JUDGMENT 1. - All the four appellants, herein, were put on trial before the Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 8/87 for causing murder of Himmat Singh and simple injuries to PW 8-Roop Singh. The trial ended with conviction of the appellant Narpat Singh under Section 302 Indian Penal Code and rest of the appellants under Section 302 read with Section 34 Indian Penal Code. They also found guilty for causing simple injuries to Roop Singh, but on the basis of compromise, they were acquitted of the charge of causing simple injuries to Roop Singh. Under Section 302 or 302/34 Indian Penal Code they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-. In default of payment of fine to under go further imprisonment for a period of two months. 2. The prosecution case has been extensively set out in impugned judgment of the trial Court and it reveals that house of the deceased Himmat Singh and appellants adjoin each other in village Dhanakiya. In front of their house, there is a Chabutra. As per prosecution case, at around 6 p.m. on October 11, 1986, deceased Himmat Singh was sitting on Chabutra in front of his house and the appellants came there with weapons from their house. They were shouting "Maro-Maro". Appellant, Narpat Singh was having a `Khukri' (Chhuri) while others were having lathis. Himmat Singh was dragged down from Chabutra by them. With regard to actual incident, the prosecution case is that appellant Prem Singh caught legs of the deceased, while Sultan Singh caught his Collar and Prithvi Singh gave a lathi blow on his elbow. Thereafter, the appellant Narpat Singh inflicted blows with `Khukri'. The story further goes that PW 8-Roop Singh reached on the spot in the mean-time on a Scooter and he too was assaulted by them. After assaulting the appellants wanted to run away on a Tractor but the villagers stopped them. Thereupon, they got down from the Tractor and after entering in their house closed it from inside. The motive of the crime is stated that ill feeling had developed between the parties in election of members of the Co-operative Society which had taken place on 4th October. In that election, the appellant Prithvi Singh was a candidate, but the deceased Himmat Singh and Roop Singh had canvassed for Rewat Singh. The motive of the crime is stated that ill feeling had developed between the parties in election of members of the Co-operative Society which had taken place on 4th October. In that election, the appellant Prithvi Singh was a candidate, but the deceased Himmat Singh and Roop Singh had canvassed for Rewat Singh. Prithvi Singh was defeated in that election. He had warned Himmat Singh when he was canvassing for Rewat Singh. 3. A written report of the incident (Ex.R 12) was made by Roop Singh (PW 8) at Police Station, Bagru, immediately after the incident at 7.30 p.m. On this report crime No. 186/96 was registered under Section 307/34 Indian Penal Code. After registration of the crime, investigation commenced. During investigation, the Police prepared Site-Plan (Ex.R 1); seized two pieces of broken Jelly from the place of incident vide memo (Ex.R 3) Blood smeared soil and control soil were seized vide Ex.R 4 and Ex.R 5. A pair of `Chappal' was also seized from the place of incident vide Ex.R 9. Clothes of the injured Roop Singh were seized vide Ex.P. 8 and clothes of Smt. Janak Kanwar wife of the deceased were seized vide Ex.P 10. 4. Himmat Singh was taken to S.M.S. Hospital, Jaipur in a serious injured condition, but on reaching there, the Doctor declared him as dead. The inquest report of the dead body was made at 7.30 p.m. on 12.10.86 and the body was handed over for post mortem examination. PW 17 Dr. B.C. Temani, Medical Jurist, S.M.S. Hospital, Jaipur conducted post mortem of the dead body on 12.10.86 at 9.15 a.m. vide post mortem report Ex.P. 24. The following external injuries were noticed on the dead body : "1. Incised wound 8-1/2cmx2 cm x ribs deep oblique on right side back of chest tailing upwards and medically. Medial end is 3-1/2cm away from mid line and lateral end of the wound is 4 cm below scapular notch. 2. Incised wound 15-1/2cmx4-1/2cmxthoresic cavity transversely and oblique on lower border back of chest left side. Medical end of the wound 1 cm away to mid line. On further dissection, wound is going downwards and inwards obliquely cutting 12th rib dividing it lateromedially and reaching upto vertibra and cutting spinal cord on left lateral side of it, 11th rib was chopped at middle posterior axiliary plane. Medical end of the wound 1 cm away to mid line. On further dissection, wound is going downwards and inwards obliquely cutting 12th rib dividing it lateromedially and reaching upto vertibra and cutting spinal cord on left lateral side of it, 11th rib was chopped at middle posterior axiliary plane. The diaphgram 10x4 cm obliquely cutting the adjoining stentuse of abdominal cavity, this cutting the structures and left kidney on its posterior inferior upper half of it in size 4 cmx2 cm x kidney itself. Margins of above both wounds were regular, well defined and clear cut. 3. Incised wound 2 cmxl cmxmuscle deep semi circular posterior aspect of left elbow. 4. Abrasion 2 cmxl cm right elbow posterior. 5. Injuries No. 1 to 3 were caused by sharp edged weapon while injury No. 4 was by blunt weapon. The doctor opined that injuries 1 to 3 could be caused by `Khukri' (Chhuri). He also opined that injury No. 2 was sufficient to cause death in the ordinary course of nature. 6. The injuries of Roop Singh were examined at 9 p.m. on 11.10.86 by PW 16 Dr. Bhanwar Lal Jhakhar. Following injuries were found on his body vide injury report Ex.R 23 : 1. Incised wound 2.5x0.3x0.3 cm on occipital bone at upper border. 2. Lacerated wound 1.5 x0.5x0.5 cm on left parietal bone. 3. Abrasion 2x0.5 cm on left leg above ankle joint laterally. 4. Bruise 6x2 cm left to upper l/3rd posteriorly. 5. Bruise 5x2 cm left infra scapular region. 7. On completion of investigation, the Police submitted charge-sheet against all the four appellants in the Court of concerned Magistrate. After commitment they were tried, convicted and sentenced as aforesaid. 8. To prove its case, the prosecution examined 19 witnesses. They include PW 3 Bajrang Singh, PW 4 Harbux, PW 7 Trilok Singh, PW 10 Mahaveer Singh and PW 13 Smt. Janak Kanwar, as eye-witnesses of the incident. PW 8 is Roop Singh who came on spot soon after the incident and was belaboured by the accused persons. PW 1 Ramji Lal, PW 2 Bhanwar Singh are the witnesses who reached at the scene immediately after the incident PW 15 Mahendra Singh Gill S.H.O., Police Station, Bagru had investigated the case while PW 7 Dr. B.C. Temani conducted post-mortem of the dead body. PW 16 Dr. Bhanwar Lal Jhakhar had examined the injuries of Roop Singh. PW 1 Ramji Lal, PW 2 Bhanwar Singh are the witnesses who reached at the scene immediately after the incident PW 15 Mahendra Singh Gill S.H.O., Police Station, Bagru had investigated the case while PW 7 Dr. B.C. Temani conducted post-mortem of the dead body. PW 16 Dr. Bhanwar Lal Jhakhar had examined the injuries of Roop Singh. All the appellants pleaded not guilty. They denied prosecution case and the evidence against them. However, no witness was examined in defence. The trial Court, placing reliance on the evidence of eyewitnesses, held the appellants guilty for causing murder of the deceased Himmat Singh holding that the appellant Narpat Singh was responsible for causing incised wound to the deceased which resulted in his death and rest of the appellants shared common intention with Narpat Singh to cause his murder. 9. Coming first to the question of motive, the trial Judge held that prosecution has failed to prove the same by cogent and reliable evidence. He also held that election of Co-operative Society, held on 4.10.86, was not the cause or motive of the crime. PW 3 Bajrang Singh, PW 6 Rewat Singh and PW 11 Hanuman Sahai have stated about the ill-will developed during election of the members of Co- operative Society held on 4.10.86. In the election, Himmat Singh was not a candidate, but he supported Rewat Singh who contested against the appellant Prithvi Singh. To satisfy our judicious conscience we perused relevant evidence to ascertain whether finding of the trial Court on the score of motive can be sustained or not, as a grievance was raised by the Public Prosecutor that motive of the crime is well proved from evidence on record. After scrutinising the evidence on motive, we are satisfied that finding of the trial court on this score is well founded. The prosecution has failed to prove by reliable and convincing evidence that election of members of the co- operative society had created a bad blood or serious enmity between the parties and the accused persons made attack on the deceased on account of defeat of the appellant Prithvi Singh in the said election. The election had taken place on 4.10.86, while the incident occurred at about 6 p.m. on 11.10.86. PW. The election had taken place on 4.10.86, while the incident occurred at about 6 p.m. on 11.10.86. PW. 7 - Trilok Singh, son of the deceased, has admitted in his cross-examination that he came to village Dhanakya from Jodhpur 5-6 days prior to the incident. He used to see his father sitting on `Chabutra' since his arrival in the village and the appellants were also using their `Chabutra' during this period, but he never saw any quarrel, exchange of words or any enmity between them due to the election. Thus, in our opinion, no motive, less to immediate motive of the crime, has been brought on record by the prosecution. 10. Absence of motive, however, is not of much relevance in the instant case, as there is direct evidence of eye- witnesses, relied upon by the prosecution. The motive loses its importance if evidence of the eye-witnesses is found reliable to connect the accused with crime. Therefore, we have to see whether evidence of the alleged eye-witnesses is reliable or not to connect the accused persons with the crime ? 11. Let us first take the case of the appellant Narpat Singh who has been convicted and sentenced under Section 302 I.PC. simpliciter. The prosecution case is that he inflicted repeated blows with a `Khukri' (Chhuri) on the body of the deceased. A perusal of post-mortem report Ex.R 24 shows that the deceased sustained three incised wounds, the description of which has been given in thereport. Doctor B.C. Temani, who conducted post-mortem has opined that the injuries 1 to 3 could be caused by a sharp edged weapon like Khukhri. He also opined that injury No. 2, which is an incised wound 151/2cm x 1/2cm x thoresic cavity deep on lower border of back chest left side, was sufficient to cause death in the ordinary course of nature. So far ocular evidence is concerned, PW. 3 -Bajrang Singh is the first eye-witness of the incident and he has categorically stated that the appellant - Narpat Singh was having a `Khukhri' (Chhuri) and inflicted injuries on the back of right side of chest of the deceased and left side of the chest. He had seen the incident while he was returning to his house from the well. He had seen the incident while he was returning to his house from the well. The name of this witness finds place in the F.I.R. He had also accompanied Himmat Singh when he was taken to Jaipur in a seriously injured condition in the Roadways bus. He admits in cross-examination that the accused persons, the witness Roop Singh, the deceased Himmat Singh and he were from one family. This witness has been cross-examined at length. On careful examination of his evidence we find that it has not been shaken at all so far participation of the appellant Narpat Singh in the incident is concerned. His evidence also gets full corroboration from medical evidence. In our view, the trial Court committed no error in placing reliance on his testimony. 12. Other eye-witnesses of the incident are PW. 7 - Trilok Singh, son of the deceased, RW. 10 - Mahaveer Singh, brother of the deceased and PW. 13 - Smt. Janak Kanwar wife of the deceased. All these witnesses were in the house at the time of incident. After hearing noise, they came out of the house and saw the incident. For Narpat Singh, their evidence is consistent that he was having a Khukri' and inflicted injuries to the deceased. Their evidence is also consistent that first blow was inflicted by him on right side of the back of the deceased, while second blow was inflicted on left side of the chest. Their evidence is corroborated by the medical evidence. The statement of P.W. 7 - Trilok Singh was recorded by the Police the very next day of the incident. He had accompanied his injured father alongwith other villagers, as such, it cannot be said that there was any delay in recording his statement by the Police. The statement of RW. 10 - Mahaveer Singh was recorded by Police on 16.10.86, for which he has given plausible explanation that he had gone to Gangaji with ashes of the deceased and came back in the village on 13.10.86. Similarly, the statement of Smt. Janak Kanwar was recorded on very next day of the incident. 13. After minutely perusing their statements we are satisfied that the trial Judge did no error in placing reliance on their testimony and for holding the appellant Narpat Singh to be the author of the incised wounds sustained by the deceased which resulted in his death. 13. After minutely perusing their statements we are satisfied that the trial Judge did no error in placing reliance on their testimony and for holding the appellant Narpat Singh to be the author of the incised wounds sustained by the deceased which resulted in his death. Their evidence cannot be discarded merely because they happen to be near relatives of the deceased. Their presence at the time of incident is quite natural as the incident took place near Chabutra in front of their house. We find nothing on record that the witnesses had any cause to falsely implicate the appellant Narpat Singh for fatal injuries sustained by the deceased and we are of the opinion that they would be the last person to screen real offender and substitute the appellant Narpat Singh without any reason. 14. Smt. Janak Kanwar had fallen on the body of her husband after he had sustained injuries and her cloths were smeared with blood. The police seized her cloths vide seizure memo Ex.R 10 on 12.10.86 at 9.35 a.m. The cloths were sent to State Forensic Laboratory, Jaipur and vide Chemical Examiner's report, Ex.R 30, her Lehanga and Lugri were found stained with human blood. This evidence also corroborates the evidence of Smt. Janak Kanwar. 15. PW. 4 - Harbux was also examined as eye-witness of the incident. He claims to be present at the spot by chance. From the statement of Trilok Singh it transpires that the witness Harbux had come on scene after infliction of injuries to the deceased. After going through his entire statement critically and taking into consideration the facts and circumstances, we are of the view that perhaps this witness was not present at the time of the incident, but he came later on. We place no reliance on his testimony. 16. Other corroborative evidence on record is the statements of RW. 1 -Ramji Lal, PW. 2 - Bhawani Singh, RW. 8 - Roop Singh. RW. 1 - Ramji Lal and P.W. 2 - Bhawani Singh who had reached on the spot immediately after the incident, and they saw the appellants on the spot, and Narpat Singh appellant was having a knife at that time, while others were having lathies. They were informed there that Narpat Singh had inflicted knife blows to the deceased. Another corroborative evidence is the statement of RW. 8 - Roop Singh. They were informed there that Narpat Singh had inflicted knife blows to the deceased. Another corroborative evidence is the statement of RW. 8 - Roop Singh. Roop Singh had reached at the scene of occurrence soon after the injuries were inflicted to the deceased. His presence cannot be doubted as he too was assaulted by the accused persons. He found the accused persons at the scene of occurrence with weapons and the appellant Narpat Singh was having a knife like Khukri. The report of the incident was immediately made by this witness at Police Station, Bagru. He appears to be an independent witness, being in family of the accused persons and the deceased. The fact that he compromised with the appellants for injuries sustained by him is a factor to indicate that he was not in any way against them to falsely implicate them. Thus, we find that there is over-whelming, cogent and reliable evidence to connect the appellant Narpat Singh with the crime and in our view, the trial Judge has rightly held him responsible for causing incised wounds on the body of the deceased resulting in his death. His conviction under Section 302 Indian Penal Code is well found calling for no interference. 17. Now, we take the case of other appellants. As stated earlier, they have been convicted under Section 302 with the aid of Section 34 Indian Penal Code. It does not appear that they had any serious enmity or grudge against the deceased" to commit his murder. Appellants Prithvi Singh and Prem Singh are real brothers of Narpat Singh-appellant while Sultan Singh appellant is a close relative living in the same house. Hence, the possibility of their implication in the crime by way of exaggeration cannot be ruled out specially when they were also present at the time of incident. As per prosecution case, these appellants were having lathis but, admittedly, Prem Singh and Sultan Singh did not inflict any lathi blow to the deceased. The accusation against them is that Prem Singh caught legs of the deceased, while Sultan Singh caught his collar. One fails to understand that if these appellants had common intention to commit murder of the deceased and were having lathis at the time of incident they would have remained satisfied by mere catching hold of the deceased. They could have used lathis to achieve the result in that situation. One fails to understand that if these appellants had common intention to commit murder of the deceased and were having lathis at the time of incident they would have remained satisfied by mere catching hold of the deceased. They could have used lathis to achieve the result in that situation. Similarly, allegation against Prithvi Singh is that he inflicted a single lathi blow on right elbow of the deceased. As per post-mortem report (Ex.R 24), the deceased had only one abrasion by a blunt object and that too of the size 2 cmxl cm on right elbow. This injury could be caused by a fall or in process of an attempt of the deceased to save him (sic) from the assault. Looking to the size and nature of the injury, attributed to the accused we are not convinced and satisfied that he had come at the scene with common intention to commit murder of the deceased and in furtherance of that common intention he inflicted a simple and minor injury to the deceased. 18. On careful scrutiny of the prosecution evidence it is clear that the evidence implicating appellants Prithvi Singh, Prem Singh and Sultan Singh is not very much convincing. In FIR Ex.R 12 the part of these accused qua the deceased has not been described. No doubt, PW 3 Bajrang Singh in his examination in chief has stated that all the four accused appellants dragged the deceased from Chabutra and thereafter, appellant Prem Singh caught his legs, appellant Sultan Singh caught his collar and the appellant Prithvi Singh inflicted a lathi blow on his right elbow. However, in his Police statement, Ex.D. 3, the above facts have not been stated by the witness. Further, in cross-examination the witness has changed the sequence of the part of these three appellants and states that Prem Singh had caught legs and Sultan Singh had caught collar of the deceased, while he was sitting on Chabutra which is in conflict with his statement given in examination in chief. Then, PW 7 Trilok Singh another eye- witness, has given a conflicting st y about participation of Sultan Singh, Prem Singh and Prithvi Singh. In examination in chief at one stage-he gave out that when he came out of the house after hearing noise he found that ail the accused had surrounded his father beneath `Chabutra'. Then, PW 7 Trilok Singh another eye- witness, has given a conflicting st y about participation of Sultan Singh, Prem Singh and Prithvi Singh. In examination in chief at one stage-he gave out that when he came out of the house after hearing noise he found that ail the accused had surrounded his father beneath `Chabutra'. Then, Prithvi Singh gave a lathi blow on the elbow of his father while Sultan Singh caught his neck. Thereafter, Sultan Singh had caught the collar while Prem Singh caught legs of ihe deceased. This is contrary to the statement of PW 3 Bajrang Singh. This witness again changed his version in cross-examination and states that when he came at the spot, Sultan Singh was holding collar and the appellant Prem Singh was holding legs of the deceased. The witness was confronted from his police statement portion A to B of Ex.D. 7, wherein allegation against Prithvi Singh, Prem Singh and Sultan Singh was that they were assaulting the deceased. In police statement, this witness has not stated accusation against the three appellants as stated in the trial Court. The last eye-witness, PW 13 Janak Kanwar has also come with the story that when she came but of the house, she found all the accused to have surrounded her husband. She did not state that the appellant Sultan Singh and Prem Singh were holding legs and collar of her husband. On the contrary, she further stated in examination-in-chief that all these three appellants had assaulted her husband with lathis which is contrary to the prosecution case and medical evidence. In cross-examination also, she states that all the three appellants were assaulting her husband with lathis. Thus, we find the evidence against these three appellants quite conflicting for their participation and assault to the deceased. PW 7 Trilok Singh has admitted in cross-examination that he always found his father and accused persons using their Chabutra prior to the incident. He did not see any quarrel, exchange of hot words or any enmity between them due to the elections of the co-operative society. It is possible that these three appellants were present at the time of incident, but by mere presence they cannot be convicted for murder with the aid of Section 34 Indian Penal Code. He did not see any quarrel, exchange of hot words or any enmity between them due to the elections of the co-operative society. It is possible that these three appellants were present at the time of incident, but by mere presence they cannot be convicted for murder with the aid of Section 34 Indian Penal Code. In any case, taking into consideration totality of the evidence and all other facts and circumstances, we find it unsafe to maintain convictions of the appellants, Prithvi Singh, Prem Singh and Sultan Singh under Section 302 Indian Penal Code with the aid of Section 34 Indian Penal Code. We think it just and proper to extend benefit of doubt to them. 19. The net result of the above discussion is that this appeal succeeds in part. Conviction and sentence of the appellant Narpat Singh is maintained, while conviction and sentences of the appellants, Prithvi Singh, Prem Singh and Sultan Singh are set aside. They are on bail and need not surrender to their bail bonds. Their bail bonds are cancelled. The appellant Narpat Singh is in Jail. He shall serve out the remaining part of imprisonment awarded to him.Appeal Partly Allowed. *******