JUDGMENT Mr. Kuldip Singh J.: - Accused-appellants Ganga Sarup alias Ganga Ram son of Dharam Singh Pandit, Ram Niwas son of Karam Singh Pandit and Satish Kumar son of Ganga Sarup have filed this appeal against judgment and order dated 23.07.2002/25.07.2002 passed by learned Addl. Sessions Judge, Sonepat, vide which they along with co-accused Vinod Kumar and Krishan @ Kala were convicted under Sections 148 and 302 read with Section 149 IPC. They were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- each for the offence punishable under Section 148 IPC and in default thereof to further undergo rigorous imprisonment for six months. They were further sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 149 IPC and in default thereof to further undergo rigorous imprisonment for two years. Both the substantive sentences were directed to run concurrently. 2. Accused Vinod Kumar and Krishan @ Kala had filed separate Criminal Appeal No.D-577-DB of 2002. The said appeal was disposed of as abated vide order dated 09.08.2011 passed by this court on account of murder of both the accused by the complainant when they were on parole. 3. The prosecution case is that as per statement (Ex.PD) made by Magha Ram son of Ramphal, they are five brothers. In addition to him, his brothers are Anand Sarup, Dilbagh Singh @ Bagha, Jagdish and youngest is Jai Parkash. He and his brother Anand Sarup are married. All the five brothers are living jointly and do the agricultural work. Their parents are also alive. On 01.03.2000 at about 6.00 p.m. in the evening, Vinod Kumar son of Mahavir had removed the pump from the tubewell engine installed in their fields and his brother Dilbagh Singh @ Bagha caught him red handed. His brother Dilbagh Singh @ Bagha had slapped Vinod Kumar. The matter was amicably resolved in the evening. He advised his brother Dilbagh Singh @ Bagha to be patient. On 02.03.2000 at about 11.00 a.m., his brother Dilbagh Singh @ Bagha went to the fields for walk. After half an hour, he (Magha Ram) and his younger brother Anand Sarup were going to the fields on their bullock cart for bringing fodder. He advised his brother Dilbagh Singh @ Bagha to be patient. On 02.03.2000 at about 11.00 a.m., his brother Dilbagh Singh @ Bagha went to the fields for walk. After half an hour, he (Magha Ram) and his younger brother Anand Sarup were going to the fields on their bullock cart for bringing fodder. They were at the distance of one acre from the village, from the side of tubewell of Haria son of Mai Dhan, resident of Mahra. They saw that five persons were beating a man in the wheat crop standing in the fields of Haria near tubewell. They ran towards them and saw that Ram Niwas, Ganga Sarup @ Ganga Ram, Satish Kumar were holding their brother Dilbagh Singh @ Bagha and Vinod Kumar and Krishan @ Kala were attacking his brother Dilbagh Singh @ Bagha with knives. His brother Dilbagh Singh @ Bagha raised alarm ‘Bachao Bachao’ . Then he (complainant) and his brother Anand Sarup ran towards him saying that they have come, on which accused fled away from the spot with their respective knives. On reaching the spot, they found that their brother Dilbagh Singh @ Bagha was lying in the pool of blood. Dilbagh Singh @ Bagha died at the spot. According to the complainant, the accused have killed his brother Dilbagh Singh @ Bagha on account of grudge of removing of pump from their tubewell engine and a quarrel with Vinod Kumar. Thereafter, after leaving his brother Anand Sarup at the spot, Magha Ram (complainant) came to his village. His father was not at the home. He made search for his father in the village and having not found him, he was going to Police Station, where he met SI Laxman Singh on the bridge of canal of village Chitana, where he made statement Ex.PD. SI Laxman Singh made endorsement Ex.PD/1 and sent the same to the Police Station, where formal FIR Ex.PD/2 was registered. 4. Police then visited the spot and prepared the rough site plan Exs.P6 to P9. Photographer was called at the spot, who clicked the photographer EX.PH/2. Blood stained earth was lifted from the spot vide recovery memo Ex.PG. The dead body was sent for postmortem. The postmortem report Ex.PH was received. During the course of investigation, accused were arrested. On 06.03.2000, accused Vinod Kumar and Krishan @ Kala were interrogated. Photographer was called at the spot, who clicked the photographer EX.PH/2. Blood stained earth was lifted from the spot vide recovery memo Ex.PG. The dead body was sent for postmortem. The postmortem report Ex.PH was received. During the course of investigation, accused were arrested. On 06.03.2000, accused Vinod Kumar and Krishan @ Kala were interrogated. They suffered disclosure statements Ex.PE and PF respectively and got recovered the knives used in the crime, which were taken into possession through recovery memo Ex.PE/2 and PF/1. The rough sketch of the knives were also prepared. 5. After the completion of the investigation, the challan was presented in the court. The accused were charge sheeted under Sections 148 and 302 read with Section 149 IPC. Accused Vinod Kumar and Krishan @ Kala were also charge sheeted under Section 25 of the Arms Act. 6. In support of its case, the prosecution examined Ram Bhagat Patwari as PW1, MHC Jagdish Chander as PW2, Inspector Ram Dhan as PW3, Constable Vinod Kumar as PW4, Complainant Magha Ram as PW5, Eye witness Anand Sarup as PW6, Photographer Hari Om as PW7, Dr. C.P. Arora as PW8, SI Laxman Singh as PW9 and DSP Ram Kishan as PW10. 7. When examined under Section 313 Cr.P.C., accused pleaded false implication. 8. In defence, the accused examined Ram Mahar as DW1 and Jai Kishan Chowkidar as DW2 and closed defence evidence. 9. After hearing learned Public Prosecutor for the State and learned counsel of the accused, learned Addl. Sessions Judge Sonepat convicted and sentenced all the accused aforesaid. 10. We have heard learned counsel for the accusedappellants as well as learned Deputy Advocate General for the State and have also minutely perused the record. 11. In this case Vinod Kumar and Krishan @ Kala died during the pendency of the appeal having been allegedly murdered by the complainant party while they were on parole. Criminal appeal No.D- 577-DB of 2002 filed by them stood abated vide order dated 09.08.2011 passed by this Court. 12. Now this Court is to determine the culpability of Ganga Sarup @ Ganga Ram, Ram Niwas and Satish Kumar. As per the prosecution case, all of them were empty handed. As per statement of Magha Ram made before the police, they were holding Dilbagh Singh @ Bagha at the time when Vinod Kumar and Krishan @ Kala were giving knife blows to him. As per the prosecution case, all of them were empty handed. As per statement of Magha Ram made before the police, they were holding Dilbagh Singh @ Bagha at the time when Vinod Kumar and Krishan @ Kala were giving knife blows to him. When statement of Magha Ram made in the Court is examined, while reiterating the prosecution case, he stated that when he along with his brother Anand Sarup saw Dilbagh Singh @ Bagha being assaulted, they ran towards him and saw that one of the accused was twisting the hand of unknown person. They saw that the said person being assaulted was their brother Dilbagh Singh. Ram Niwas accused had twisted his hands and Satish Kumar and Ganga Sarup @ Ganga Ram were holding his legs while Vinod Kumar and Krishan @ Kala armed with knives were inflicting injuries on his head and neck. When they reached the spot, accused ran away with their respective weapons. Dilbagh Singh @ Bagha fell down and died within 2-3 minutes. Thereafter, after leaving his brother Anand Sarup at the spot, he went to the village to give information to his father. His brother Jagdish met him and he also sent him to the spot. His father was not in the house. He tried to search his father at 3-4 places in the village but he was not available. He came to know that his father had gone towards Sitawali to purchase a buffalo. He went on scooter to Sitawali, where he came to know that his father had gone to village Kailan. Then he went there but his father was not available. Thereafter, he came back to the village and decided to report the matter to the police. He was going to the police at 6.30 p.m., when he met the police party near the bridge of village Chitana and narrated the incident. His statement Ex.PD was recorded. 13. The another eye witness Anand Sarup, who was left at the spot by Magha Ram (complainant) to guard the dead body of Dilbagh Singh @ Bagha while describing the occurrence stated that accused Ram Niwas had twisted the hands of his brother Dilbagh Singh @ Bagha and accused Ganga Sarup @ Ganga Ram and Satish were holding his legs. Accused Vinod Kumar and Krishan @ Kala were giving knife blows to him on his neck. 14. Dr. Accused Vinod Kumar and Krishan @ Kala were giving knife blows to him on his neck. 14. Dr. C.P. Arora, PW8, who had conducted the postmortem on the dead body of deceased Dilbagh Singh @ Bagha and recorded the following injuries on his person: “1.Two incised wounds of the size 3 x 0.5 and 2.5 x 0.5 cms on the left side of the scalp in the parietal region. 2. Multiple (seven) incised wounds measuring 1.5 x 0.5 cm to 1 x 0.5 cm on the left side of the neck. 3. 1 x 0.5 cm and 1 x .05 cm, two incised wounds on the left cevicular region. 4. Five incised wounds on the right side of the neck measuring between 3 x 1 cm to 1 x 0.5 cms. 5. Four incised wounds measuring 1 x 0.5 cm to 2 x 0.5 cm on the back of the neck. 6. Three incised wounds of the size 1 x 0.5 cm to 2 x 0.5 cms on the face including the nasal area. 7 .4 x 0.5 cms incised wounds on the ventral surface of the left palm. 8 .2 x 0.6 cms incised wound on the right side of the chest in the lower part. It is going deep into the thoracic cavity upto the lower lobe of the right lung. There is an incised wound of the size 1 x 0.5 cms on the right lobe of the lung. Haemothorax was present.” 15. All the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. The time elapsed between injuries and death was within minutes. The statement of doctor shows that there were as many as 25 incised wounds. Most of which were on the neck and the head while one of the incised wound was on the right side of the chest, which punctured the right lung. One incised wound was on the left palm. This indicates that deceased might have tried to catch hold of the knife resulting in injury on his left palm. It is to be noted that the occurrence took place on 11.00 a.m. However, the statement to the police was made by Magha Ram at about 6.30 p.m. In this way, there is delay of more than seven hours in lodging the FIR. It is to be noticed that deceased had four brothers. It is to be noted that the occurrence took place on 11.00 a.m. However, the statement to the police was made by Magha Ram at about 6.30 p.m. In this way, there is delay of more than seven hours in lodging the FIR. It is to be noticed that deceased had four brothers. Two of them were present at the spot and Jagdish had met Magha Ram when he was coming to the village and then there was another brother Jai Parkash. In the FIR (Ex.PD), Magha Ram had stated that he came to the village to inform his father but his father was not present in the house. However, while appearing before the court, he tried to improve his version to cover up the delay by saying that he had come to know that his father had gone to village Sitawali to purchase a buffalo. When he went to village Sitawali, there he came to know that his father has gone to village Kailan and then he went to village Kailan, where his father was not found and then he came back to the village. 16. We are of the view that even if Magha Ram was searching for his father, there was no reason for his remaining three brothers not to approach the police. In this way, there is a delay of more than seven hours in lodging the FIR. The net result is that the Court is put on its guards to scrutinize the prosecution evidence with care and caution. 17. As discussed above, accused Vinod Kumar and Krishan @ Kala, who were attributed to fatal injuries given to the deceased with knife have since died. Now, the question would arise as to whether the present accused-appellants had caught hold the deceased when accused Vinod Kumar and Krishan @ Kala were giving indiscriminate injuries with knives on the face, neck and chest of the deceased? At the time of receipt of injuries, Dilbagh Singh @ Bagha was stated to be in standing position. Now, the question would arise as to whether the present accused-appellants had caught hold the deceased when accused Vinod Kumar and Krishan @ Kala were giving indiscriminate injuries with knives on the face, neck and chest of the deceased? At the time of receipt of injuries, Dilbagh Singh @ Bagha was stated to be in standing position. Though in the initial statement Ex.PD before the police, Magha Ram stated that accused were holding the deceased but in his statement before the court, he improved his version by saying that accused Ram Niwas was twisting the right hand of his brother Dilbagh Singh @ Bagha and accused Satish Kumar and Ganga Sarup @ Ganga Ram were holding the legs of the deceased who was in standing position. 18. We are of the view that this version of the complainant is not acceptable. The deceased was given as many as 25 knife blows. The injuries are on the neck, face and chest and are likely to immobilize the victim and there was no need to hold his legs or arm of victim. The deceased was in standing position and it cannot be believed that accused Ganga Sarup @ Ganga Ram and Satish Kumar were holding his legs while victim is standing. It is to be noted that in this part of country touching the legs of a standing person is either to seek forgiveness or is considered as a mark of respect. The position would have been different, had the victim been lying on the ground. Therefore, the allegations that Satish Kumar and Ganga Sarup @ Ganga Ram were holding the legs while he was being given 25 knife blows, is not acceptable. If it were so, the blood of the deceased would have fallen on the clothes of Ganga Sarup @ Ganga Ram and Satish Kumar, who were allegedly holding his legs. Due to injuries on the neck, the blood gushes out and is also likely to fall on the clothes of Ram Niwas, if he was holding one or the other hand of the deceased. No blood was found on their clothes. 19. Hari Om, Photographer, PW7 stated in cross examination that he took the photographs under the light of sun. However, he cannot say whether it was noon or evening. No blood was found on their clothes. 19. Hari Om, Photographer, PW7 stated in cross examination that he took the photographs under the light of sun. However, he cannot say whether it was noon or evening. The photographs on file show that these were taken in the evening hours as there was long shadow of the person taking the photographs. Therefore, it appears that the police had arrived at the spot earlier than 6.30 p.m. 20. Therefore, the role attributed to the present appellants is highly doubtful and appears to be an improvement. On account of the delay in lodging the FIR, the possibility of their being falsely roped in after due deliberation cannot be ruled out. 21. In view of the foregoing discussion, we are of the view that the role attributed to the present appellants is highly doubtful. It being so, they are granted the benefit of doubt and acquitted of the charges framed against them. Their bail bonds and surety bonds are discharged. Criminal Appeal No.D-557-DB of 2002 is accordingly allowed. ---------0.B.S.0------------ —————————