JUDGMENT 1. 1. This appeal is directed against the judgment of Additional District Judge, Nohar, District, dated 23.7.2002 whereby, the appellants Ram, Bhala Ram, Krishan and Mahaveer Singh have been convicted and sentenced to life imprisonment under Section 302/34 IPC and a fine of Rs. 1000/- and in default of payment to further undergo one year's rigorous imprisonment, under Section 325/34 IPC, two years' rigorous imprisonment and fine of Rs. 5000/- and in default of payment of fine to further three months' rigorous imprisonment, under Section 458 IPC, ten years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment, under Section 460 IPC, ten years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment to further undergo one year's rigorous imprisonment, under Section 394 IPC, seven years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment to further undergo one year's rigorous imprisonment. 2. The facts of the case so far as they are relevant for the purpose of disposal of this appeal may be summarised as below:- The complainant Smt. Girdavari wife of decease Omprakash on 2.11.1998 at 8.30 a.m. lodged an oral First Information Report at Police Station, Nohar that appellant Bhinya Ram alongwith Malka Godara, Krishan and three other persons came to her residence at about 12 in the mid - night between 1.11.1998 and 2.11.1998. Bhinya at Krishan were armed with lathis and Malka Godara was armed with 'Kulhari'. They started beating Omprakash and his mother Sarbati, who were sleeping. It was also stated in the FIR that all these persons came into the house by jumping over the boundary wall with intention to kill and due to the injuries inflicted on Omprakash and Sarbati, both succumbed to the injuries. While going back from the place of incident, they also broke open the box lying in the house of deceased Omprakash and took away Rs. 40,000/-, silver ornaments and 'Kara' worn by deceased Sarbati weighing about 5 kgs. They also shouted that they have already killed Jagdish in the fields and these two persons have and thus, they have taken revenge for the dispute about the land, which was going on between them. According to the said FIR, the appellant Bhinya Ram is the real brother of deceased Omprakash and son of deceased Sarbati. 3. They also shouted that they have already killed Jagdish in the fields and these two persons have and thus, they have taken revenge for the dispute about the land, which was going on between them. According to the said FIR, the appellant Bhinya Ram is the real brother of deceased Omprakash and son of deceased Sarbati. 3. The learned trial Court tried the four accused persons namely Bhinya Ram s/o Manphool Ram, Bhala Ram s/o Rawata Ram, Krishan s/o Girdhari and Mahaveer Singh s/o Badri Prasad for various offences mentioned above. The accused persons Bhinya Ram, Bhala Ram, Krishan and Mahaveer Singh were not found guilty for offences under Sections 149 and 396 IPC. However, they were convicted under Sections 325, 323, 324, 458, 460, 394, 397 and Section 302 read with Section 34 IPC. However under Section 148 & 396 IPC, they were acquitted. The different sentences awarded by the trial Court were ordered to run concurrently. 4. We have heard learned counsel for the appellants as well as learned Public Prosecutor and perused the record. 5. During trial, the prosecution has examined as many as 18 witnesses and produced 62 documents vide Ex.P/1 to Ex.R62 in support of prosecution case. The Accused - Petitioners have produced two witnesses in their defence. 6. RW.1 Girdawari w/o Omprakash (deceased) in her statement recorded on 12.8.1999 stated that when she alongwith her mother in-law Sarbati, husband Omprakash and sister Vimla, who was married to another brother Jagdish alongwith children were sleeping in their residence on the date of incident and the deceased Omprakash was sleeping in the courtyard besides his mother, six persons jumped from the western wall of the house including appellants Bhinya Ram, Krishan and Malka Ram. Bhinya Ram was armed with lathi, Krishan was armed with lathi and Malka Ram was armed with 'Kulhari'. They started beating her husband Omprakash, who was sleeping at that time and when she and her mother-in-law wanted to run away from the side, they also started beating them and due to the injuries caused on the person of Omprakash and Sarbati, they died. They started beating her husband Omprakash, who was sleeping at that time and when she and her mother-in-law wanted to run away from the side, they also started beating them and due to the injuries caused on the person of Omprakash and Sarbati, they died. On account of the information given by the assailants only that they had also killed Jagdish, who was sleeping in the fields for taking care of the fields on the fateful night, Vimla w/o Jagdish alongwith their neighbor Sudhir went in a jeep to the fields where the said person Jagdish was lying seriously injured and he was brought to the hospital where RW. 1 Girdawari and said Jagdish were treated. In her statement, she has further stated that assailants did not allow Omprakash to even rise from his bed. According to the said prosecution witness, there was a dispute of the land between the family members of Omprakash and Bhinya Ram. 7. RW. 2 Smt Vimla w/o Jagdish has also supported the prosecution version and has stated in her statement that Bhinya Ram, Krishan and Malka Ram with three other persons came to their house armed with the weapons and caused injuries to deceased Omprakash and Sarbati and thereafter, they also broke open the box and took away a valuable and also 'Kara' being worn by the mother Sarbati. 8. RW.3 Jagdish, the injured in the another incident which took place at the fields also stated in his statement recorded on 2.1.2000 that appellants Bhinya Ram, Krishan, Dileep and three other persons came at about 11 p.m. in the night to his fields where he alongwith his daughter Sunita were sleeping taking care of the fields and these persons armed with lathis and 'Kulhari' came and inflicted injuries on him and after about two and half hours to three hours, his wife Vimla came with Sudhir s/o Mahaveer and they took him in the jeep and on the way to home, they also informed that the same persons had killed Omprakash and his mother Sarbati and when he reached home, he found the said information to be true. 9. RW. 11 Dr. Hanuman Prasad and RW. 12 Dr. Chandra Kumar have also been examined. 9. RW. 11 Dr. Hanuman Prasad and RW. 12 Dr. Chandra Kumar have also been examined. The post mortem report of the deceased Om Prakash s/o Manphool Ram, aged 24 years indicates that there were as many as 12 injuries on the body of deceased Omprakash, which are as under:- (1) Abrasion 3 x 1 cm. present at posterolateral part of right side of neck. (2) Bruises - 30 x 4 cm.) 15x4 cm.) in different directions present. 12x3 cm.) at upper and middle of back region. 12x3 cm.) left scapular region. 10x2 cm.) 5x2 cm.) (3) Bruise - 10x4 cm. at left gluteal region obliquely placed. (4) Bruise - 10x5 cm. at right gluteal region obliquely placed. (5) Bruise - 10x5 cm. at right thigh postero lateral part in middle region. (6) Bruise - 12 x 4 cm. at left thigh obliquely presents, on antero - lateral part. (7) Incised wound - 2 cm. x 1 cm. x muscle deep at right arm. 3 cm. above from elbow. (8) Incised wound - 2 x 0.5 x muscle deep, present at, 5 cm. below from elbow joint at anterio surface of forearm left. (9) # of left F.A. present in middle region deformity. (10) Incised wound 1 cm. x 0.5 cm. x muscle deep present at left Deltoid region. (11) Abrasion - 5x2 cm. present at front of chest in middle region. (12) Abrasion at upper addomen 5 x 1 cm. present. 10. The cause of death given by the two doctors Dr. Chandra Kumar and Dr. Hanuman Prasad shows that all the anti - mortem injuries and laceration of left lung and laceration of left side of brain causing neurogenic and haemorrhagic shock, leading to cardio - respiratory failure and ultimately death was the cause of the death of Omprakash. 11. As many as 11 injuries were found on the body of Sarbati w/o Manphool Ram also resulted in death of Sarbati for same reasons. The injuries found on the body of Sarbati are as under:- (1) Bruise 20 cm. x 1 cm. obliquely placed at upper and middle of back region. (2) Bruise 8 cm. x 2 cm. at left back region, transversely placed, 10 cm. above from the iliac crest. (3) Bruise - 10 cm. x 3 cm. middle back region. Transversely placed. (4) Bruise 10 cm. x 2 cm. x 1 cm. obliquely placed at upper and middle of back region. (2) Bruise 8 cm. x 2 cm. at left back region, transversely placed, 10 cm. above from the iliac crest. (3) Bruise - 10 cm. x 3 cm. middle back region. Transversely placed. (4) Bruise 10 cm. x 2 cm. on left side of middle of back region obliquely placed. (5) Bruise - 12 cm. x 5 cm. at right glenteal region, obliquely placed. (6) Bruise - 10 cm. x 2 cm. at right upper and lateral part of thigh obliquely placed. (7) Bruise - 5 cm. x 2 cm. at posti part of right knee transversely placed. (8) Deformity, ill defined swelling lower femur, # femur present at lower end. (9) Deformity of right F.A. at upper part and lower part of right F.A. swelling. (#present at upper end and lower end of F.A.) (10) Lacerated wound 5cm. x 1 cm. x skin deep present at lateral surface of right F.A. in middle region. (11) Incised wound 2 cm. x 1 cm. x muscle deep clotted blood present at left supraseapular region." 12. These injuries and postmortem reports have been by Dr. Hanuman Prasad Rohilla RW. 1 and Dr, Chandra Kumar, RW. 12 respectively. 13. While accused persons Bhinya Ram and Krishan have been consistently named by all the prosecution witnesses, who inflicted the said injuries on the body of deceased Omprakash and Sarbati, there are some inconsistencies pointed out about other two accused persons namely Mahaveer Singh and Bhalla Ram. 14. P.W. 1 Girdavari in the first instance did not even name Mahaveer Singh, however, in the later part of her statement, she has stated that Malka Ram and Mahaveer Singh both inflicted injuries on Omprakash by 'Kulhari' but, she was not sure as to on which part of the body of Omprakash they inflicted the said injuries. Similarly, she was not sure as to who had inflicted lathi blow on the deceased Omprakash. It may be noticed here that RW. 1 Girdavari was an eye witness of the entire incident. Likewise, P.W. 2 Vimla attributes 'Kulhari' as the weapon with both the accused Mahaveer Singh and Bhala Ram. Similarly, she was not sure as to who had inflicted lathi blow on the deceased Omprakash. It may be noticed here that RW. 1 Girdavari was an eye witness of the entire incident. Likewise, P.W. 2 Vimla attributes 'Kulhari' as the weapon with both the accused Mahaveer Singh and Bhala Ram. She attributes the injuries on the body of deceased Sarbati by lathi to Bhinya Ram and when her sister Girdavari came towards the door, Bhinya Ram had hit her with lathi and Bhala Ram with 'Kulhari' by which she was injured. In the Identification Parade also, RW. 2 Vimla is said to have not identified the accused Mahaveer Singh and this is clear from the cross-examination of the said witness, who was also an alleged eye witness. 15. RW. 3 Jagdish, brother of deceased in his statement also stated that Bhinya Ram, Krishan and one Dilip alongwith three other persons whom he did not name came armed with lathis and 'Kulhari' and inflicted injuries upon him. The said person Dilip does not appear to have been tried for the said offences. The said witness in his cross-examination has also admitted that he came to know ihe name of Malka Ram and Mahaveer Singh only when the police arrested the said persons. 16. The description of injuries on the body of the deceased Omprakash and Sarbati also shows that they are mostly bruises and abrasions or lacerated wounds except injury no. 7 and 8 on the body of deceased Omprakash and that too 2 cm. x 1 cm. muscle deep at right arm and 2 cm. x .5 cm. x muscle deep present at 5 cm. below from elbow joint at anterior surface of fore-Arm left. The possession of 'Kulhari' is attributed to Mahaveer Singh and Bhalaram. The cause of death has been stated by the medical experts to be neurogenic and hemorrhagic shock, leading to cardio respiratory failure. 17. Learned counsel for the appellants has urged that the case against Mahaveer Singh is based on the evidence of identification which is weak in its nature. He has only been identified by injured Jagdish. The injured Jagdish can be a witness of injuries being inflicted on him. The second part of the incident in which Sarbati and Om Prakash are alleged to have died, Jagdish was not present there. He has only been identified by injured Jagdish. The injured Jagdish can be a witness of injuries being inflicted on him. The second part of the incident in which Sarbati and Om Prakash are alleged to have died, Jagdish was not present there. Therefore, the identification of Mahaveer Singh by Jagdish can at best go the extent of his implication where Jagdish was inquired (sic injured). His participation by this identification cannot be linked to his complicity wherein, Om Prakash and Sarbati died. The eye witness of the occurrence of death of these two deceased have not identified Mahaveer Singh. Merely by saying that after the occurrence took place, wherein Jagdish sustained injuries, he must have accompanied other accused persons would be presuming too much in favour of the prosecution case and, therefore, the learned counsel urged that the case of the prosecution should be held to have been not proved against Mahaveer Singh. Unless the accused Mahaveer Singh is connected with the crime by positive identification of those witnesses who had seen the occurrence of the death of Sarbati and Om Prakash, his implication in the offence of murder cannot be read. 18. Learned counsel further asserted that Bhala Ram accused was not named in the FIR and his complicity only comes up when witnesses of the occurrence identified him. His identification is not free from doubt as he is alleged to have been shown to the witnesses while he was in police custody. Once, when accused is shown to the witnesses, chances of his being identified correctly are left out and in that background, the implication of Bhala Ram stands excluded. Learned counsel for the accused further stated that the deep seated enmity in between the parties could be responsible for the incident but then such kind of enmity is double edged sword. The witnesses had not known the accused and they have falsely implicated the accused persons. Therefore, this could be a case of false implication by mistaken identity on the basis of the belief which the witnesses had nursed against the accused persons believing that due to deep seated enmity between the parties, crime has been committed by Bhinya Ram and Krishan. The witnesses have not been able to give graphic account of the incident. The allegations are omnibus and implication is general. 19. The witnesses have not been able to give graphic account of the incident. The allegations are omnibus and implication is general. 19. Per contra, learned Public Prosecutor urged that a^far as the accused Bhinya Ram and Krishan are concerned, there is no mistaken identity. Accused Bhala Ram has been identified by all the three witnesses including the injured witnesses. There was no reason to implicate these persons falsely and in that view of the matter, the implication of this accused also cannot be ruled out. Mahaveer Singh has also been identified by the injured Jagdish and in that view of the matter, when the first incident occurred at the field where, Jagdish was given beating and thereafter the accused had gone to the house, where they committed the murder of Sarbati and Om Prakash, ordinarily it is expected that they accompany other accused persons and, therefore, in that light of the matter, the implication of accused Mahaveer Singh is also established. All the accused have been rightly convicted by the trial court. 20. We have given our thoughtful consideration and have perused the record. As far as the implication of accused Mahaveer Singh is concerned, his implication to the extent of giving beating to Jagdish cannot be doubted as Jagdish has identified and he has urged that he has caused injuries to him. To that extent, this accused cannot be held to be not involved in the incident. As regards his participation in causing injuries to the other victims, his case becomes doubtful because the two witnesses who though injured have not been able to identify this accused at the identification parade and he deserves the benefit of doubt as far as his implication in the second incident is concerned where Sarbati and Om Prakash died. 21. As regards the other three accused persons, Bhala Ram, Bhinya Ram and Krishan, they have rightly been convicted. Bhinya Ram is the part of the family and Krishan is the close relative, therefore, the identification and deposition against them cannot be doubted. Their participation has been spoken by the witnesses unequivocally. These was a motive for these accused persons to have committed this crime and there was no reason why Girdawari PW 1 would not have mentioned the actual assailant of her husband who has succumbed to the injuries sustained by him during the course of incident. Their participation has been spoken by the witnesses unequivocally. These was a motive for these accused persons to have committed this crime and there was no reason why Girdawari PW 1 would not have mentioned the actual assailant of her husband who has succumbed to the injuries sustained by him during the course of incident. The implication of any false person by her on that count is ruled out because she may at best go to add some persons but then she would not be able to spare the actual assailants. Bhinya Ram was the man who bore grudge and who had motive to settle his accounts. He was not happy that the deceased was cultivating the land coming in the share of his mother and therefore, he had a very strong motive of committing the crime alongwith his associates. Thus, the eyewitness's account of the incident stands clearly established against the accused Bhinya Ram and Krishan Ram. 22. Bhala Ram was the accused who was not named in F.I.R. because his name was not known to the witnesses but then, he has rightly been identified by all the three witnesses of both occurrence. That establishes his participation in both the incidents and thus, in view of positive identification by all the three witnesses, his implication is established. The doubts raised against his identity is of no consequence. The identification was conducted by the Magistrate. The Magistrate has clearly spoken that the witnesses have identified the accused persons. Nothing substantial has come on record that there is any substance in the claim of the accused that the deceased were shown to the witnesses. 23. The lathis recovered from the accused persons have been found to be stained with human blood of group D. Thus, there is an added assurance that articles K, L & M lathis were recovered at the instance of these three accused. This acts as an added assurance to the claim of the prosecution. The kulhadi recovered at the instance of Mahaveer Singh have also been found to be stained with human blood of group O, therefore, his implication so far as causing injury to the Jagdish is also established. The recovery of stolen ornaments and money at the instance of accused Bhinya Ram has been believed by the trial court. We also do not see any reason not to believe it. 24. The recovery of stolen ornaments and money at the instance of accused Bhinya Ram has been believed by the trial court. We also do not see any reason not to believe it. 24. Medical report also corroborates and supports the case as claimed by the prosecution. The F.I.R. was lodged as early as it could be, therefore, the incident has been rightly described in the First Information Report and the enmity of the accused persons have been incorporated therein. Therefore, the case of the prosecution stands established in relation to accused Bhinya Ram, Bhala Ram and Krishan. 25. In view of the finding recorded hereinabove, the complicity of accused Mahaveer Singh is limited to the extent of his participation wherein, he has given beating to Jagdish. Therefore, his conviction under Section 323 & 325 IPC is sustained. His conviction under other Sections i.e. 324, 458, 460, 394, 397 & 302/34 IPC are set aside. Two years rigorous imprisonment and a fine of Rs. 500/- was imposed on this accused which he has already served out. In that background, he is not required to be detained in jail. He should be released forthwith, if not required in any other case. As regards the other accused persons Bhinya Ram, Bhala Ram and Krishan, their convictions and sentences are maintained under Sections 323, 325, 324, 458, 460, 394, 397 & 302/34 IPC. Their appeal is dismissed. They will serve out their sentence as awarded by the trial court. Accused-Bhala Ram is on bail. He should surrender before the trial court.Appeal of (i) 'MS' partly allowed (ii) BNR, BR & K dismissed. *******