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Madhya Pradesh High Court · body

2008 DIGILAW 1254 (MP)

IMRAT SINGH v. STATE OF M P

2008-10-24

B.M.GUPTA, U.C.MAHESHWARI

body2008
Judgment ( 1. ) THIS appeal is directed under Section 374 of Cr. P. C. by the appellants/accused being aggrieved by the judgment dated 30. 3. 1995 passed by Sessions Judge, datia in S. T. No. 96/94 convicting to each of them under Section 148 and 302 r/w 149 of IPC with a direction to undergo for two years RI in the earlier section while life imprisonment with fine of Rs. 25,000/-, in default of it further three years ri in later section. ( 2. ) THE prosecution case in short is that on 25. 5. 1994 at about 2. 00 Oclock in the noon one kilometer away from the village of Kotra near Sindh river at some place namely Barar ki Khoda the appellants were beating to the deceased Gajraj Singh by means of sticks. On hearing noise of such beating the complainant Lakhan Singh and ramsingh passing through the near way came there and asked why he is being beaten by them then the appellants ran to beat them, on which they ran away from such place to save their lives. Thereafter again beating of Gajraj Singh was continued by the appellants, on reaching to village said Lakhan Singh and Ram Singh mentioned the aforesaid incident to Man singh and Rudra Singh. Subsequent to this, the servant of Gajraj Singh namely raghuvir Singh, Har Bilash Akhbarwala and Mahendra Singh came and informed that Gajraj Singh is lying dead near aforesaid river. As per further averments the deceased Gajraj Singh has been murdered by the appellants because of some election enmity. The first information report was lodged by Lakhan Singh at P. S. Goraghat. In investigation dead body of the deceased was seized and sent to hospital where its post-mortem was carried out, spot map was also prepared. The appellants were arrested, on disclosing the information regarding the place of concealment of sticks by them the same were recovered. After holding the investigation at initial stage the charge-sheet was filed on 25. 6. 1994 only against appellant No. l and 2 namely Imrat singh and Hetam Singh for the offence under Section 302/34 of IPC. Subsequently, by showing the appellant No. 3 to 5 as absconded accused the subsequent charge-sheet was filed on 25. 8. 1994 while after arresting them again charge-sheet was filed on 30. 8. 1994. ( 3. 6. 1994 only against appellant No. l and 2 namely Imrat singh and Hetam Singh for the offence under Section 302/34 of IPC. Subsequently, by showing the appellant No. 3 to 5 as absconded accused the subsequent charge-sheet was filed on 25. 8. 1994 while after arresting them again charge-sheet was filed on 30. 8. 1994. ( 3. ) ON framing the charges by the trial court against all the appellants, they abjured the same, on which the evidence was recorded. On appreciation of the same after holding guilty to the appellants for the aforesaid offence each of them has been sentenced as mentioned above. On which the appellants have come forward with this appeal. ( 4. ) SHRI Atul Gupta, learned counsel for the appellants argued that the prosecution has failed to prove the alleged offence against any of the appellants by cogent and reliable evidence. The evidence led by the prosecution is neither trustworthy nor conclusive to draw any inference against any of the appellants. By referring different three police reports filed under Section 173 of Cr. P. C. of different dates i. e. 25. 6. 1994, 25. 8. 1994 and 30. 8. 1994, he said that in view of such contradictory report the appellant no. 3 to 5 would not have been convicted by the trial court and they ought to have been acquitted mere on this ground. He further said that examined independent witnesses of the prosecution have not supported the prosecution case, many of them became hostile and did not state against any of the appellants. The depositions of Somti Bai (P. W. 6) and Raghuvir (P. W. 7) being based on hearsay information were not reliable. He further said that as alleged eyewitnesses lakhan Singh (P. W. 10) the complainant and ram Singh (P. W. ll) being nephews of the deceased were interested witnesses, thus their testimonies should have been considered by the trial court with care and cautious but the same has not been considered with that approach. In continuation of it he said that the presence of these witnesses at scenario is apparently doubtful from their own statements. In continuation of it he said that the presence of these witnesses at scenario is apparently doubtful from their own statements. By referring paragraph 8 of the deposition of Lakhan Singh he said that this witness along with Ram Singh was returning from the village Badon Kala to his village Kotra, there are three different ways between such villages, out of them the way passing near to the place of incident was the longest way while the other two small ways were also available to them but why he has chosen the longer way, the same has not been explained either by the prosecution or by him, he also said that on preparing the spot map, the places from where these witnesses saw the incident are not shown in it by the investigation agency. In such premises the presence of this witness at the place of the incident is apparently doubtful and it gives the circumstance to draw the inference that said witness lakhan Singh and witness Ram Singh were not present on the spot. In such premises the findings of the trial court holding them to be the eyewitnesses deserve to be set aside as on excluding such testimonies there is no other evidence or circumstance on which the appellants could have been convicted by the trial court. He also argued that the material omissions and contradictions between the case diary statements and the depositions of aforesaid witnesses have not been considered with proper approach by the trial court. Besides this, inter se inconsistency between their statements have also not been considered, the same requires consideration at this stage. The aforesaid witnesses tried to suppress their relation with the deceased Gajraj Singh, such conduct gives the circumstance to draw the inference that these witnesses have falsely implicated the appellants. It was also argued that as per deposition of complainant lakhan Singh, before recording the first information report, police/investigating agency visited the spot and seized the dead body of Gajraj Singh, therefore, the alleged fir (Ex. P. 10) is hit by Section 162 of Cr. P. C. as the same is recorded during investigation. In such premises he prayed for ac-quittal of all the appellants by allowing this appeal. ( 5. P. 10) is hit by Section 162 of Cr. P. C. as the same is recorded during investigation. In such premises he prayed for ac-quittal of all the appellants by allowing this appeal. ( 5. ) ON the other hand by responding the aforesaid arguments Shri M. P. S. Bhadoria, learned G. A. said that the impugned conviction and sentence of the appellants are based on proper appreciation of evidence and also is in conformity with law, the same do not require any interference at this stage and prayed for dismissal of this appeal. ( 6. ) HAVING heard the counsel, we have gone through the record of the trial court and also perused the impugned judgment. As per first information report (Ex. P. 10) the alleged beating of deceased Gajraj Singh took place at about 2. 00 Oclock in the noon of 25. 5. 1994 and only after four hours and twenty minutes at about 18. 20 in the same evening the FIR was lodged by Lakhan singh (P. W. 10 ). The police station was shown to be three kilometer away from such place. In such situation the small delay in lodging the first information report could not be treated to be fatal for the prosecution case. In view of the deposition of the complainant Lakhan Singh it was contended by the appellants counsel that before lodging the first information report the police officials visited the spot, thus, the same is hit by Section 162 of Cr. P. C. as it was recorded in the course of the investigation. But such argument of the counsel has not appealed us because in the cross-examination of the investigating officers of the case namely Radha Krishna Tripathi (P. W. 12) and Rakesh Kumhar Shankhwar (P. W. 16) not a single question in this regard has been asked. If the FIR was being challenged by the appellants on such ground then some questions in this respect should have been asked in the cross-examination of the aforesaid investigating officers. In the lack of such evidence mere on the basis of the cross-examination of the complainant lakhan Singh (P. W. 10) and Ram Singh (P. W. ll) it could not be inferred that before lodging the FIR the place of the incident was visited by the investigating agency. In the lack of such evidence mere on the basis of the cross-examination of the complainant lakhan Singh (P. W. 10) and Ram Singh (P. W. ll) it could not be inferred that before lodging the FIR the place of the incident was visited by the investigating agency. It is true that scribe of the FIR is neither examined nor any explanation in this regard has been put forth by the prosecution, but mere non production of such witness does not give any circumstance to draw the inference against the prosecution when the investigating officers have not been cross-examined on behalf of the appellants in that regard. ( 7. ) THAT apart, on examining the process of investigation, it is apparent that after recording the FIR the police visited the spot at 20. 30 on the same day and prepared the spot map (Ex. P. 18), in which the crime no. 40/94 is mentioned. The dead body was also seized and sent to the hospital for its post-mortem. The witness of inquest panchnama and spot map namely Jagdish (P. W. 14) has also not stated such fact that before preparation of inquest Panchnama and spot map or prior to sending the dead body for post-mortem the investigating agency or its officials have visited the place of incident. Mentioning the Crime number on the aforesaid papers give sufficient circumstance to draw the inference that investigation agency had gone to the place of incident after registering the FIR. ( 8. ) IN view of the aforesaid discussion, the case laws cited by the appellants counsel in the matter of Laxman v. State, State of haryana v. Ch. Bhajan Lal; State of A. P. v. Punati Ramula; Sheikh Meheboob @ hetak v. State of Maharashtra and in the matter of Ramesh Kumharl v. State are not helping to the appellants as the same are based on their different facts and circumstance of the concerned cases in which some of the evidence in that regard was available, which is not the situation here in the case at hand. Thus, in the lack of such circumstance the benefit of aforesaid citations could not be extended to the appellants. Therefore, it is held that the FIR (Ex. P. 10) is not hit by the provision of Section 162 of Cr. P. C. in any manner. ( 9. Thus, in the lack of such circumstance the benefit of aforesaid citations could not be extended to the appellants. Therefore, it is held that the FIR (Ex. P. 10) is not hit by the provision of Section 162 of Cr. P. C. in any manner. ( 9. ) IT is undisputed fact on record that gajraj Singh died homicidal death because of the following injuries mentioned in the post-mortem report (Ex. P. 8): (1) Abrasion 1 x l/2 cm on right face below eye transverse surrounding contusion 2x1 cm. (2) Contusion 2x1 cm on face left side below left eye. (3) Abrasion 2 x 1/2 cm on right ext. ear. (4) Contusion 1 x 1/2 cm left ext. ear. (5) Abrasion 1x1 cm on right elbow lat. (6) Abrasion 3x2 cm on left upper arm mid 1/3 lat. contusion 6x4 cm. transverse. (7) Contusion "////" shaped multiple contusion at back 20 x 32 cm on upper half of both scapulae. (8) Multiple contusion 32 x 16 cm on both buttock and (illegible.)//// part. (9) Contusion 2x1 cm on left knee to below patella transverse out. (10) Contusion 3x1 cm on left knee below patella transverse. (11) Contusion 5 x 1 cm on left leg mid. 1/3 part/vertical oblique. (12) Contusion 3 x 2 on right leg mid. 1/3 part. Above injuries are ante mortem in nature caused by hard and blunt object. ( 10. ) AS per opinion of Doctor Swatantra kumhar Saxena (P. W. 8) the cause of death was shock due to internal haemorrhage in pleural cavity and in heart and injury to vital organs (heart and lungs ). The aforesaid injuries sustained by the deceased by hard and blunt object. In deposition he also stated that such injuries could have been caused by means of sticks. In the lack of any contrary evidence, the findings of the trial court holding that Gajraj Singh died because of aforesaid injuries sustained by hard and blunt object like sticks, appears to be correct. ( 11. ) NOW the court has to examine the question whether aforesaid alleged injuries were caused by all the appellants as stated in the FIR (Ex. P. 10) or by some of them or any of them. ( 12. ) IT is apparent from the record that alleged incident of beating of deceased gajraj Singh took place at about 2. ) NOW the court has to examine the question whether aforesaid alleged injuries were caused by all the appellants as stated in the FIR (Ex. P. 10) or by some of them or any of them. ( 12. ) IT is apparent from the record that alleged incident of beating of deceased gajraj Singh took place at about 2. 00 Oclock in the noon of 25. 5. 1994 and its FIR (Ex. P. 10) was lodged only after four hours and twenty minutes at about 8. 20 in the same evening at P. S. Goraghat by the witness lakhan Singh. As per averments of fir Lakhan Singh (P. W. 10) and Ram Singh (P. W. ll) are mentioned to be the eyewitnesses of the incident but before considering the averments of the FIR and testimonies of these witnesses we would like to examine the deposition of other witnesses examined in respect of the circumstance in which the deceased was brought to the place of incident where the alleged beating was carried out and his dead body was found. In that respect the prosecution has examined various witnesses out of them Somti (P. W. 6)categorically stated that before eight months (from the date of recording her deposition)at about 12. 00 Oclock in the noon she was at her well situated at agricultural field where Gajraj Singh was also present, at the same time appellant No. 1 Imrat Singh came there to invite him for a drink then gajraj Singh had gone with him. She further deposed that after going of Gajraj Singh with Imrat Singh she was told by Punia (P. W. 5) that Imrat Singh appellant No. l and hetram Singh appellant No. 2 were beating to Gajraj Singh and on coming Mahendra singh and Har Vilash Singh she mentioned the aforesaid fact of beating to them and thereafter Gajraj Singh has not come back and was found dead. In cross-examination by admitting the relationship of Mahendra singh and Har Vilash Singh with her she stated that Mahendra Singh is brother-in-law of her brother Har Vilash. She also accepted that Gajraj Singh was habitual of drink, contrary to the statement given in chief in paragraph 4 of her cross-examination, it was stated that she was told about beating of Gajraj Singh by Harvilash Singh who was informed by Punia. She also accepted that Gajraj Singh was habitual of drink, contrary to the statement given in chief in paragraph 4 of her cross-examination, it was stated that she was told about beating of Gajraj Singh by Harvilash Singh who was informed by Punia. In any case this witness has proved one thing that Gajraj singh was present at the well and in her presence he had gone with Imrat Singh and thereafter he was found dead with the above mentioned injuries at the place of the incident. Her testimony is further supported by raghuvir Singh (P. W. 7 ). He categorically stated that before eight months (from recording his deposition)at about 2. 00 Oclock in the noon being servant of Gajraj Singh he was at his well in the field where Somti (P. W. 6) and the deceased Gajraj Singh were also present, at the same time appellant no. l Imrat Singh came there and took gajraj Singh with him for eating the meat. Subsequent to it, Punia came to the well of gajraj Singh and told that Imrat Singh and hetam Singh were taking Gajraj Singh toward the forest with beating. At that time somti (P. W. 6) was also present. Thereafter, this witness, along with Har Vilash Singh and Mahendra Singh went towards the forest where Gajraj Singh was found dead then they informed this fact to Lakhan Singh and man Singh in village Kotra on which they replied that they have already seen the dead body of Gajraj Singh. It is apparent from the depositions of these witnesses that gajraj Singh was taken away from his well by Imrat Singh appellant No. l and it also appears that the fact regarding death of gajraj Singh was already known to Lakhan singh and Man Singh. ( 13. ) ONE more witness Harvilash Singh (P. W. 15) has also been examined in this respect. He categorically stated that before eight months from the date of recording his deposition, at about 1. 30 noon he along with man Singh visited the well of Gajraj Singh the father-in-law of his sister Somti, on asking her about Gajraj Singh, Somti, replied that Imrat Singh the appellant No. l took away Gajraj Singh with him. He further said at such time Punia came there and informed that Gajraj Singh with beating is being taken towards the river by Imrat Singh and hetam Singh. He further said at such time Punia came there and informed that Gajraj Singh with beating is being taken towards the river by Imrat Singh and hetam Singh. Thereafter, he along with mahendra Singh and Raghuvir Singh went towards the river, where they saw Gajraj singh lying dead near the river. As per further averments he did not see any beating of Gajraj Singh. He also stated that they informed this fact to Lakhan Singh and Ram singh in the village, on which they replied that this fact is already known to them. After going through the entire testimony of this witness some facts are apparent that when this witness visited the well of Gajraj singh it was known to him that Imrat Singh appellant No. l took away Gajraj Singh with him and thereafter on receiving the information from Punia (P. W. 5) he along with raghuvir, (P. W. 7) and Mahendra Singh went to search Gajraj Singh and found him dead near the river. In such circumstances one thing is certain that Gajraj Singh lastly had gone with Imrat Singh appellant No. l and thereafter he was found dead with the alleged ante mortem injuries. Although punia (P. W. 5) had not supported the aforesaid contention that she informed the aforesaid beating of Gajraj Singh by the appellants or by any of them to the aforesaid witnesses or any person. She turned hostile and did not support even her interrogatory statement recorded during investigation. But in view of the deposition of the aforesaid witnesses the prosecution case does not suffer any infirmity even on turning the said witness Puniya hostile. ( 14. ) IN respect of the fact that Gajraj Singh was being taken with beating towards the forest by Imrat Singh and Hetam Singh the appellant No. 1 and 2, the interrogatory statements of Fatia @ Patia (P. W. 2), Patta (P. W. 3) and Kalicharan (P. W. 4) were also recorded but at trial any them did not support the prosecution case and turned hostile and also disown their case diary statements Ex. P. 3, Ex. P. 4 and Ex. P. 5 respectively. ( 15. P. 3, Ex. P. 4 and Ex. P. 5 respectively. ( 15. ) IN view of the aforesaid discussion, it is apparent that on the date of the incident in the noon in presence of Somti (P. W. 6) and raghuvir Singh (P. W. 7) Gajraj Singh was taken from his well by Imrat Singh appellant No. l and thereafter on the same evening he was found dead with homicidal ante-mortem injuries on his body. In such premises, it appears that in causing the aforesaid alleged injuries to the deceased gajraj Singh, appellant No. l Imrat Singh was apparently involved and in view of number of injuries some other persons were also involved with Imrat Singh. ( 16. ) AS per record, the FIR was lodged by lakhan Singh (P. W. 10) claiming to be the eyewitness of the incident along with ramsingh (P. W. ll ). As per contention of the fir (Ex. P. 10) said complainant Lakhan singh along with Ramsingh were returning from the village Badon Kala to their village kotra on such date from the way passing through the place of occurrence at about 2. 00 Oclock when they reached to the place known as Barar ka Khoda situated near the sindh river and on some distance of village kotra, where the deceased Gajraj Singh was being beaten by the appellants by the blows of sticks, on hearing the noise of it, they went towards that side and on asking the appellants why they are beating to Gajraj singh, on which they rushed behind the complainant Lakhan Singh and Ramsingh, on which they ran away from such place to save their lives, then again beating of Gajraj singh was started by the appellants. On reaching their village, they mentioned the incident to Mansingh, Rudra Singh and some other villagers, whereafter some time the complainant received the information from Raghuvir Singh, Harvilash Singh and mahendra Singh that Gajraj Singh lying dead near the river, then they told them that gajraj Singh has been killed by the appellants in furtherance of their common object. ( 17. ) ON entering into the witness box lakhan Singh (P. W. 10) categorically deposed in his examination-in-chief all the material facts mentioned in the FIR. In crossexamination he denied his relationship with the deceased. ( 17. ) ON entering into the witness box lakhan Singh (P. W. 10) categorically deposed in his examination-in-chief all the material facts mentioned in the FIR. In crossexamination he denied his relationship with the deceased. He categorically stated in paragraph 7 of his deposition that he went to the village Badonkala along with ramsingh to meet Bhagwandas Kumhar in connection of some work that is why he was returning from such village to his village kotra. In paragraph 8 of his deposition by stating the distance of aforesaid two villages, he said that there are three ways between such two villages, the other two ways are short in comparison of the way by which they were returning. It is also stated that such way was zig zag and goes through the forest. ( 18. ) IN view of such deposition it was argued by the appellants counsel, that it does not explain that why they have adopted this longest way to return the village, in the absence of such explanation and also in the lack of cross-examination of Bhagwandas kumhar whom they went to meet, the presence of this witness at the place of occurrence appears to be doubtful. We are not impressed by the aforesaid submission because in the cross-examination of complainant Lakhan Singh no specific question re-garding purpose to visit the place of bhagwandas Kumhar or about reasons for adopting the aforesaid longest way to return their home were not asked on behalf of the appellants. In the village culture when a person is going from one village to another village as pedestrian then it is their choice to adopt any of the available way to reach their village. Thus, mere on the basis of choosing the aforesaid way for return journey; their presence on the scenario could not be doubted. So far proving the visit of the witnesses to the place of Bhagwandas is concerned, in the available facts and circumstance his examination does not appear to be necessary when other circumstance showing the presence of the complainant lakhan Singh and Ramsingh at the place of incident has been proved. In paragraph 10 of his deposition he stated the distance between Barar Ka Khoda and the way from which they were passing is round about 1/2 km while the same was stated by Ram Singh one and half km. In paragraph 10 of his deposition he stated the distance between Barar Ka Khoda and the way from which they were passing is round about 1/2 km while the same was stated by Ram Singh one and half km. They saw the quarrel and beating from such place and asked the names of the persons whom who are beating. On asking they received the reply that if they speak between them, then they would set right them also, on which they came to their village by leaving such place. As per his further deposition after consulting with rudra Singh, Ajab Singh and Harvilash singh about lodging the report, they went to P. S. Goraghat to lodge the same. As per paragraph 3 of the deposition of complainant, it appears that there was some political enmity between the appellants and the deceased. ( 19. ) THE material circumstance stated by aforesaid witness Lakhan Singh is further supported by Ramsingh (P. W. ll) who was also returning accompanied with him from badonkala through the aforesaid way near the place of occurrence. He stated the same story with slight differences in the script but all the material things have been stated by him in his examination-in-chief. He categorically shown his presence at the place of the incident where Gajraj Singh was being beaten by the appellants. However, from paragraph 4 of his deposition it appears that he being son of Badam Singh, the brother of deceased is nephew of Gajraj Singh. In cross-examination he supported the version of Lakhan Singh saying that they went to meet Bhagwandas Kumhar at Village badonkala from where they were returning through aforesaid way. He categorically stated that such way is passing through near the river and according to him he saw the incident only from the distance of 10 steps but such way was stated to be one and half kilometer away from the place of the incident. Although, there is some discrepancies between the depositions of aforesaid both the witnesses regarding distance between the way and the place of occurrence or the distance from where they saw the alleged beating of Gajraj Singh by the appellants. It is undisputed fact on record that these witnesses being agriculturists are rustic villagers. Hence, it could not be expected from them that they may state the exact distance between two places. It is undisputed fact on record that these witnesses being agriculturists are rustic villagers. Hence, it could not be expected from them that they may state the exact distance between two places. Apart from the above, it is also apparent from the record that investigating officers or any of them has not been cross-examined regarding such distance of the aforesaid two villages and the distance between the river and the way by which they were returning and such investigating officers have also not been cross-examined about non-making any interrogation from Bhagwandas from whose place the witnesses were returning. Thus, the presence of these witnesses on the scenario could not be doubted. ( 20. ) ON going through the entire depositions of these two witnesses it is revealed that while returning from Badonkala to their village they saw the alleged incident from some distance in which the deceased gajraj Singh was being beaten with sticks by the appellants. The aforesaid testimonies of these two witnesses are related with the subsequent part of the incident in which cajraj Singh was being badly beaten by the appellants, while the earlier part of the incident in which Gajraj Singh was brought up to the place of occurrence has been proved by Somti (P. W. 6), Raghuvir Singh (P. W. 7) and Harvilash Singh (P. W. 15 ). ( 21. ) WE would like to mention here that the presence of aforesaid eyewitnesses namely Lakhan Singh (P. W. 10) and ramsingh (P. W. ll) has been also disputed by the appellants counsel saying that on preparing the spot map (Ex. P. 18) the places from where they saw the incident has neither been mentioned in such map nor proved on record while marking the exhibit on such map. In respect of such contention various reported cases are cited by the appellants counsel, the same are taken into consideration one by one. ( 22. ) THE case of Pratap Singh v. State of madhya Pradesh is based on the circumstance that at the initial stage in the FIR the name of some eyewitnesses were not disclosed and during the investigation some name of the material witnesses was known to the investigating agency. ( 22. ) THE case of Pratap Singh v. State of madhya Pradesh is based on the circumstance that at the initial stage in the FIR the name of some eyewitnesses were not disclosed and during the investigation some name of the material witnesses was known to the investigating agency. In such circumstance mentioning the places in spot map from where such witnesses saw the incident was held to be necessary, which is not the situation here in the case at hand, on the contrary in the FIR (Ex. P. 10) the name of the eyewitnesses the complainant Lakhan singh and Ramsingh are mentioned. Thus, cited case is not helping to the appellants. ( 23. ) THE case of State of U. P. v. Bhagwan is also distinguishable on the facts from the present case as in the present case the names of the witnesses in whose instance and presence the spot map was prepared were already mentioned in the FIR and the same was proved by such witnesses and it is apparent fact on record that such spot map (Ex. P. 18) has not been disputed by the appellants while cross-examined the investigating officers. Therefore, this cited case is also not helping to the appellants. ( 24. ) THE case of Lallu Manjhi v. State of jharkhand was decided taking into consideration that no site plan was prepared by the investigating officer, which is not the situation here. Similarly the case of singhara Singh v. State of Haryana was decided taking into consideration that the presence of the cot and ladder on the spot was not shown in the site plan, the same was not decided taking into consideration the identical or like question involved here in the case at hand. Hence, such citations are also not helping to the appellants. ( 25. ) THE case of Baldev Singh v. State of m. P. is based on the circumstance that some of the material lying at the place of the incident was not shown in the spot map, which is not the situation here. Thus, this case is also not supporting to the appellants. ( 26. ( 25. ) THE case of Baldev Singh v. State of m. P. is based on the circumstance that some of the material lying at the place of the incident was not shown in the spot map, which is not the situation here. Thus, this case is also not supporting to the appellants. ( 26. ) THE case of State of M. P. v. Ghudan is decided taking into consideration the source of light i. e. tube light was not shown in the plan on which the benefit of doubt was given to the accused while in the present case the incident took place in the broad day light. In such circumstance this citation being distinguishable on facts is also not applicable to the case at hand. ( 27. ) APART the above the case laws in the matter of Vijay Singh v. State of M. P. and in the matter of Chhota v. State of M. P. are also cited for giving support to the aforesaid questions. So for the principles laid or settled in the aforesaid cases are concerned, this court did not have any dispute but in the present circumstances in which the alleged spot map (Ex. P. 18) has not been challenged on behalf of the appellants either in the cross-examination of its witness jagdish (P. W. 14), who exhibited the same or in the cross-examination of any of the investigating officers by asking any question in order to challenge the same. Although such spot map has not been proved by the aforesaid eyewitness but in view of unchallenged testimony of Jagdish Prasad (P. W. 14) and investigating officers namely r. K. Tripathi (P. W. 12) and Rakesh Kumhar shankhwar ( (P. W. 16) such spot map could not be discarded and in such circumstance the presence of said eyewitnesses could not be doubted. ( 28. ) IN view of the aforesaid discussion, it is held that the spot map. (Ex. 18) is prepared by the investigating agency showing all the requisite information and circumstances, thus on account of non-showing the places in it from where the witnesses saw the incident does not destroy the case of the prosecution. ( 29. ( 28. ) IN view of the aforesaid discussion, it is held that the spot map. (Ex. 18) is prepared by the investigating agency showing all the requisite information and circumstances, thus on account of non-showing the places in it from where the witnesses saw the incident does not destroy the case of the prosecution. ( 29. ) IN the aforesaid map the place of occurrence where the alleged beating of Gajraj singh was carried out and his dead body was found are shown near the way between the village Badonkala to Kotra. The Sindh River in which some part of dead body was found in side is also mentioned nearby such way. Such map being unchallenged in the cross-examination of Jagdish (P. W. 14) and the investigating officers is not only admissible but the same can be relied on to hold that lakhan Singh and Ramsingh seen the occurrence from the aforesaid adjoining way. Therefore it is held that while returning from Badonkala to Kotra shows that place of the incident could be observed from the aforesaid adjoining way. Therefore, it is held that while returning from Badonkala to kotra Lakhan Singh (P. W. 10) and ramsingh (P. W. ll) on hearing the noise on way in such forest, they went towards the side of quarrel where Gajrajsingh was being beaten by the appellants and they being without any implements or weapons, on giving threatening by the appellants, left such place and ran away to their village and after mentioning the incident to Mansingh, rudra Singh and other villagers, while consulting to each other for lodging the report at the same time it was confirmed that gajraj Singh is lying dead near the river. It is natural when five persons are beating to one person by means of sticks then the persons like said witnesses two in number who did not have any implements or weapons in their hands could not dare to go and save the person who was being beaten by the appellants. Therefore, the conduct of the eyewitnesses could not be doubted on the ground that they did not try to save Gajraj singh from his beating by the appellants and they did not go again with other persons from their village to the place of occurrence to save Gajraj Singh from such beating. ( 30. Therefore, the conduct of the eyewitnesses could not be doubted on the ground that they did not try to save Gajraj singh from his beating by the appellants and they did not go again with other persons from their village to the place of occurrence to save Gajraj Singh from such beating. ( 30. ) SO far the question regarding filling three different challans are concerned, it is apparent that the name of all the appellants as assailant were mentioned in the FIR as well as in the case diary statements of the eyewitnesses Lakhan Singh and Ramsingh, so in view of such prima facie evidence there was no occasion to file the charge-sheet only against two persons i. e. appellant No. l and 2 by excluding the appellant No. 3 to 5. At the time of filing the first charge-sheet in spite availability of sufficient evidence in the case against appellant No. 3 to 5 also, for the one reason or another the investigation officer has committed the mistake in non-filing the challan against the appellant No. 3 to 5. But later such mistake was rectified by filing the subsequent charge sheets against such appellants. Thus, mere on some averments of the deposition of investigating officer Radhakrishna, contrary to record and circumstances it could not be held that appellant No. 3 to 5 are falsely implicated in the case at subsequent stage in investigation. Now the law is well settled on the question that any mistake on the part of the investigating officer could not be a ground to give acquittal or extend any benefit to the accused/appellants. Thus, such argument is also not helping to the appellants. ( 31. ) IN the available facts and circumstances and also in view of the aforesaid findings of the impugned judgment regarding memorandum of the appellants prepared under section 27 of the Evidence Act and the seizure memos do not require any interference, hence, the same are hereby affirmed. ( 32. ) IN view of the aforesaid, it has also been established that the appellant No. 1 to 5 by constituting unlawful assembly to fulfil their common object with intention to kill gajraj Singh caused various blows of sticks on him till his death. , ( 33. ( 32. ) IN view of the aforesaid, it has also been established that the appellant No. 1 to 5 by constituting unlawful assembly to fulfil their common object with intention to kill gajraj Singh caused various blows of sticks on him till his death. , ( 33. ) THEREFORE, it is held that the trial court has not committed any error, perversity or illegality in holding guilty and in awarding the aforesaid sentences to the appellants for above mentioned offences. ( 34. ) IN view of the aforesaid discussion, we have not found any merits in this appeal. Thus, by affirming the judgment along with the conviction and sentence of the appellants, the appeal is hereby dismissed. It appears from the record, that the appellants are on bail, hence, in pursuance of dismissal of the appeal their bail bonds are hereby cancelled and they are directed to remain present before the trial court on or before 01. 12. 2008 for facing their remaining jail sentence, failing which trial court shall be at liberty to take appropriate step to serve the remaining jail sentence awarded against them. ( 35. ) APPEAL is dismissed as indicated above. Appeal dismissed.