JUDGMENT 1. - Challenge in this appeal is to the judgment dated June 18, 2002 of the learned Additional Sessions Judge (Fast Track) Alwar, whereby accused appellants Kaka @ Mandeep, Sachin Srivastava and Happy @ Charanpreet were convicted and sentenced as under Kaka @ Mandeep: U/s. 302/34 IPC to suffer imprisonment for life and fine of Rs. 50001-, in default to further suffer additional rigorous imprisonment for one year. Sachin Srivastava U/s. 302/34 IPC to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer additional rigorous imprisonment for one year. U/s. 364 IPC to suffer rigorous imprisonment for 10 years and fine of Rs. 2000/-, in default to further suffer additional rigorous imprisonment for six months. Happy @ Charanpreet U/s. 302/34 IPC to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer additional rigorous imprisonment for one year. U/s. 364 IPC to suffer rigorous imprisonment for 10 years and fine of Rs. 2000/-, in default to further suffer additional rigorous imprisonment for six months. All the sentences were ordered to run concurrently. 2. It is the prosecution case that on 24.5.2000, while Sardar Singh (PW. 20), SHO, Kotwali Alwar was on petrolling, he came to know about the incident at Atta temple. On reaching at the spot, he came to know that one boy named Pawan Meena was injured and he was taken to hospital. On reaching to the hospital, a written report was handed over to him by Smt. Kamla R/o Nayabas, Alwar stating therein that on that day her son Pawan Meena was at her residence at Mohalla Nayabas around 3.30 PM while Happy Sardar, Sachin Srivastava and Bunti Sardar came on a scooter and by showing sword, knife etc. which they had in their hands, dragged Pawan out of the house and forcibly took him on scooter. She (Smt. Kamla) cried and went running after them and on reaching near Atta temple, she came to know that one boy who was with eight nine other boys, out of them three were 'Sardars' had inflicted injuries to him, was taken to hospital. So, she went to hospital, there she was informed by son of the brother of Justice Yadram that when he was returning after the service of his vehicle, he saw that Pawan was assaulted by eight nine boys and Bunti Sardar. So, she went to hospital, there she was informed by son of the brother of Justice Yadram that when he was returning after the service of his vehicle, he saw that Pawan was assaulted by eight nine boys and Bunti Sardar. Happy Sardar, Sachin Srivastava, Kaka Chunchu, Jitendra and Sushil were amongst them and they were assailing him with swords and knives. In the hospital, she found that her son Pawan had received sword and knife injuries at his stomach, intestines and other parts of his body and he was on the death bed. On receipt of the above written report at 4.00 PM at the General Hospital, Alwar, the same was sent by hand to the police station and a case u/s. 147, 149, 364 and 367 IPC was registered and investigation commenced. Injured Pawan succumbed to the injuries at 5.55 PM and offence u/s. 302 was added. Necessary memos were drawn, statements of the witnesses were recorded and after completion of investigation, charge-sheet was filed. 3. In due course, the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges for the offence under as sections 147, 148, 302 and 364 IPC were framed against appellants Happy @ Charanpreet and Sachin Srivastava while appellant Kaka @ Mandeep was charge-sheeted for the offence under sections 147, 148 and 302 r/w 149 IPC who denied the charge and claimed trial. The remaining two accused appellants Shailesh Srivastava and Jitendra @ Fauzdar who stand acquitted were charge-sheeted for the offence under sections 147, 148 and 302 IPC while accused Chunchu @ Manjeet Singh had absconded and hence against him police had filed chargesheet Ws. 299 Cr.P.C. The prosecution in support of its case examined as many as 21 witnesses, namely; Devi Sahai Meena (PW. 1), Tek Chand Meena (PW. 2), Gopal Sagar (PW. 3), Sushil Kumar (PW.4), Jang Bahadur (PW. 5), Roop Singh (PW. 6), Dhanni Ram (PW. 7), Suresh Chand Meena (PW. 8), Babu Lal Meena (PW. 9), Dr. B.L. Meena (PW. 10), Balwant Singh (PW. 11), Yaduwansh Sharma (PW. 12), Avadesh (PW. 13), Shiv Lal Meena (PW. 14), Lala Ram (PW. 15), Kailash Chand Meena (PW. 16), Raghuveer Singh (PW. 17), Ummed Singh (PW. 18), Yad Ram (PW. 19), Sardar Singh (PW. 20) and Kamla W/o Kailash (PW. 21). In the explanation u/s. 313 Cr.P.C., the appellants claimed innocence. Jagmohan Sharma (DW. 11), Yaduwansh Sharma (PW. 12), Avadesh (PW. 13), Shiv Lal Meena (PW. 14), Lala Ram (PW. 15), Kailash Chand Meena (PW. 16), Raghuveer Singh (PW. 17), Ummed Singh (PW. 18), Yad Ram (PW. 19), Sardar Singh (PW. 20) and Kamla W/o Kailash (PW. 21). In the explanation u/s. 313 Cr.P.C., the appellants claimed innocence. Jagmohan Sharma (DW. 1) and Kuldeep Kumar (DW. 2) were examined in defence on the point that they saw the incident but none of the accused appellants chargesheeted was amongst the assailants. The learned trial Judge on hearing final arguments,while acquitting the other two co-accused, convicted the appellants as indicated hereinabove. 4. Death of Pawan Meena was undeniably homicidal in nature. As per post mortem report (Ex.P. 15), the following ante mortem injuries were found on the dead body 1. Oblique stab wound 3x2 cm x abdominal cavity deep C small gut and omentum coming from wound of Lt. pubic area upper part. Both ends are acute margins clear cut regular C oozing blood. 2. Complete amputation of Lt. hand at level of base of little ring and middle finger C cutting of bones, muscle, tender only a slam and muscle tape attached to rest of hand C fresh clotted blood. 3. Incised wound vertical 2.5 x1cm x MD on Lt. forearm mid ⅓ back C from clotted blood. 4. Oblique incised wound 3x1.5 cm x MD on Lt. buttock medial upper part C fresh clotted blood. 5. Oblique incised wound 4x1.5 cm x MD on Lt. thigh upper ⅓ of lateral C clot. 6. Oblique incised wound 3x1.5 cm x MD on left thigh lower ⅓ laterally C fresh clotted blood. 7. Incised wound 2x1 cm x MD on Lt. leg upper ⅓ ante clot. 8. Trans bluish bruise 6x2.5 cm on elliptical on Rt. knee ant-lat. 9. Vertical brush bruise 10x2.5 cm eliptical Rt. lower back. All injuries are ante mortem in nature, duration of injury No. one to seven is fresh while 8 and 9 within 1-3 days. In the opinion of the Medical Jurist, the mode of death is acute haemorrhage shock brought about as the result of ante mortem injuries to intestines and mesentre blood vessel due to injury No. one which is sufficient to cause death in ordinary course of nature. 5. We have heard the arguments advanced before us and have scrutinised the evidence adduced at the trial. 6. 5. We have heard the arguments advanced before us and have scrutinised the evidence adduced at the trial. 6. On re-appraisal of the prosecution evidence, it revealed that deceased Pawan Meena was abducted from his house at about 3.30 PM on the day of incident in the presence of her mother Smt. Kamla (PW. 21). Smt. Kamla (PW. 21) deposed that three persons had come on scooter and when her son Pawan was forcibly taken on scooter and when her son Pawan was forcibly taken on scooter he cried to her that Happy, Kaka and Sachin were taking him. So, she also cried and went after them. Then Chetan came to her and he followed them. When she went ahead, she saw a 1 crowd and she told them as to what had happened. When she reached near Atta temple, Chetan told her that Pawan was assailed with sword and knives by Happy, Kaka, Sachin, Shailesh, Jitendra and Chunchu. From there she went to hospital and she found that the intestines of Pawan had come out and his left hand was cut off and he died in the hospital. The doctor asked her to go out and then she lodged report (Ex.P. 8) to the police and the report was written by Suresh against the persons named by her. 7. From the statement of Smt. Kamla (PW. 21), it is revealed that she had not witnessed the occurrence taken place at the temple of Atta and she was told by Chetan as to what happened. From the evidence adduced, it revealed that prosecution had failed to produce Chetan as a witness in the . In this regard, learned Public Prosecutor submitted that though Chetan Meena was produced but he was in fact not an eye witness to the occurrence and had reached at the place of occurrence after it was over and Pawan Meena was already shifted to the hospital. According to the prosecution case, in fact Pawan Meena deceased was taken to hospital by Gopal Sagar Saini (PW. 3) and Yaduvansh Sharma (PW. 12) who were eye witnesses to the occurrence. But both these witnesses did not support the prosecution version and were declared hostile. Gopal Sagar Saini (PW. According to the prosecution case, in fact Pawan Meena deceased was taken to hospital by Gopal Sagar Saini (PW. 3) and Yaduvansh Sharma (PW. 12) who were eye witnesses to the occurrence. But both these witnesses did not support the prosecution version and were declared hostile. Gopal Sagar Saini (PW. 3) deposed that when he reached at the Atta temple, he saw crowd over there and deceased Pawan was lying in a pool of blood so he took him to the hospital but he expressed his ignorance as to why he was bleeding and also refused to recognise the accused persons in the . Likewise, Yaduvansh Sharma (PW. 12) also deposed that when he went to the place of occurrence at Atta temple, there he saw a crowd and found Pawan Meena lying there but denied to have seen the accused persons assailing him. The prosecution examined Avadesh Singh (PW. 13) as an eye witness to the occurrence but he was declared hostile as he deposed that when he reached near Atta temple he saw crowd there and a boy whose hand was cut off was being taken to hospital and on going nearer he recognised Pawan Meena and then he went to inform at his house. He has denied the suggestion by the prosecution that he had seen the accused persons assailing the deceased. Suresh Meena (PW. 8), the other witness who reached at the hospital on coming to know of the incident as the deceased Pawan Meena was the son of his uncle. He further deposed that written report (Ex.P. 8) was written by him at the instruction of the mother of the deceased. Still another witness Babu Lal (PW. 9) was also not an eye witness as he reached to the hospital when he came to know of the incident as the deceased Pawan Meena was the son of his brother. Thus, no eye witness to the occurrence supported the prosecution version of participation of appellants in the crime at Atta temple where the deceased Pawan Meena was allegedly assailed by 8-9 persons. 8. Thus, no eye witness to the occurrence supported the prosecution version of participation of appellants in the crime at Atta temple where the deceased Pawan Meena was allegedly assailed by 8-9 persons. 8. On adverting to the evidence regarding recovery of weapon of offence from the appellants, it revealed that a sword was recovered on the basis of disclosure statement of the appellant Charanpreet @ Happy from a 'Nallah' (ditch of dirty water) vide Ex.P. 3 but the recovery was from the place open to all and the two Motbirs (witnesses) Sushi] Kumar (PW. 4) and Jang Bahadur (PW. 5) did not support the alleged recovery. Likewise, the prosecution failed to examine 'Motbirs' (witnesses) Ashok Meena and Chetan Meena on the point of recovery of knife vide recovery memo Ex.P.37 at the so instance of appellant Sachin Srivastava. Though vide Ex.P. 5 recovery memo, a knife was recovered at the instance of appellant Manjeet @ Kaka but no independent person of the locality was made 'Motbir' and only police personals were assigned this role. Thus, the evidence led on the point does not appear to be of convincing nature specially in the absence of eye witnesses account on the point to support that these weapons were allegedly used by the appellants while participating in the crime. 9. While adverting to the deposition of Smt. Kamla (PW. 21) mother of deceased Pawan Meena, so far as it relates her eye witness account of abducting her son from her house, it revealed that in the written report (Ex.P 8), lodged to the police, she had named Happy Sardar, Sachin Srivastava appellants and one Bunti Sardar. The report (Ex.P. 8) was handed over at 4.00 PM at the General Hospital Alwar within half an hour or so of the incident and this fact was further corroborated by Sardar Singh (PW. 20) (SHO) who was on petrolling duty and on receipt of the message he rushed is to Atta temple where the occurrence had taken place and then to the hospital where the said report was handed over to him. The participation of appellant Sachin Srivastava and Happy & Charanpreet in the incident of abduction has been further corroborated by Smt. Kamla (PW. 21) in her statement in the . The participation of appellant Sachin Srivastava and Happy & Charanpreet in the incident of abduction has been further corroborated by Smt. Kamla (PW. 21) in her statement in the . Though she did not name Bunti Sardar as mentioned in the FIR but has named the third appellant Manjeet @ Kaka as one of the three abductors. Thus, in view of the aforesaid improvement, we find that the testimony of Smt. Kamla (PW. 21) is not consistent to the extent it relates to the perception of appellant Manjeet @ Kaka. Regarding the participation of appellant Happy @ Charanpreet and Sachin Srivastava, it has been argued on behalf of the appellants that Smt. Kamla (PW. 21) did not know them and no test identification was held during investigation and as such her testimony in the pertaining identification is liable to be rejected especially in view of the fact that she wrongly identified Happy in the at the time of her deposition. On perusal of the deposition of Smt. Kamla (PW. 21), it revealed so that there is a note of the to the effect that firstly the witness indicated to a person as accused Happy but he was not accused Happy but afterwards the witness correctly identified all the accused including appellant Happy. On going through the order sheet dated 30.6.2001, it revealed that initially when the witness was asked to identify appellant Happy, he was in fact not even in the room and he was called later on as designed by his Advocate and then he was identified as stated in the aforesaid note. The manner in which the test identification was tried to be conducted in room was of no help to the accused appellant as no such identification carry any meaning when the person to be identified is not even in the room. In the deposition of Smt. Kamla (PW. 21), some improvements and contradictions have occurred but her testimony on the point of participation of appellant Happy @ Charanpreet and Sachin Srivastava is consistent and she has clarified that their names were uttered by her son Pawan Meena when he was forcibly abducted on the scooter by these appellants. In the deposition of Smt. Kamla (PW. 21), some improvements and contradictions have occurred but her testimony on the point of participation of appellant Happy @ Charanpreet and Sachin Srivastava is consistent and she has clarified that their names were uttered by her son Pawan Meena when he was forcibly abducted on the scooter by these appellants. When truthful witness come to depose, there are bound to be some inconsistencies but the testimony of such witness cannot be discarded if there is a ring of truth in the main and substratum of the prosecution case stands proved as observed by the Apex in State of U.P. v. Anil Singh, AIR 1988 SC 1998 . The Hon'ble Supreme has held that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version but that is no ground to throw the case overboard, if true, in the main. The Apex has observed as under : "With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good s case by a false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. if there is a ring of truth in the main, the case should not be rejected. It is the duty of lo the to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to sea that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." 10. On behalf of the prosecution, it has been argued that on the basis of the testimony of Smt. Kamla (PW. A Judge also presides to sea that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." 10. On behalf of the prosecution, it has been argued that on the basis of the testimony of Smt. Kamla (PW. 21) the appellants who were found to be abductors should also convicted for the offence of murder of her son by way of importing the application of section 106, Indian Evidence Act, 1872, where the burden of proving a fact is on the person who is especially in knowledge of such fact. This argument of the Apex in Murlidhar and others v. State of Rajasthan, 2005(2) WLC (SC) Cri. 1 : (2005) 11 SCC 133 has held that where there were eye witnesses in the case the principle of section 106 could not apply as the prosecution did not proceed on the footing that the facts were especially in the knowledge of the accused as indicated below "In our judgment, the High was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohd. Omar and Shambu Nath Mehra the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused". In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eyewitnesses to the fact of murder." 11. On analysing the evidence adduced at the trial by the yardstick of probabilities and its intrinsic worth, we find that the prosecution is only able to establish beyond reasonable doubt that appellants Happy @ Charanpreet and Sachin Srivastava are liable for the offence of abduction of deceased Pawan Meena in order that he may be murdered. On analysing the evidence adduced at the trial by the yardstick of probabilities and its intrinsic worth, we find that the prosecution is only able to establish beyond reasonable doubt that appellants Happy @ Charanpreet and Sachin Srivastava are liable for the offence of abduction of deceased Pawan Meena in order that he may be murdered. Therefore, the conviction of appellants Happy @ Charanpreet and Sachin Srivastava under section 364 IPC recorded by the trial is liable to be confirmed while offence under section 302/34 IPC against all the appellants is not proved beyond reasonable doubt and hence appeal to that extent deserves to be admitted. 12. For these reasons, we dispose of instant appeal in the following terms : (i) We allow the appeal of appellant Kaka @ Mandeep and acquit him of the charge under section 302/34. Appellant Kaka @ Mandeep, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We partly allow the appeal of appellants Happy @ Charanpreet and Sachin Srivastava and while maintaining their conviction under section 364 IPC, looking to the facts that the appellants have already to undergone confinement for a period of more than six years, we in the facts and circumstances of the case reduce their sentence from ten years and fine to the period already undergone by them in confinement. We however acquit them of the charge under section 302/34 IPC. Appellants Happy @ Charanpreet and Sachin Srivastava, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case. (iii) The impugned judgment of learned trial stands modified as indicated above. Appeal of K Allowed and That of H and S Partly Allowed. *******