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2009 DIGILAW 287 (RAJ)

Madan Lal v. State of Rajasthan

2009-01-30

KISHAN SWAROOP CHAUDHARI, N.P.GUPTA

body2009
JUDGMENT 1. - The two appellants Madan Lal and Shyam Sundar have filed this appeal seeking to challenge the judgment of learned Additional Sessions Judge (Fast Track), Anoopgarh dated 21.1.2003, whereby the appellant Madan Lal was convicted for the offences under Sections 302, 307 and 450/34 I.P.C. and sentenced to imprisonment for life with fine of Rs. 500/- in default to undergo 3 months' additional rigorous imprisonment under Section 302, 10 years' rigorous imprisonment with a fine of Rs. 500/- in default to further undergo 5 months' further 3 months' rigorous imprisonment under Section 307, and 5 years' R.I. along with fine of Rs. 200/- in default to undergo one month's additional R.I. for offence under Section 450/34, which the other appellant Shyam Sundar was convicted for the offences under Sections 302/34, 307/34 and 450/34 I.P.C., and sentenced to imprisonment for life with fine of Rs. 500/- in default to undergo 3 months' additional rigorous imprisonment under Section 302/34, 10 years' rigorous imprisonment with a fine of Rs. 500/-, in default to further undergo 5 months' further 3 months' rigorous imprisonment under Section 307/34, and 5 years' R.I. along with fine of Rs. 200/-, in default to undergo one month's additional R.I. for offence under Section 450/34. 2. The facts of the case are, that on 10.3.2000 at 7.00 A.M., a Parcha Bayan of the injured Jagdish, who happens to be the father of the two appellants, was recorded, being Ex.P-1, wherein Jagdish stated, that his earlier wife Mouri Devi died some 3-4 years ago, and he had three sons from that wedlock, eldest is Madan Lal, second is Shyam Sundar, and third is Kalu Ram. He contacted another marriage with Smt. Kamla, some 2 years ago. He then deposed that the two elder sons are married, and are living separately for last one year, they have their independent houses in the same village, both of them have married to two sisters, being daughters of one Ballu Ram Kumhar resident of Lalgarh. One month ago, the two elder sons asked for partition of land, and accordingly be gave ⅕th share of land to them. One month ago, the two elder sons asked for partition of land, and accordingly be gave ⅕th share of land to them. Giving this background he deposed that last evening at about 9-10 P.M. his middle son Shyam Sundar came, and called to come out, whereupon he came out, and when he reached near the kotha, where cattle are tethered, Shyam Sundar pushed him in the kotha, and he lost balance, somehow he maintained balance, and in the meantime, one person, who was inside the kotha gave two stab wound in the abdomen, thereupon he raised a cry, which attracted his wife Kamla, who intervened. Thereupon both of them spared him and started showering stab wounds on her. Then he has claimed to have identified the first assailant, being his first elder son Madan Lal. Thereupon both of them raised cry, and the two accused left them, and went away. His wife fell down, and he went to his uncle Gopi Ram, raising cry of "Frit IN). Then his uncle came out, to whom he narrated the whole story. Then his uncle and brothers Balwant and Krishna carried them in jeep to doctor at Suratgarh hospital, and got them admitted, wherefrom they were referred to Ganganagar Government Hospital, where they were admitted, now his wife had died in the Government Hospital. After recording this statement, the injureds were got examined, and it was found that drip was on, on the right hand of the injured, there was a tube inserted in the nose, and a catheter for urine, the abdomen injury was bandaged, therefore, case under Sections 302, 307 and 334 I.P.C. was found to have been made out, and since the incident is related to Suratgarh, the original statement were sent to Suratgarh. This statement was received at Police Station Suratgarh at 9.30 A.M., and thereupon F.I.R. No. 100/2001 was registered, and investigation commenced. After completing usual investigation, a charge-sheet was submitted against the accused. The case was committed. The learned trial Court framed charges under Sections 302, 307 and 450/34 I.P.C. against the accused Madan Lal, while charges under Sections 302/34, 307/34 and 450/34 I.P.C. were framed against the accused Shyam Sundar. 3. During trial, the prosecution examined some 12 witnesses, tendered in evidence some 30 documents, and four articles were exhibited. The accused denied the charges. The learned trial Court framed charges under Sections 302, 307 and 450/34 I.P.C. against the accused Madan Lal, while charges under Sections 302/34, 307/34 and 450/34 I.P.C. were framed against the accused Shyam Sundar. 3. During trial, the prosecution examined some 12 witnesses, tendered in evidence some 30 documents, and four articles were exhibited. The accused denied the charges. The learned trial Court after completing the prosecution evidence recorded the statement of the accused under Section 313, wherein accused Madan Lal stated, that Birbal Ram and Sukhram wielded pressure on their father, and after getting the report scribed, obtained signatures of their father in an unconscious state, with a view to grab their land, while accused Shyam Sundar adopted a stand of denial. In defence, the accused examined four witnesses, including the youngest brother Kalu Ram, and also tendered in evidence some 6 documents. 4. The learned trial Court ultimately convicted and sentenced the accused appellants as above. 5. Learned counsel for the appellant, assailing the convictions, made various submissions. It was submitted that the whole prosecution story is false, and has been concocted. From the material on record, if closely examined, every aspect of the story would be found to be false. Learned counsel started with submitting, that Police Station at Suratgarh is situated adjoining the Government Hospital in Suratgarh, and when according to the prosecution, the injureds were taken to Suratgarh hospital in the night itself, nothing prevented anybody from lodging the report at Police Station Suratgarh. Then even after reaching to Ganganagar from Suratgarh, the statements of the two injureds could be recorded immediately at Ganganagar, as dying declarations, because Kamla had died at 6 A.M. in the next morning, and thus, it is clear that till death of Kamla, no steps were taken by anybody to set the legal machinery into motion. According to the learned counsel, it appears that it is only after Kamla had died, and since the assailants were not known, a wholly false story has been cooked up after deliberations and consultations and scheming. According to the learned counsel, it appears that it is only after Kamla had died, and since the assailants were not known, a wholly false story has been cooked up after deliberations and consultations and scheming. It was then submitted that in the totality of circumstances, even if the statements were recorded at 7 A.M. at Ganganagar, various other steps were taken by the Investigating Agency at Ganganagar itself immediately at that time, and then looking to the distance between Ganganagar and Suratgarh, the statement could possible got reach Suratgarh at 9.30 A.M. Thus, against the things had been manipulated, and it is for this reason, that the alleged F.I.R. reached the Magistrate at 7 P.M. on 10th of March, even though that day was working lay, and even the house of the Magistrate is located at a distance of less than a kilometer from the Police Station. Learned counsel then made submissions on the correctness of the contents of Ex.P-1, being the statement of Jagdish, recorded at 7 A.M. on 10.3.2000, by referring to other material on record, so also the statements of other witnesses, recorded during trial. In this regard, it was submitted, firstly, that as would be clear from the Court statement of Jagdish, who has appeared as PW-1 in cross-examination, that he received stab wounds inside the Kotha of cattle, and when he received stab wounds he did not identify the accused Madan Lal, because there was dark. Then he has turned bound, and stated, that gas cylinder and bulb light was on, and in that light he identified Madan Lal to be the assailant. Then he was confronted with the statement Ex.P-1 and D-1, wherein it was not deposed that gas cylinder and bulb was on, and he did not offer any explanation. Then he has turned bound, and stated, that gas cylinder and bulb light was on, and in that light he identified Madan Lal to be the assailant. Then he was confronted with the statement Ex.P-1 and D-1, wherein it was not deposed that gas cylinder and bulb was on, and he did not offer any explanation. Then learned counsel referred that he has also admitted in cross-examination, that at the time incident, cattle were tethered in the Kotha, Kamla had come outside in the Bakhal only, and did not enter the Kotha, and that his blood has fallen in the ground in Kotha also, and in the examination-in-chief he has deposed, that after the incident he went to the house of Gopi Ram by scaling the wall.While according to the statement of the I.O., and the site inspection note, neither cattle were there in the Kotha, nor was there any electric bulb, or gas cylinder light, similarly according to the I.O., and the site plan, there is no house of Gopi Ram in the vicinity, where the injured could go, much less by scaling the wall, apart from the fact that the doctor B.M. Sharma, PW-11, the Medical Jurist, has clearly admitted in the cross-examination, at page 3, that looking to the nature of injuries found on the person of Jagdish, it is not possible, that in that condition, the injured can scale a wall of the height of 4 to 5 feet. Learned counsel also pointed out, that according to the statements the injures were got admitted in the hospital at Suratgarh, wherefrom they were referred to the Government Hospital Ganganagar, but then, no record of the Suratgarh hospital, in this regard, has been produced, nor the doctors, Dr. Kailash Floor, and Dr. O.P. Garg have been produced, nor any medical record, like bed-head ticket etc. have been produced. PW-8 Dr. Rajiv Kaushik and PW-11 Dr. B.M. Sharma are all doctors from Ganganagar. Learned counsel then submitted, by referring to the statement of PW-10 Hemraj, who had recorded the statement of the injured Jagdish, being Ex.P-1, that according to this witness, he did not receive any information for recording statement. have been produced. PW-8 Dr. Rajiv Kaushik and PW-11 Dr. B.M. Sharma are all doctors from Ganganagar. Learned counsel then submitted, by referring to the statement of PW-10 Hemraj, who had recorded the statement of the injured Jagdish, being Ex.P-1, that according to this witness, he did not receive any information for recording statement. Then he has stated that he received telephone of the S.H.O., who directed to record the statement, but then he has not clarified as to S.H.O. of which Police Station gave him the direction, obviously no report was lodged at Suratgarh, nor any report is said to have been lodged at Gartganagar, and if this part of the statement of PW-10 has any trace of truth, it is clear, that before recording the statements, some report was lodged by somebody, at some Police Station, which must be the first version of the incident, which has not been brought on record. It was then pointed out that PW-10 has also admitted, that he had come to record statement after making necessary Rapat in the Roznamcha, but then he did not bring that Roznamcha with him, nor any copy of such Roznamcha has been produced on record. Then referring to statement of PW-8 Dr. Rajiv Kaushik, it was submitted, that according to this witness, he was on night duty at 9 P.M. of 9.3.2000, till 9 A.M. of the next day, and that, injured Jagdish was admitted in male surgical ward B, Bed No. 16, and his statements were recorded at 7.10 A.M. While on being cross-examined, he has not been able to depose, as to what was the blood pressure, or the temperature of the injured, in absence of record, and no record has been produced. This coupled with the fact, that the Medical Jurist PW-11 had examined the injuries of Jagdish at 1 P.M. of 10.3.2000, informing the S.H.O. of the Police Station. This again negatives the theory of the statements have been recorded in the morning at 7 A.M. rather this shows that the injured was medically examined at 1 P.M. only. This coupled with the fact, that the Medical Jurist PW-11 had examined the injuries of Jagdish at 1 P.M. of 10.3.2000, informing the S.H.O. of the Police Station. This again negatives the theory of the statements have been recorded in the morning at 7 A.M. rather this shows that the injured was medically examined at 1 P.M. only. Then all proceedings were taken, and the purported statements were recorded, and were sent to Suratgarh, and that is why they were sent to the Magistrate in the evening, apart from the fact, that notwithstanding all this, the report, which may have been entertained by the S.H.O., Police Station Ganganagar, on information of the Medical Jurist PW-11, has not been produced on record. Then on cross-examination this witness had admitted, that it was Dr. Kailash Floor, who was the operating surgeon of Jagdish, and that the injury report Ex.13 was prepared by Dr. O.P. Garg, and it was mentioned by Dr. O.P. Garg that there was no gas under domes in Ex.P-13, and it is Dr. Garg only, who can explain the meaning of this expression. Learned counsel repeated that Dr. Garg and Dr. Floor have not been produced. Then learned counsel pointed out, that PW-1 is categoric to the effect, that he had scaled the wall, which was of 6 feet height, and was at a distance of 10 to 11 feet from his Kotha, and that he was bleeding all through, thus there was trail of blood, but then, from the site inspection note, and the statement of 1.0., it is clear, that no such blood has at all been found, even inside the Kotha, much less any trail of blood. Likewise, the injured is categoric, to the effect, that Gopi Ram's house is at a distance of about 200 feet from his house, and throughout the way he went on bleeding, and that garments of Krishna and Balwant also must have been smeared with blood, as they had lifted him, but then nothing of this sort has been found. Out of the two Krishna has not been examined, and Balwant, who has been produced as PW-3, does not depose any such thing. Likewise PW-1, in cross-examination is categoric, to the effect, that he came to home from hospital after two months, and thereafter his statements were recorded, while I.O. does not support the story. Out of the two Krishna has not been examined, and Balwant, who has been produced as PW-3, does not depose any such thing. Likewise PW-1, in cross-examination is categoric, to the effect, that he came to home from hospital after two months, and thereafter his statements were recorded, while I.O. does not support the story. It was also submitted that PW-2, the said uncle of Jagdish, has deposed, that when they went, Kamla was speaking, was asking for water, which they provided, and had also given out that one man had caught her, and other had inflicted stab wounds. He was confronted with his police statement Ex.D-2, wherein this was not mentioned and no explanation was offered. As against this, PW-3 Balwant has deposed, that when he reached, Gopi Ram and Krishna was already there, and has deposed in cross-examination, that Jagdish did not narrate him about the two appellants having inflicted injuries on him, nor did he ask either, and that, he had seen Kamla in the hospital at Suratgarh, who was unconscious, and was not speaking to anybody, while PW-4 Hanuman, who is the uncle of deceased Kamla, has deposed that he asked Kamla, who narrated, that at about 9-10 in the night, Shyam Sundar called Jagdish, then she heard the cry of ekj fn;k ekj fn;k] whereupon she went and saw, that Shyam Sundar was holding Jagdish, and Madan Lal was inflicting stab wounds. Then she intervened, whereupon Shyam Sundar caught her, and Madan Lal inflicted some 3-4 stab wounds. She started bleeding, and the villagers took them to Government Hospital in a jeep. Then they carried them to Ganganagar. Of course in cross-examination he has admitted, that in the hospital he had met Jagdish, who did not talk much with him, nor did he talk to Kamla, but has maintained, that Kamla was conscious, and she narrated the above story, after leaving Suratgarh for Ganganagar, after crossing Sheopura crossing, at about 12 in the night. With this it was submitted, that the whole prosecution case is sought to be rested on the testimony of the close relations of the injured and the deceased, inasmuch as, PW-1 Jagdish is the injured himself, PW-2 is the uncle of the injured, while PW-3 is the brother of PW-1, then PW-4 is the uncle of Kamla and PW-5 Devsi Ram is the uncle (cousin) of the deceased Kamla. It was then submitted, that on the investigation papers, no time of their preparation has been recorded by the police. Thus, according to the learned counsel, a wholly false case has been cooked up against the appellants, and they are entitled to be acquitted. 6. Shri V.K. Sharma, who is appearing for the complainant Jagdish, submitted, that the matter has been compromised between the parties, and Jagdish himself has filed an affidavit in the year 2001, being Ex.D-4, clearly disowning the whole incident, including the statements Ex.P-1, and thus, he does not have anything to say. He also submitted, that along with the affidavit, Ex.D-4, the injured Jagdish has also filed an application Ex.D-5, under Section 311 Cr.P.C., for recording his statement over again, on the call of his conscious. 7. Learned Public Prosecutor also submitted, that in view of the stand taken by the counsel for the complainant, he does not have anything to say either. 8. We have considered the submissions, and have gone through the record, with the assistance of the learned counsel for the appellant, and then over again for ourselves. 9. At the outset, on going through the record, it transpires, that on Ex.P,2, P-3 and inquest report and Fard Surat Haal Lash, Ex.P-4, the seizure memo of the garments of the deceased, Ex.P-5, memo of handing over the golden ornaments of the deceased, Ex.P-6, receipt of handing over of the dead body, Ex.P-7, the seizure memo of the blood stained garments of the injured Jagdish, Ex.P-10, the site inspection note of the place wherefrom knife was recovered, Ex.P-9A, Halat Mauka of the site where knife was recovered, Ex.P-16, the site inspection note of the place of incident, Ex.P-16A, Halat Mauka of the place of incident, Ex.P-17 the seizure memo of blood stained earth from the spot, Ex.P-18, seizure memo of control earth etc., no time of preparation of these documents has been mentioned, though of course, dates have been mentioned. 10. Then we straightway come to the statement of PW-12 Investigating Officer, before that we may notice, that according to PW-1, he is resident of village 2 KSR, and according to Ex.P-16A also, the place of incident is village 2 KSR. This Investigating Officer in cross-examination has admitted, that village 2 KSR is at a distance of about 12 tans. from Suratgarh, and is at a distance of about 2-3 kms. This Investigating Officer in cross-examination has admitted, that village 2 KSR is at a distance of about 12 tans. from Suratgarh, and is at a distance of about 2-3 kms. kuchha from the main road. He has admitted that on 9.3.2000 he did not receive any information about the injureds from the Government Hospital Suratgarh. He has also admitted that the residence of the Magistrate is at a distance of around one furlong from the Police Station Suratgarh, while the Court is at a distance of about 1/2-3/4 kms. He has admitted that in the requisite column, endorsement is not made as to when the F.I.R. was sent to the Court. Then he has stated that after registering the F.I.R. he immediately went to the spot along with Dy. S.P., took necessary proceedings, and in the noon he reached Government Hospital Ganganagar. He has admitted, that time is not mentioned about his reaching on the spot. He has also admitted that he completed all proceedings earlier, and then recorded the statement of the injured. He has deposed that site was not shown to Jagdish injured, because he was in serious condition. Then he has admitted that house of Gopi Ram is not shown in the site plan in the vicinity, because it must not be there. Then he has admitted that there were no animals in the Kotha, there was no blood at place X, which is the place of incident, to recollect, X is a place, where the injuries were inflicted on Jagdish, then he was taken out. Then he has also deposed that on that day he had no information about the incident, but on inquiries he learnt that the injureds had been brought in jeep, who were examined by the doctor outside the hospital itself, and in view of seriousness of their condition, they were sent to Ganganagar. He has deposed that he does not know as to whether injureds were given first aid or not at the Government Hospital Suratgarh. It may be observed here, that it has come in evidence, that after giving first aid at Suratgarh, they were referred to Ganganagar. He has also stated it to be wrong that he recorded the statement of Jagdish after a gap of two months, after recording the Parcha Bayan, Ex.P-1. It may be observed here, that it has come in evidence, that after giving first aid at Suratgarh, they were referred to Ganganagar. He has also stated it to be wrong that he recorded the statement of Jagdish after a gap of two months, after recording the Parcha Bayan, Ex.P-1. He is categoric to the effect, that there was no blood in the Kotha, and that no test identification parade of the accused was got conducted. He has also deposed that on the site, there was no gas cylinder, nor any lamp, otherwise it would have been taken into possession, and would have been shown in the site plan. He has also deposed that injured Jagdish did not give out about his having gone to the house of Gopi Ram by scaling the wall. He did not inspect the house of Gopi Ram, he did not take into possession the blood stained cloths of Krishna and Balwant. He has denied the suggestion, about the whole story having been prepared, according to the desires of Balbir Ram and Sukhram (father and brother of the deceased). He has also admitted that the tip of the knife is slightly bent. 11. Then we come to the statements of PW-1 Jagdish, the injured, who is normally required to be addressed as a branded witness, and claims to be the eye-witness. After narrating the background, he has stated, that at about 9 to 10 in the night of 9.3.2000, when he was sleeping in the room, his son Shyam Sundar came and called him out, when he came out Shyam Sundar was found to be standing near the Kotha of animals, when the witness reached there, he was pushed inside the Kotha, where his elder son Madan Lal was there, who inflicted the stab wounds in the abdomen. He started bleeding and omentum came out. Thereupon he raised a cry, whereupon his wife Kamla came out, she also raised a cry, and then Shyam Sundar said that he should be spared, and this Rand should be caught, as she is shouting. Then Shyam Sundar and Madan Lal inflicted stab wounds on her, and also gave kick blows. Then he went in injured condition to the house of Gopi Ram, by scaling the wall. He narrated the whole story to Gopi Ram. Then Shyam Sundar and Madan Lal inflicted stab wounds on her, and also gave kick blows. Then he went in injured condition to the house of Gopi Ram, by scaling the wall. He narrated the whole story to Gopi Ram. Thereafter Krishna and Balwant came on the site, both of whom came there, brought him to his house. Then in a jeep they were got admitted in Suratgarh hospital, where enumerable persons gathered, including Hanuman. Then doctor referred them to Ganganagar, where they were got admitted, and Kamla died in the hospital. His statement Ex.P-1 was recorded. He was medically examined. He remained admitted in Ganganagar hospital for two months, where from he was referred to M.N. Hospital, Bikaner. This is the whole evidence of PW-1. He was cross-examined at length, and he has deposed ignorance about the earlier husband of Kamla being alive, or about her husband being aggrieved of Kamla having married him. He has stated to have built a rew house, and to have given away the old house to the sons some one year ago before the incident. Then he has admitted that there was electricity in his house earlier, there was meter also, which was taken away one year ago, as the bill of Rs. 2,500/- was not paid by the accused persons. The meter was in the old house. Then he has deposed that his statements were recorded twice, once when he was in the hospital, and second time after two months, when he came to the house, and in both the statements he had deposed the existence of electricity, though it is not mentioned in Ex.P-1 and D-1. He is categoric, to the effect that injuries were inflicted on him inside the Kotha of animals, and has deposed that at that time he could not identify Madan Lal, as there was dark in the Kotha, then when he came out, his wife raised cries. Then he has changed the stand, by deposing that one gas cylinder and bulb was on, and in that light he identified Madan Lal to be his assailant. He has deposed that in Ex.P-1 and D-1 he, had stated the existence of gas cylinder being on, though it is not mentioned there. He has also deposed that he is stating about gas cylinder today, because at that time there was no electricity. He has deposed that in Ex.P-1 and D-1 he, had stated the existence of gas cylinder being on, though it is not mentioned there. He has also deposed that he is stating about gas cylinder today, because at that time there was no electricity. He has maintained that despite omenturn coming out, he did not fall in the Kotha. Kamla did not enter. the Kotha, and injuries were inflicted on Kamla in the Bakhal, which is situated between the two Kothas. Then he was confronted with Ex.D-1 and P-1 again, to the effect that he has not mentioned therein, that he went to Gopi Ram's house by scaling the wall, and he stated, that he does not know as to why it is not there. He is categoric, to the effect that his blood at fallen inside the Kotha, and outside, as well. He has denied the suggestion, about his having not been called by Shyam Sundar, rather he himself to have gone to see the cattle, and some unknown person having inflicted injuries on him and his wife. He has maintained that his wife never become unconscious, rather she was speaking till death. He has maintained that it was dark night, but light was there. He has also maintained that gas is there in his house, and was not taken into possession by the police. Then he has stated that at about 11 in the night, they reached Government Hospital Suratgarh. Then he has stated that the wall which is scaled is at a distance of about 10-11 feet from the Kotha, and is 6 feet high, and he left trail of blood till the wall. He has stated that there was a table lying near the wall, and with its assistance he could scale the wall. Then he has deposed that Dy. S.P. has come to his house, and had recorded his statements, as there was second investigation. Then he has maintained that the house of Gopi Ram is at a distance of about 35 paces, which is about 200 feet, and he left the trail of blood over all the distance. Then he has maintained that the cloths of Krishna and Balwant also got stained with blood when they lifted him. This is the whole state of evidence of Jagdish. 12. Then he has maintained that the cloths of Krishna and Balwant also got stained with blood when they lifted him. This is the whole state of evidence of Jagdish. 12. In the trial, on that very day, statements of Gopi Ram, the uncle of Jagdish were also recorded, according to him, Jagdish came in street of his house shouting, and when he came out, Jagdish narrated that Madan Lal and Shyam Sundar have inflicted knife injuries on him and Kamla, Jagdish had injuries on his abdomen, hearing the cries, Krishna and Balwant and Dhanpat had also come (this Dhanpat has not been examined). Then they went to the house of Jagdish, along with him, and found, Kamla injured. Kamla was carrying pregnancy and the accused did not want her to bear any child. According to him, then they took the injured to Suratgarh hospital, where doctor referred them to Ganganagar. They were got admitted in Ganganagar, where Kamla died. In cross-examination he has stated, that there was electricity available in the house of Jagdish, and when they went the electric bulb was on. He was not examined by the police, and police did not meet him in connection with this case at all. When they reached, Kamla was asking for water, and they did give water to her. In Suratgarh hospital first aid was given, i.e. wounds were bandaged and glucose bottle was put. He has maintained that Jagdish had told him about only one person inflicting injuries with knife, while Kamla had told that one person held, and other inflicted injuries with knife. Then he has stated that his statements were recorded at Ganganagar, and not at Suratgarh, and in those statements, he did not state about Kamla having told the above. Then he turned round, and said, that he stated it to the police, and does not know as to why it is not in Ex.D,2. He has stated that Kamla was conscious. 13. Then comes the evidence of Balwant PW-3. He calims to be the brother of Jagdish. Then he turned round, and said, that he stated it to the police, and does not know as to why it is not in Ex.D,2. He has stated that Kamla was conscious. 13. Then comes the evidence of Balwant PW-3. He calims to be the brother of Jagdish. He has narrated the background, and has then deposed that at about 9-10 P.M. on 9.3.2000 he was sleeping in the house, and heard the cries, thereupon he came out, and saw that people had collected outside the house of Gopi Ram, there Jagdish was narrating, that since Shyam Sundar and Madan Lal have inflicted knife blows on him, then they carried Jagdish to his house, there he found Gopi and Krishna to be already available, they found Kamla to be injured. Then he went to fetch the jeep, on way military people intercepted him, therefore, he sent a jeep and he reached the house of Jagdish on motorcycle, where Sarpanch and villagers were putting the injureds in the jeep. The injureds were carried to Government Hospital Suratgarh, where they were given first aid, and were referred to Ganganagar, where Kamla died. We may observe here, that it is not stated by Gopi Ram or Jagdish, that people had collected at the house of Gopi Ram, and it was also not stated, that Krishna had already reached there. Likewise, nobody has stated, that at the house of Jagdish, Sarpanch and villagers had collected. Obviously if Sarpanch were there, he was supposed to report the matter to police immediately. Then he has testified certain memos. In cross-examination he has stated that his house is at a distance of 40 feet from the house of Krishna, and that the residence of Krishna is at a distance of 130 feet from the main gate, and that the distance between his main gate and the main gate of Gopi is 70 feet, and that his house and Krishna's house are adjoining, on one side of his house there is a public way, and that there is no other house in between his house and the house of Jagdish. In front of his house, there is house of Krishna Lal Pandit, and adjoining is the house of Dharmchand, butthen he did not see Krishna Lal Pandit at the site. In front of his house, there is house of Krishna Lal Pandit, and adjoining is the house of Dharmchand, butthen he did not see Krishna Lal Pandit at the site. He has stated that Jagdish did nont personally tell him about Madan Lal and Shyam Sundar having inflicted knife blows, nor did he ask him, he did not go near Kamla. The jeep in which the injureds were carried to hospital, Sarpanch Ramswaroop, Up-Sarpanch Shrikrishna, were also probably in the jeep. He has maintained that there was light in the house of Jagdish. Then he has stated that police did not come at Suratgarh. He claims to have accompanied the injureds at Ganganagar, and that they stayed in Suratgarh hospital for half an hour. The jeep of Jagdish and Kamla reached Suratgarh hospital half an hour before he reached the hospital. The wounds of Kamla were bandaged at Suratgarh and glucose bottle was administered. In one jeep Jagdish was being carried, and in other jeep, Kamla was being carried, and he does not remember, as to in which jeep he was travelling while going to Ganganagar. He maintains that he had seen Kamla, who was unconscious, and was not speaking to anybody. Then he has maintained that he lifted Jagdish from outside the house of Krishna and Gopi, and did not see him outside the house of Gopi Ram, he was confronted with his police statements, wherein it is not mentioned, that he went on motorcycle to fetch the jeep, or that he was intercepted by the military. These are the two witnesses from the side of the injured. 14. Then PW-4 Hanuman is the uncle of the deceased, who has deposed that his niece Kamla was married to Jagdish, after one and a half years of that marriage, accused persons started raising dispute, he extended good counseling some 2-3 times, then some 8 months ago, the nephew of the witness, being Birbal Ram, came and informed, that in the night the two appellants have inflicted knife injuries to Jagdish and Kamla, who have been taken to Suratgarh hospital. Then he went on motorcycle to Suratgarh, along with Birbal, and saw the injureds in pool of blood, Balwant and Krishna, the brothers of Jagdish were also there. There the doctors referred them to Ganganagar. Then he went on motorcycle to Suratgarh, along with Birbal, and saw the injureds in pool of blood, Balwant and Krishna, the brothers of Jagdish were also there. There the doctors referred them to Ganganagar. The witness there asked Kamla, who narrated, that at about 9-10 in the night Shyam Sundar called, whereupon Jagdish went out, then she heard the cries of li17 f4qi TIR Rtif, whereupon she went, and saw that Shyam Sundar was holding Jagdish and Madan Lal was inflicting knife injuries. Then she started intervening, whereupon Shyam Sundar caught hold of her and Madan Lal inflicted injuries on her with knife, and she started bleeding. Then villagers brought them to Government Hospital. According to the witness, then they took all these injureds to Ganganagar, and got them admitted, then in the morning at about 5-6 A.M. Kamla died. Kamla was carrying the pregnancy of 5-6 months. n cross-examination he has admitted, that Sukhram the father of Kamla is his cousin, Sukhram were two brothers, the other being Shivkaran, who has died, Sukhram has two sons, Birbal and Patram. He stated that when Birbal came, his wife and children were at the house, and Birbal called him aside, and narrated, however, he did not narrate it to his family members, and left the house only by telling that he is going only for some work. He has stated that distance between his village Sangar and 2 KSR is 9 to 10 kms. Birbal had received telephonic information on the PCO, which is available at the house of Omji. They immediately went to Suratgarh and did not go to 2 KSR, and reached Suratgarh within 20-25 minutes, at about 11-11.30 in the night. When he reached Suratgarh, apart from Krishna and Birbal, many other persons were also there. He met Jagdish, but did not talk much, nor did he talk to Kamla. Kamla was bleeding too much, but was in senses. Then he has deposed that Kamla narrated the story after leaving Suratgarh, and after crossing Sheopura crossing,iat about 12 in the night. Kamla and Jagdish were travelling in separate Jeeps, Balwant and Birbal were with him. Then he stated that earlier husband of Kamla is Bhala Ram, from whom she had two daughters. Then he has deposed that Kamla narrated the story after leaving Suratgarh, and after crossing Sheopura crossing,iat about 12 in the night. Kamla and Jagdish were travelling in separate Jeeps, Balwant and Birbal were with him. Then he stated that earlier husband of Kamla is Bhala Ram, from whom she had two daughters. Then he has stated that they reached Ganganagar at about 11/2 - 13/4 (thus, the distance from Suratgarh to Ganganagar requires this much time to travel): He was confronted with his police statement, and he has deposed that he stated therein, that Kamla had told that Shyam Sundar was holding and Madan Lal was inflicting blows, but it is wrongly mentioned therein, that both the accused persons inflicted knife injuries to Jagdish. 15. This is the only evidence regarding the incident. Other witnesses are regarding memos, carrying the samples to the Forensic Science Laboratory, 1.0., the doctors, and Hemraj PW-10, who recorded the Parcha Bayan Ex.P-1. 16. This PW-10 has stated, that he recorded the statement under supervision of the doctor, after obtaining consent from the Doctor (Dr. Kaushik). In cross-examination he has admitted, that he did not receive any information for recording statement, however, telephone call was received by the S.H.O. and he ordered him to record the statement. Then he made an entry (Rapat) in the Roznamcha, and came to record statement, though that Roznamcha has not been brought by him today, nor its copy has been produced on record. No written order was given by the S.H.O., and has deposed that immediately after recording the statement, he forwarded the statement to Suratgarh. 17. After going through the above evidence, and going through the material on record, there is no doubt, that the incident did take place, and the two persons were the victims, out of whom Kamla has died, but then, how the incident occurred, where did it occur, and how the injureds were taken to hospital etc., is all shrouded in mystery. We are not able to get any reliable clear picture in this regard. We are not able to get any reliable clear picture in this regard. If we were to believe the version, given out by Jagdish as PW-1, and as given in Ex.P-1, admittedly he did not identify the assailant to be Madan Lal, as there was dark in the room, and claims to have identified, because as there was light, but then, this theory, of light being there is negatived by the site plan and site inspection note Ex.P-16 and P-16A, so also PW-12, the I.O., Sarvar Ali. That apart, even the statement of Jagdish, in this regard also is vacillating, inasmuch as, whether there was electric light, or there was gas light, or whether electric connection was there in this house or in the old house, which he claims to have given away to the accused, is all not clear, while according to PW-2 there was electric bulb on, at the house of Jagdish, at the time when they reached the house of Jagdish. Thus it cannot be safely believed, that there was electricity or any other light available in the house of Jagdish, at the time of incident. 18. Secondly, as the story goes, that Jagdish was inflicted injuries inside the Kotha, where animals are tethered. Even according to the injury report Ex.P-13, which appears to be marked as Ex.P-13 on more than one documents, being injury report, F.I.R., and MLC X-ray report, the injured was having stab wounds, omentum had come out and according to Jagdish he started bleeding there only, and in that condition scaled the wall with the assistance of table, travelled the distance of about 200 feet, and reached the house of Gopi Ram the uncle, and during all this distance, he left the trail of blood. As against this, according to Ex.16 and 16A and PW-12, blood was found only at point Y, which is a place in the Bakhal, where injuries are said to have been caused to Kamla, and no blood was found at any other place. This creates a million dollar suspicion, as to where the incident occurred, and the truthfulness of the sequence of events, as the Court is asked to believe, by the prosecution. 19. This creates a million dollar suspicion, as to where the incident occurred, and the truthfulness of the sequence of events, as the Court is asked to believe, by the prosecution. 19. Thirdly, the house of Gopi Ram is not shown in the site plan, Ex.P-16, or the site inspection note, Ex.P-16A, and according to PW-12 it must not have been there, and therefore only it has not been shown, while according to the site plan, Ex.16 the house of Balwant is there in the north after leaving the way. This Balwant, as noticed above, has appeared as PW-3, and has allegedly given detailed location of different houses, but then, he has not shown as to whether the house of Gopi Ram, the uncle PW-2, was there, because it has come on record, that Gopi and Gopi Ram are two different persons, and he has shown the location of the house of Gopi, and not of the uncle Gopi Ram. Likewise, from Ex.16 it is clear, that in the east, north and south of the house of Jagdish, there is a public way. Then in the south after the way, there is house of Ballu Ram. Obviously therefore, even if we were to conjecture, the house of Gopi Ram could be in the west. Then in Ex.P-16A the distance from A to C (A being the Kotha, where the injured was sleeping and other being the place outside the Kotha of animals) is said to be around 30 feet, and according to PW-1, the wall which is scaled, at a distance of about 10-11 feet from the Kotha of animals, while from a naked eye observation of Ex.P-16, no wall is visible available at the aforesaid distance in Ex.P-16, which could be scaled by the injured, to enable him to reach the house of Gopi Ram, to call. Then the evidence also shows, that according to prosecution, at the house of Gopi Ram, enumerable persons had collected. Then, where the injured were carried to hospital, Sarpanch and the Up-Sarpanch were also there along with them, but significantly, nobody has been produced. According to Balwant, he went on motorcycle to fetch the jeep, while according to Hanuman, PW-4, he straightway reached Suratgarh on motorcycle. Then, where the injured were carried to hospital, Sarpanch and the Up-Sarpanch were also there along with them, but significantly, nobody has been produced. According to Balwant, he went on motorcycle to fetch the jeep, while according to Hanuman, PW-4, he straightway reached Suratgarh on motorcycle. As against this, the witnesses are categoric to the effect, that from Suratgarh they were taken to Ganganagar in two jeeps, and in one jeep, Jagdish was being carried while in other, Kamla was being carried. It has not been clarified as to where-from the second jeep emerged. At least the jeep driver, in whose jeep the victims were carried from 2 KSR to Suratgarh, and to Ganganagar, has also not been produced. Added to this is a mighty circumstance, that as has come in the evidence, that the injureds were given first aid at the Government Hospital Suratgarh, they stayed there for about half an hour, obviously the two injureds were having stab wounds and Kamla was in a serious condition, still even the doctors at Suratgarh did not inform the police at Suratgarh, and the prosecution has not examined the doctors of Suratgarh, who first attended the victims, obviously to whom the version must have been narrated, as to how the incident occurred. Then as deposed by Hanuman, he reached Suratgarh at about 11.30 in the night, and it takes about something less than 2 hours to reach Ganganagar, then it can be assumed, that the injureds reached Ganganagar before 1 in the night. Still the record of the hospital has not been produced to show, as to what was done from the time of the injureds reaching to Ganganagar hospital, till the alleged recording of Ex.P-1. The operating doctor, Dr. Krishna Floor has not been examined by the prosecution, nor, the medical record has been produced. 20. Still the record of the hospital has not been produced to show, as to what was done from the time of the injureds reaching to Ganganagar hospital, till the alleged recording of Ex.P-1. The operating doctor, Dr. Krishna Floor has not been examined by the prosecution, nor, the medical record has been produced. 20. In this background, from a look at Ex.P-1 it is clear, that it purports to be recorded at 7 A.M., while the endorsement of the doctor about condition of the injured purports to be 7.10 A.M. Since according to PW-10, he had gone to record statement after making entry in the Roznamcha, after recording statement he must have gone back to the Police Station Ganganagar, and made entry about his arrival back, and then only would have forwarded the statement to Suratgarh, in which event it cannot be believed that it could reach Suratgarh at 9.30 in the morning, in view of the distance between the two places. This again, coupled with the fact, that in the various memos Ex.P-2, P-3 the inquest report and Fard Surat Haal Lash, Ex.P-4, the seizure memo of the garments of the deceased, Ex.P-5 memo of handing over the golden ornaments of the deceased, Ex.P-6 receipt of handing over of the dead body, Ex.P-7 the seizure memo of the blood stained garments of the injured Jagdish, Ex.P-10 the site inspection note of the place where-from knife was recovered, Ex.P-9A Halat Mauka of the site where knife was recovered, Ex.P-16 the site inspection note of the place of incident, Ex.P-16A Halat Mauka of the place of incident, Ex.P-17 the seizure memo of blood stained earth from the spot, Ex.P-18 seizure memo of control earth etc., time of their preparation has not beci, dienlioneci, and the information reaches the Magistrate only at 7 in the evening, despite the residence of the Magistrate being only at a distance of 1 furlong from the Police Station, apart from the fact that, that was a working day, and the Court is at a distance of 44 Ions. from the Police Station. 21. from the Police Station. 21. In our view, these all circumstances, taken together, leaves no manner of doubt, that prosecution has deliberately concealed, as to how the incident occurred, who were the assailants, and what was the sequence of events, and it is only after death of Kamla, that stories have been cooked up, and then evidence has been manufactured. It may be pointed out, that according to PW-4, he is a resident of Sangar, the parental place of Kamla, and is the uncle of the deceased, while Balwant PW-3 is the brother of Jagdish. Thus obviously, the two being close relations inter-se, are supposed to know each other, and in this background, PW-3 has clearly stated, that he did not see anybody from Sangar at Suratgarh hospital, while according to PW-4 he reached Suratgarh on motorcycle, and accompanied the injured Kamla to Ganganagar, in jeep. 22. It appears, that after death of Kamla, under the pressure of parental relations of Kamla, in order to en-cash the death, the story was cooked up, about the two appellants being assailants, and the motive was also invented, on the ground of Kamla carrying pregnancy, and this was so suggested to the material witnesses, and has been the stand of Madan Lal, in his statement under Section 313, apart from the fact, that Kalu Ram DW-4, the third brother, who was living with Jagdish, has not supported the version deposed by Jagdish. It is significant to note, that Kalu Ram was shown by the prosecution as its witness, and obviously since he was living with Jagdish, he was supposed to know, as to how the incident originated, and occurred, and what happened thereafter, and he has clearly stated, that it was a case of some unknown person inflicting injuries, Kamla being conscious till death, he being there all through in the hospital, and that false case having been cooked up at the behest of Birbal Ram and Sukhram, the father and brother of the deceased. Secondly even according to Hanuman, telephone message was received by Birbal Ram on STD PCO of Omji, and he narrated the things to Hanuman, but then this Birbal has also not been produced by the prosecution, for reasons best known. 23. Secondly even according to Hanuman, telephone message was received by Birbal Ram on STD PCO of Omji, and he narrated the things to Hanuman, but then this Birbal has also not been produced by the prosecution, for reasons best known. 23. Thus, considering the material from any standpoint, it is of course true, that the incident occurred, in which one person unfortunately died, and other received injures, but then, it is not established by reliable evidence, by the. prosecution, that the incident occurred in the manner, as projected, and was caused by the two accused persons, as the Court were asked to believe, and thus, in our view, the conviction cannot be sustained at all. 24. The result of the aforesaid discussion is, that the appeal is allowed. The impugned judgment is set aside. Both the accused persons are acquitted of all the charges. Accused Shyam Sundar is on bail, his bail bonds stand cancelled, and the accused Madan Lal be released forthwith, if not required in any other case.Appeal allowed. *******