JUDGMENT Prafulla C. Pant, J. (Oral) This appeal preferred under Section 378 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 16.08.2001 passed by the Additional Sessions Judge/I Fast Track Court, Dehradun in Sessions Trial No.113 of 1995, whereby said court has acquitted the accused/respondents Dhoom Singh, Kanwar Singh and Saran Singh from the charge of offences punishable under Sections 302 read with Section 34, under Section 325 read with Section 34 and under Section 323 read with Section 34 I.P.C. 2. Heard learned Brief Holder for the State and learned Amicus Curiae for the accused/respondents. 3. Prosecution story in brief is that Rakam Singh (deceased) was real brother of accused/respondent-Dhoom Singh. Accused/respondents Kanwar Singh and Saran Singh are sons of accused Dhoom Singh. There was land dispute between two brothers, namely, Rakam Singh (deceased) and Dhoom Singh (accused/respondent no.1). On 24.02.1993 at about 09:30 p.m. in village Rasem Mazri when Rakam Singh went to his brother Dhoom Singh asking for partition of his share in the land, which was being cultivated by Dhoom Singh and his sons, the three accused/respondents armed with Dandas assaulted him and killed him. Meanwhile, P.W.2 Vidhya Devi (widow of Rakam Singh) came there and intervened on which three accused/respondents, namely, Dhoom Singh and his sons Kanwar Singh and Saran Singh assaulted her. She also suffered injuries. On the next day (25.02.1993), First Information Report (Ext.A-1) was lodged by P.W.1 Gyan Singh (one of the eyewitnesses) at about 08:30 a.m. at Police Station Doiwala, District Dehradun. On the basis of the First Information Report (Ext.A-1) Crime No.50 of 1993 was registered in respect of offences punishable under Sections 302 and 323 I.P.C. against the three accused, namely, Dhoom Singh, Kanwar Singh and Saran Singh. Investigation was taken up by P.W.9 Sub Inspector, R.S. Rana, who went to the spot took the dead body of Rakam Singh in his possession and prepared inquest report (Ext.A-5). He also got prepared other necessary papers e.g. Letter (Ext.A-9) to Chief Medical Officer requesting for post mortem examination, Police Form no.13 (Ext.A-11), Sketch of Dead Body (Ext.A-12) and Sample Seal (Ext.A-13) etc. P.W.9 Sub Inspector, R.S. Rana recovered the three Dandas used in the crime by the accused and prepared memorandum (Ext.A-6). He also prepared Site Plan (Ext.A-7) after inspecting the spot. P.W.6 Dr. P.W.9 Sub Inspector, R.S. Rana recovered the three Dandas used in the crime by the accused and prepared memorandum (Ext.A-6). He also prepared Site Plan (Ext.A-7) after inspecting the spot. P.W.6 Dr. S.C. Singhal conducted post mortem examination on the dead body of Rakam Singh on 26.02.1993 at about 05:00 p.m. and prepared autopsy report (Ext.A-3) in which he recorded as many as five ante-mortem injuries and opined that deceased had died of shock and haemorrhage due to ante-mortem injuries. Meanwhile, P.W.2 Vidhya Devi, one of the eyewitnesses, who suffered injuries in the incident was medically examined by Dr. B.B. Sharma on 25.02.1993 at about 12:50 p.m. who prepared injury report (Ext.A-4) and mentioned as many as nine injuries suffered by her. After interrogating witnesses and on completion of investigation, Investigating Officer submitted chargesheet (Ext.A-15) against three accused/respondents Dhoom Singh, Kanwar Singh and Saran Singh for their trial in respect of offences punishable under Sections 302, 323 and 325 I.P.C. 4. The Magistrate on receipt of chargesheet, after giving necessary copies to the accused as required under Section 207 Cr.P.C. appears to have committed the case to the court of Sessions for trial. On 17.04.1996, the trial court after hearing the parties framed charge of offences punishable under Sections 302 read with Section 34, 325 read with Section 34 and, under Section 323 read with Section 34 I.P.C. against all the three accused, namely, Dhoom Singh, Kanwar Singh and Saran Singh who pleaded not guilty and claimed to be tried. 5. On behalf of the prosecution P.W.1 Gyan Singh (Informant), P.W.2 Vidhya Devi (injured eyewitness), P.W.3 Ranveer Singh (eyewitness/son of the deceased), P.W.4 Kunwar Pal (declared hostile), P.W.5 Dr. Suresh Mehta (who radiologically examined the injury on the arm of injured witness Vidhya Devi), P.W.6 Dr. S.C. Singhal (who conducted post mortem examination), P.W.7 Dinesh Singh Negi (Pharmacist of Doiwala Hospital, who proved injury report [Ext.A-4] relating to Vidhya Devi), P.W.8 Raja Ram (witness of inquest report) and P.W.9 Sub Inspector R.S. Rana, Investigating Officer, were got examined. 6. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they pleaded that they have been falsely implicated due to enmity. No evidence in defence was adduced. 6. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they pleaded that they have been falsely implicated due to enmity. No evidence in defence was adduced. The trial court after hearing the parties, found that prosecution has failed to prove charge of offences punishable under Section 302/34, 325/34 and 323/34 against accused/respondents Dhoom Singh, Kanwar Singh and Saran Singh beyond reasonable doubt, and acquitted them accordingly. Aggrieved by the said judgment and order dated 16.08.2001 passed by the learned Additional Sessions Judge/I Fast Track Court, Dehradun in Sessions Trial No.113 of 1995, this appeal was preferred by State on which leave was granted. 7. Before further discussion, this Court thinks it just and proper to mention ante-mortem injuries recorded by P.W.6 Dr. S.C. Singhal at the time of conducting the post mortem examination on 26.02.1993 on the dead body of Rakam Singh. The five ante-mortem injuries recorded in Ext.A-3 are being reproduced below:- “i. Abraded contusion 8cm x 5cm over right hand. ii. Contused abrasion on left side of back in the area of 10 cm x 9 cm. iii. Contused abrasion over two and half cm x 2 cm on the left side of the back. iv. Abraded contusion on the upper part of the chest. v. Contusion on the left side of lower back 3 cm x 2 cm.” On internal examination six ribs were found fractured on the right side and six ribs were found fractured on the left side. Pleura was found ruptured. The medical officer (P.W.6) Dr. S.C. Singhal opined that deceased had died of shock and haemorrhage, as a result of ante-mortem injuries. In his examination in chief, he further opined that the deceased could have suffered injuries with Lathi or Danda on 24.02.1993 at about 09:00-09:30 p.m. In his cross- examination, P.W.6 Dr. S.C. Singhal told that the abrasions can be caused by friction, and mere abrasions are not sufficient in ordinary course to cause death. 8. From the medical evidence on the record as discussed above, this Court finds that it is proved on the record that Rakam Singh died homicidal death as under the contused injury suffered by him on the chest his six ribs were found broken on the left side, and six ribs were found broken on the right side and his pleura was found ruptured. Now we have to examine whether the accused/respondents Dhoom Singh and his sons Kanwar Singh and Saran Singh, with common intention, committed murder of Rakam Singh for which they were charged, or not? 9. P.W.2 Vidhya Devi, widow of the deceased, is injured eyewitness witness of the case. She has stated that on the day of incident at about 09:00 p.m. there had been quarrel between her husband (Rakam Singh) and his brother Dhoom Singh, on being asked by her husband partition of his share in the land. She further narrated that her son, Ranveer Singh was with his father (Rakam Singh). She further stated that he (P.W.3) Ranveer Singh came running to her and told that the accused Dhoom Singh and his son Saran Singh and Kanwar Singh were assaulting his father (Rakam Singh). P.W.2 Vidhya Devi further told that on this she ran to the place of incident and intervened but she too was beaten by the three accused/respondents with Dandas, and she suffered injuries in the incident. 10. The statement of P.W.2 Vidhya Devi gets corroborated from the medical evidence on record i.e. Ext.A-4, the report prepared by Dr. B.B. Sharma on 25.02.1993 after examination of injuries found on person of Vidhya Devi. Said report discloses that following nine injuries were found on the person of Vidhya Devi (P.W.2):- “i. Lacerated wound on left side of scalp situated 4cm above the left ear base 3 cm x .5 cm muscle deep, blood clot present. ii. Contusion with lacerated wound on the back of left forearm situated 5.5 cm below the elbow joint 1.5 cm x .5 cm blood clots present, contused area bluish. iii. Lacerated wound on the back of the left forearm situated 5 cm below the injury no.2 measuring 1.3 cm x .5 cm x muscle deep, blood clots present. iv. Traumatic swelling on the whole of left arm advised x-ray left upper and forearm A.P. and lateral, referred to Doon Hospital, Dehradun. vi. Multiple abrasion with Traumatic swelling on the whole of right forearm advised x-ray right forearm bluish in colour, advised and referred to orthopaedic surgeon Doon Hospital Dehradun. vii. Lacerated wound on the outer side of the right upper arm measuring 1cm x .5cm x muscle deep, blood clots present. viii. Lacerated wound on the front of left leg just in middle 2 cm x 1 cm, blood clots present. ix. vii. Lacerated wound on the outer side of the right upper arm measuring 1cm x .5cm x muscle deep, blood clots present. viii. Lacerated wound on the front of left leg just in middle 2 cm x 1 cm, blood clots present. ix. Lacerated wound on the multiple aspect of right leg situated 5 cm below knee joint 1 cm x .5 cm blood clot present. x. Traumatic swelling on the whole of right lower leg advised x-ray right lower leg A.P and lateral. ‘Opinion :-injury no.4, 5 and 9 kept under observation till x-ray report. Other injuries simple in nature. All injuries caused by blunt hard object. Duration about one day old.’ 11. Learned Amicus Curiae on behalf of the accused/respondents submitted that the medical officer, who recorded the above mentioned injuries was not examined by the trial court and as such, above evidence cannot be read in evidence. We are unable to accept the submission advanced on behalf of the learned Amicus Curiae for the reason that the above mentioned report Ext.A-4 stood proved from the statement of P.W.7 Devendra Singh Negi, Pharmacist of the Hospital where Dr. B.B. Sharma was posted. The said witness (P.W.7) has stated the Dr. B.B. Sharma, who was posted in 1993 in the Hospital has died. P.W.7 Devendra Singh Negi identified the handwriting and signature of the medical officer (Dr. B.B. Sharma) on which the document was exhibited. In the circumstances, we are of the view that there is no impediment in reading the report prepared by Dr. B.B. Sharma, which is proved by P.W.7 Devendra Singh Negi. 12. The oral evidence adduced by P.W.2 Vidhya Devi gets further corroboration from the statement of P.W.1 Gyan Singh who lodged First Information Report Ext.A-1. The said witness has stated that on the day of incident Dhoom Singh and Rakam Singh quarrelled over the land dispute and he further told at the end of his examination in chief that he reached at the spot, on hearing noise on account of the quarrel and saw the three accused/respondents beating with Dandas to Rakam Singh, who died on the spot. 13. P.W.3 Ranveer Singh (minor son of deceased) has also corroborated the prosecution story as narrated by his mother. 13. P.W.3 Ranveer Singh (minor son of deceased) has also corroborated the prosecution story as narrated by his mother. On careful examination of the statements of the three eyewitnesses, particularly the statement of the injured eyewitness P.W.2 Vidhya Devi, we are of the view that the prosecution has proved beyond reasonable doubt that accused/respondents Dhoom Singh and his sons Kanwar Singh and Saran Singh with common intention committed murder of Rakam Singh, and thereafter assaulted and voluntarily caused the grievous hurt to P.W.2 Vidhya Devi. P.W. 5 Dr. Suresh Mehta, the Radioligist of Doon Hospital has proved the fact that on x-ray examination of Vidhya Devi on 26.02.1993, he found that there was fracture in the right ulna of the injured. The injured witness has no reason to implicate the accused/respondents leaving the real culprit. 14. Learned Amicus Curiae pointed out that P.W.4 Kunwar Pal has not supported the prosecution case and the trial court has rightly found charge not proved beyond reasonable doubt. But on scrutiny of evidence of P.W.4 Kunwar Pal, we found that he is witness of inquest report only. Though he has not supported the prosecution case but P.W.8 Raja Ram, another witness of the inquest report, has proved the same (Ext.A-5) as such, though P.W.4 Kunwar Pal has turned hostile but the same is not enough to shake the prosecution case. 15. Having re-appreciated the entire evidence on record and after considering the submissions of learned counsel for the State (appellant) and learned Amicus Curiae for the accused/respondents, we are of the considered opinion that trial court has erred in law in acquitting the accused in the present case. 16. For the reasons as discussed above, this appeal deserves to be allowed. Therefore, the appeal is allowed. The impugned judgment and order dated 16.08.2001 passed by I Fast Track Court/Additional Sessions Judge, Dehradun in Sessions Trial No.113 of 1995 is hereby set aside. Accused/respondents Dhoom Singh and his sons Kanwar Singh and Saran Singh are convicted under Sections 302 read with Section 34 and under Section 325 read with Section 34 I.P.C. After hearing on sentence, each one of the convicts is sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- under Section 302 read with Section 34 I.P.C., and rigorous imprisonment for a period of one year and directed to pay fine of Rs. 5,000/- under Section 302 read with Section 34 I.P.C., and rigorous imprisonment for a period of one year and directed to pay fine of Rs. 5,00/- under Section 325 read with Section 34 I.P.C. In default of payment of fine directed to paid under Section 302/34 I.P.C., the defaulter/convict shall undergo further six months rigorous imprisonment, and in default of payment of fine directed to be paid under Section 325/34 I.P.C., the defaulter/convict shall undergo further three months rigorous imprisonment. 17. Registry is directed to send the lower court record back to the trial court with copy of this judgment to make all the three accused/respondents Dhoom Singh, Kanwar Singh and Saran Singh serve out the sentence awarded by this Court as above. It is further clarified that sentences awarded under Section 302/34 I.P.C. and one awarded under Section 325/34 I.P.C. shall run concurrently.