar Singh and Jail Singh took Pahad Singh in the Tractor to Marena Hospital but no doctor was present there. Thereafter Nar Singh, Jail Singh and Rakesh took him to Dholpur Hospital in a Bus. The informant went to Police Station Piholi for lodging the report but no police officer was present in the Police Station. Thereafter he went to Dholpur Hospital in a tractor where doctor informed him about the death of Pahad Singh. The informant further stated that his grandfather Roop Singh and Murli Singh had orally mortgaged four bighas and 2 biswas of land with Ram Bharosi, in consideration of Rs. 11,000/- but the amount was paid and mortgage was redeemed. His (informant) father Chhitriy and uncle Jagannath Singh were in the Jail in connection with the suspicious death of his aunt. Taking advantage of the absence of his father and uncle Ram Bharosi committed murder of Pahad Singh and injured him. He was also medically examined and a doctor issued certificate which was annexed with the report. (ii) A case U/s. 302, 302/149, 148, 447, 323, 323/145, 324, 324/149 IPC was registered against the accused persons and investigation commenced. (iii) Charge sheet U/s. 147, 148, 149, 323 324, 447, 302 IPC read with 3/25 Arms Act, was filed In the court of Addl. Munsif and Judicial Magistrate No. 1, Dholpur and the case was committed and ultimately tried by the Addl. Sessions and Special Judge, Dholpur. (iv) Charges U/s. 148, 447, 302, 324/149 and 323/149 and Section 3/25 Arms Act were framed against the accused persons. The accused denied charges and claimed trial. Munsif and Judicial Magistrate No. 1, Dholpur and the case was committed and ultimately tried by the Addl. Sessions and Special Judge, Dholpur. (iv) Charges U/s. 148, 447, 302, 324/149 and 323/149 and Section 3/25 Arms Act were framed against the accused persons. The accused denied charges and claimed trial. (v) The prosecution examined as many as 34 witnesses in support of its case and produced 21 documents. Thereafter statements of the accused were recorded U/s. 313 Cr.PC. The accused did not examine the evidence in defence. (vi) The learned trial court acquitted co-accused persons Khyali Ram and Balbir from all the charges. The accused appellant was also acquitted of the charges U/s. 147, 447, 323/149 and 323/149 IPC and Section 3/25 of the Arms Act but was convicted by the trial court as indicated herein above. 4. Mr. Chatterji, the learned counsel vehemently argued that the findings arrived at by the Learned Trial Judge are contrary to law and deserves to be quashed. He has assailed the judgment of the Trial Judge on the ground that according to FIR (Ex.P 7), the witnesses Peetam Singh, Narain Singh, Jai Singh and Rakesh came after hearing hue and cry and they are not the eye-witnesses of the incident as such their evidence was not reliable. Learned counsel further argued that Mukesh (PW 8) is cousin, Chhavi Ram (PW 16) is the real brother and Varsha (PW 20) is the daughter of deceased Pahad Singh and they are interested and related witnesses and they could not have been relied upon. The Trial Judge has not properly appreciated the statement of Dr. N.S. Sarin (PW 5) who has categorically stated that injury found on the person of the deceased Pahad Singh was not caused by any triangle weapon. The evidence of the Doctor clearly shows that the appellant has not committed the crime. Under such circumstances the conviction of the appellant was bad in law. From the very inception of the prosecution case the complainant party was aggressor and came with a specific story that all the accused persons were armed with different types of weapon and inflicted injuries on the persons including the deceased Pahad Singh where as the Learned Trial Judge came to the conclusion that the version of these witnesses were not reliable qua the co-accused.According to Mr. Chatterji, the learned counsel, father of Mukesh and his uncle Jagannath were in jail in connection with murder of Smt. Maya and because of this enmity the relatives of Smt. Maya were in enmical terms with Pahad Singh. They had motives to kill him and in their place the appellant was implicated falsely though he has not committed any offence. 5. Mr. Agrawal, the learned Public Prosecutor has supported the judgment of the trial Judge. According to him Mukesh is an injured eye-witness, whose testimony was rightly believed by the trial Judge which has been corroborated by other eye-witnesses Varsha and Chhavi Ram. The injuries sustained by Pahad Singh were also corroborated by medical jurist as such the appellant was rightly convicted by the trial Judge. 6. We have given our thoughtful and anxious consideration to the arguments advanced by the learned counsel and perused the record. We are now to determine as to whether the prosecution has proved its case against the accused appellant beyond reasonable doubt. We, therefore, proceed to discuss the origin and genesis of the occurrence. First we take up the evidence of Mukesh Kumar informant (PW 8). He is an injured eye-witness of the occurrence. He has specifically averred that accused appellant Ram Bharosi inflicted injury on the left side of stomach of deceased Pahad Singh by thrusting sail, and we the got down from the Tractor and attempted to save Pahad Singh, appellant Ram Bharosi inflicted sail blow on his right hand and Pappu inflicted sword blow on his left elbow. According to him, Varsha, Chhavi Ram and Ram Het had seen the incident. The testimony of Mukesh Kumar could not be shattered in the cross-examination. No doubt there are contradictions in his statement but they are not material so as to dis-believe the testimony of this witness. This witness clarified that sail is similar to spear. Though he was subjected to lengthy cross-examination but nothing could be brought out to create doubt about his presence. His presence at the scene of occurrence was natural and injuries sustained by him further strengthened this act that incident took place before his eyes. 7. So far as testimony of Chhavi Ram (PW 14) is concerned the trial Judge has believed him and observed that he was present when the occurrence took place. His presence at the scene of occurrence was natural and injuries sustained by him further strengthened this act that incident took place before his eyes. 7. So far as testimony of Chhavi Ram (PW 14) is concerned the trial Judge has believed him and observed that he was present when the occurrence took place. Chhavi Ram is a child witness and after careful examination of his statement he has been relied upon by the trial Judge.We ourselves have carefully perused the testimony of child witness Chavi Ram. He has stated that Pahad Singh was standing on the boundary of the field and Mukesh was ploughing his field by Tractor. At that time he was also in the field with Varsha. According to him Ram Bharosi after shouting at his brother that he thinks himself as lion, inflicted sail blow on the left side of his stomach, as a result of which, his brother fell down. Ram Bharosi also inflicted sail blow on the shoulder of Mukesh. This witness had identified Ram Bharosi and has corroborated the testimony of Mukesh. His evidence could not be shattered in the cross-examination so as to create doubt about his presence at the place of occurrence. Merely because he is the real brother of the deceased, his testimony cannot be discerned only on this ground. Contradictions in the statement of this witness are not of such nature which persuade us to disbelieve him. We are unable to agree with the contention of learned counsel for the appellant that child Chhavi Ram was not present at the spot and that he was a tutored witness. 8. Varsha (PW 20) is also a child witness. Her eye/witness account was critically examined by the trial Judge, who found her a reliable witness. We have also perused her statement in which she stated that she had seen Ram Bharosi inflicting sail injury on the person of her father and on her uncle who attempted to save her father. Undoubtedly she is the daughter of the deceased but she can not be termed as a chance or interested witness. She has corroborated the statements of Mukesh Kumar and Chhavi Ram. We are unable to persuade over selves with the contention of the learned counsel that as she has disowned material parts of her earlier statement recorded under section 161 Cr. PC she cannot be believed. She has corroborated the statements of Mukesh Kumar and Chhavi Ram. We are unable to persuade over selves with the contention of the learned counsel that as she has disowned material parts of her earlier statement recorded under section 161 Cr. PC she cannot be believed. In our considered view her testimony could not be shattered in the cross-examination. 9. Now we take the testimony of Dr. N.S. Sarin (PW 5). He medically examined Mukesh Kumar (PW 8) on 12.9.91 and drawn injury report. (Ex.P 1), according to which Mukesh Kumar sustained following injuries:- (i) Penetrating wound 2cm x 2cm bond deep. (ii) Incise wound 1 inch x 1/4 inch muscle deep. On 13.9.91 he conducted post-mortem of the body of deceased Pahau Singh. According to post-mortem report deceased sustained following injuries:- (i) Penetrating wound 3cm x 3cm over lumber region of abdomen 3 inch lateral to imblicies. (ii) Abrasion 4cm x 2cm on the middle of right back. According to him the death was caused by rupture of left kidney leading to hemorrhage and shock. The injuries sustained by the deceased, according to him, were sufficient in the ordinary course of nature to cause death. The injuries were ante mortem in nature. Mr. Chaterjee, learned counsel with his usual eloquence has submitted that penetrating wound sustained by the deceased could not have been caused by sail (spear) but was resulted by some other weapon and the prosecution has failed to connect the injury with the weapon of offence. We do not find substance in the argument of the learned counsel. In the cross examination Dr. N.S. Sarin categorically stated that the injury sustained by Pahad Singh was caused by a pointed weapon and not by a triangular weapon. 10. Radhey Shyam (PW 34) investigating officer stated that on the basis of information given by Ram Bharosi (appellant) he got recovered `sail'. Information given U/s. 27 of the Evidence Act was recorded as Ex.P 12 and recovery memo (Ex.P 17) was drawn. Site plan (Ex.P 14) of the place of occurrence was also prepared by him. Mr. Chaterjee has drawn our attention towards the site plan and pointed out the infirmities of the prosecution. According to him the I.O. has not shown the places in the site plan from where the witnesses had seen the incident. Site plan (Ex.P 14) of the place of occurrence was also prepared by him. Mr. Chaterjee has drawn our attention towards the site plan and pointed out the infirmities of the prosecution. According to him the I.O. has not shown the places in the site plan from where the witnesses had seen the incident. He has also drawn our attention towards this aspect that no blood was found at the place of occurrence. We have thoroughly examined the site plan and the statement of I.O. For this we can only say that certainly there are lapses on the part of I.O. in preparing site plan, which has been drawn in a casual manner but merely because there are infirmities in the site plan it can not be said that the case of the prosecution has become doubtful. In this case the witnesses Mukesh Kumar, Chhavi Ram and Varsha are of sterling worth and their statements can not be rejected on the ground that I.O. had not marked the places in the site plan, from where these witnesses were standing at the time of the occurrence. We may stated that the I.O. did not call Mukesh, Chhavi Ram and Varsha at the time of preparing site plan. It was drawn at the instance of witness Rakesh in the presence of Motbirs Harbhan and Ram Veer. As such testimony of Mukesh, Chhavi Ram and Varsha can not be disbelieved on the ground of infirmities in the site plan. 11. Evidence of Ram Het (PW 19) who was named in the FIR was rightly discarded by the trial Judge as there were material contradictions in his statement. 12. Lastly Mr. Chatterjee, learned counsel, contended that witness Mukesh Kumar should not be believed on the ground that his statement was not believed by the trial court qua other co-accused Khyali Ram and Balbir. As stated earlier, Mukesh Kumar (PW 8), the first informant, has given a cogent and consistent version of the occurrence. Though he was subjected to lengthy cross examination but nothing has been elicited from his testimony which may in any way affect his credibility. His testimony has received corroboration from other eye-witnesses Varsha and Chhavi Ram in all material and broader aspects. Though he was subjected to lengthy cross examination but nothing has been elicited from his testimony which may in any way affect his credibility. His testimony has received corroboration from other eye-witnesses Varsha and Chhavi Ram in all material and broader aspects. Though he is related to the deceased and therefore can be said to have an interest in the prosecution but his evidence stood close judicial, scrutiny and his testimony inspires confidence. Of course, at the trial he had also named other co-accused persons who have acquitted by the trial Judge but on account of mere acquittal of some of the co-accused nominated by him as being present along with the appellant at the time of occurrence, is not enough to dis credit his evidence. He is an injured eye witness and we are unable to agree with the contentions of the learned counsel. Having regard to the fact that Mukesh Kumar, Varsha and Chhavi Ram were closely related to the deceased we have considered and assessed their evidence with more than ordinary care and caution. Having done so we do not find any reason for disbelieving them. We find that evidence of Mukesh, stands fully corroborated by the FIR which was lodged by him within three and half hours of the incident (though Police Station was 27 kilometer away from the place of occurrence) and contains the substratum of the entire prosecution case. So far as the other two eye witnesses Varsha and Chhavi Ram are concerned we find that their evidence is quite consistent and acceptable. Their presence in the field with the deceased, was quite natural. 13. From the discussion that has been made herein above, it is clear that accused appellant is responsible for the murder of Pahad Singh and therefore, we hold that he has been rightly convicted for the offence U/s. 302 IPC by the trial court.In the result, the appeal is dismissed :Appeal dismissed. *******