JUDGMENT 1. Instant criminal appeal has been preferred on behalf of three accused-appellants, namely (i) Santosh Singh s/o. Bihari Singh, (ii) Shivram Singh s/o. Nihal Singh and (iii) Om Prakash Singh s/o. Hukam Singh respectively under Section 374 (2) of the Code of Criminal Procedure, 1973. 2. Appellants, named herein above, have assailed the judgment dated 12.08.2004 rendered by the Court of Additional Sessions Judge [Fast Track], Laxmangarh District Alwar, whereby learned Judge convicted them for offences punishable under Sections 302/34, 307/34, 325/34, 324/34 and 323/34 of Indian Penal Code. 3. Having convicted the appellants for the above said offences, vide a separate order of even date, the appellants were sentenced as under:- 4. For commission of offence under Section 302/34 I.P.C., they were sentenced to undergo life imprisonment with pay a fine of Rs. 2000/-, in default of payment of fine to further undergo six months rigorous imprisonment. 5. For commission of offence under Section 307/34 I.P.C.., they were sentenced to undergo seven years rigorous imprisonment with pay a fine of Rs. 1000/-, in default of payment of fine to further undergo three months rigorous imprisonment. 6. For commission of offence under Section 325/34 I.P.C. they were sentenced to undergo three years rigorous imprisonment with pay a fine of Rs. 500/-, in default of payment of fine to further undergo two months rigorous imprisonment. 7. For commission of offence under Section 324/34 I.P.C. they were sentenced to undergo six months simple imprisonment with pay a fine of Rs. 200/-, in default of payment of fine to further undergo one month simple imprisonment. 8. For commission of offence under Section 323/34 I.P.C., they were sentenced to undergo three months simple imprisonment with pay a fine of Rs. 100/-, in default of payment of fine to further undergo fifteen days simple imprisonment. 9. All the sentences were ordered to run concurrently. 10. Criminal proceeding, in the present case, was set into motion on the statement made by Smt. Kamod [PW-12]. She presented a written complaint [Exhibit P/21] before Shri Ajay, Station House Officer, Police Station, Kherli [Alwar]. 11. In the present case, occurrence had taken place on the intervening night of 6th & 7th of August, 2003 at about 02:00 P.M. in the field falling within the revenue estate of Village Ukasi. She presented a written complaint [Exhibit P/21] before Shri Ajay, Station House Officer, Police Station, Kherli [Alwar]. 11. In the present case, occurrence had taken place on the intervening night of 6th & 7th of August, 2003 at about 02:00 P.M. in the field falling within the revenue estate of Village Ukasi. At the close proximity of time i.e. on 7th of August, 2003 at 03:40 A.M. Smt. Kamod [PW-12] along with her brother - Mangtu Singh, injured PW-14 and deceased Jhabu Singh were examined by Dr. Jitendra Bundel [PW-5]. 12. In the written complaint [Exhibit P/21], Kamod [PW-12] stated that she is an elder sister of Mangtu Singh and Jhabu Singh and was married at Village Kheda Mangalsingh. On 06.08.2003 at about 02:00 P.M. in the forenoon, she had come from her matrimonial home to meet her brothers. Her brothers Jhabu Singh and Mangtu Singh met her in the way. Three of them two brothers & sister were going towards field near a pond [talab]. She was going ahead, whereas brothers were coming behind her. When she reached in the field, Dabbu s/o. Malkhan, Santosh s/o. Bihari and Omsingh s/o. Hukam Singh were grazing cattle. On seeing her, they started giving her abuses, as to why she had come to inspect the fields. When she protested, she was given beating. At that time, her two brothers came to save her. All three persons, namely Dabbu s/o. Malkhan, Santosh s/o. Bihari and Omsingh s/o. Hukam Singh started giving them injuries. Omsingh was armed with a tanchya [axe], Dabbu was armed with a spear (barchi) and Santosh was armed with a knife. At that time, Bishan s/o. Nihal Singh and second son of Nihal Singh and Devendra s/o. Murari Singh also came armed with lathies. They all with their weapons belaboured two brothers. Santosh Singh gave injuries to Kamod [PW-12] with fist blow, whereas Omsingh gave a tanchaya [axe] blow on the feet and Bishan caused injury with the lathi. At that time 15-20 other persons [cattle grazers] were also attracted at the spot. Nobody intervened and got them separated. Considering both the persons as dead, accused left the spot. She while walking came to the house of Ram Singh Meena in the fields who made a telephonic call to the Police. At that time 15-20 other persons [cattle grazers] were also attracted at the spot. Nobody intervened and got them separated. Considering both the persons as dead, accused left the spot. She while walking came to the house of Ram Singh Meena in the fields who made a telephonic call to the Police. Police brought Jhabu Singh from the spot to Kherli hospital and later along with her, they also brought her another brother Mangtu Singh lying in the fields to Kherli Hospital. It was stated in the impugned First Information Report that both the brothers were living near the pond [talai] in the field and the Jhabu Singh due to injuries died in the hospital. 13. Before we proceed to notice prosecution evidence, it will be necessary to take note of a very material fact that vide Exhibit/P-22 in the Daily Diary Report, bearing No. 223 [Exhibit/P-22] an information at about 06:20 P.M. was recorded at Police Station, Kherli. 14. The Daily Diary Report bearing No. 223 [Exhibit P/22], when translated into English reads as under:- "A telephonic call has been received that in Village Ukasi near pond [talai] a fight had ensued in which one or two person have died. Name of telephone caller was asked. He disclosed his name as Kalu and thereafter had disconnected the phone." 15. Upon this information, the Police had reached at the place of occurrence. Jhabu Singh deceased was brought to Hospital Kherli, later Mangtu Singh, injured [PW-14] and Kamod [PW-12] had reached at referral Hospital, Kherli on the intervening night of 6th & 7th of August, 2003 at about 03:40 A.M. Mangtu Singh [PW-14] had sustained nineteen injuries. Injury Nos. 1, 2, 3 and 14 were on the head. They were on the parietal occipital region. Beside it, there was an injury on the iliac crest. Out of nineteen injuries, Injury Nos. 6, 7 and 11 were declared grievous in nature. At the time of examination, pupils of injured were well oriented his blood pressure was 140/90 and pulse was 80 and breathing was normal. The witness was well oriented to time and space. Kamod [PW-12] had sustained four injuries, all were contusion. There were injuries on her person on arm, back and on the left leg. 16. At the time of examination, pupils of injured were well oriented his blood pressure was 140/90 and pulse was 80 and breathing was normal. The witness was well oriented to time and space. Kamod [PW-12] had sustained four injuries, all were contusion. There were injuries on her person on arm, back and on the left leg. 16. Jhabu Singh was brought to the hospital by the Police on the intervening night of 6th & 7th of August, 2003 at about 09:30 P.M. and he died in the hospital. There were fourteen injuries on his person. Injury Nos.1, 2 and 3 were on the head. On opening of scalp, hematoma 4.6x3 was found and another hematoma 3x2 cm. was found on the right side near parietal occipital region. As per medical opinion, the period between death and postmortem was 12 to 13 hours, the cause of death was ante-mortem and injuries was caused on the head. 17. Dr. Ravi Mathur [PW-18] had declared three injuries i.e. Injury Nos.6, 7 and 11 on the person of Mangtu Singh to be grievous in nature. 18. Before we advert to the arguments raised by Mr. Deepak Sharma, the learned counsel appearing for the appellants and deal with the same, it will be necessary for us to give gist of evidence. 19. PW-1 Netram, PW-2 Ramesh, PW-3 Kajod, PW-4 Lalsingh, PW-6 Mohan and PW-7 Laxman were cited by the prosecution as eye-witnesses, they have stated that they knew Mangtu Singh, Jhabu Singh & accused as they were having grudged between them. They stated that they had not seen the occurrence. They were declared hostile by the prosecution for having not supported its case. 20. PW-9 Balram, PW-10 Shaitan Singh and PW-11 Girdhari had attested inquest and had identified the body of Jhabu Singh. PW-11 Girdhari had also attested site-plan and the memo regarding receipt of clothes from the doctor by the Police. 21. As stated by us earlier that PW-12 Kamod and PW-14 Mangtu are injured eye-witnesses. 22. PW-13 Constable - Harpal Singh had deposed that he had deposited the clothes of the deceased in the "Malkhana ". PW-15 Sub- Inspector - Ajay proved various facets of investigation. 21. As stated by us earlier that PW-12 Kamod and PW-14 Mangtu are injured eye-witnesses. 22. PW-13 Constable - Harpal Singh had deposed that he had deposited the clothes of the deceased in the "Malkhana ". PW-15 Sub- Inspector - Ajay proved various facets of investigation. He stated that on 06.08.2003 when he was posted as Station House Officer, Kherli at 06:20 P.M., he received a telephonic information that in the forest of Village Ukasi a fight had ensued between Rajputs and one or two person had died. He along with Police staff reached at the spot, after noticing the contents of information in the Daily Diary Report bearing No. 223 [Exhibit/22] at about 09:20 P.M., he along with staff brought Jhabu Singh to the Government Hospital, Kherli where he was declared dead during treatment. At 10:30 A.M. he received an information from Ram Singh that as per Kamod, sister of deceased Jhabu Singh her another brother - Mangtu Singh was also lying injured. Mangtu Singh was found seriously injured. Police along with his sister Kamod brought Mangtu Singh to the Government Hospital, Kherli where Kamod [PW-12] submitted a written complaint [Exhibit P/21]. 23. We need not take into notice the details of recovery of weapon and other part of investigation. 24. PW-16 A.S.I. Shiv Lal stated that on 07.08.2003 he was present at the Police Station when Harpal brought written complaint [Exhibit P/21] and on the basis of which he had registered a formal First Information Report [Exhibit P/26]. 25. PW-17 Ramniwas who was posted as In-charge of `Malkhana' Police Station, Kherli deposed regarding deposit of clothes of the deceased by the Constable. 26. As stated earlier, Dr. Ravi Mathur had conducted radiological examination of injured Mangtu Singh. 27. Thereafter, prosecution closed its evidence and the statement of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973 and all incriminating evidence were put to them, they denied the same and pleaded innocent. 28. No witness was examined by the accused in defence. 29. Shri Deepak Sharma, the learned counsel appearing for the accused-appellants, has assailed the prosecution version by contending that Smt. Kamod [PW-12] was not present at the spot and the injury on her person are simple and superficial and, thus, she cannot be termed as stamped witness. 30. 28. No witness was examined by the accused in defence. 29. Shri Deepak Sharma, the learned counsel appearing for the accused-appellants, has assailed the prosecution version by contending that Smt. Kamod [PW-12] was not present at the spot and the injury on her person are simple and superficial and, thus, she cannot be termed as stamped witness. 30. Counsel appearing for the accused-appellants has submitted that after information was relayed and noted in the Police Station at about 06:20 P.M. at the instance of caller - Kalu, the Police had gone to the spot and thereafter had called Kamod from her Village which is nearby. 31. Counsel appearing for the accused-appellants further urged before us that Mangtu Singh was found at a different place from the place from where Jhabu Singh was lifted by the Police, therefore, occurrence had taken into in two parts and the prosecution has miserably failed to fix the spot of the occurrence. 32. Counsel appearing for the accused-appellants contended that it was incumbent for the prosecution to come with the clean hand and prove the place of occurrence. 33. Counsel appearing for the accused-appellants has vehemently contended that in the present case, pattern, story and version has been laid by non eye-witness and Mangtu Singh, injured was under compulsion to follow the same. 34. We have given our thoughtful consideration to the rival submissions advanced by Mr. Deepak Sharma, the learned counsel appearing for the accused-appellants and perused the record and the relevant material placed before us. 35. We are unable to agree with the arguments raised before us. We cannot ignore that Mangtu Singh at the same time had received nineteen injuries, out of which three injuries were grievious in nature. He had also suffered multiple injuries on the vital portion of body i.e. the head. Thus, injuries on the person of Mangtu Singh cannot be self-suffered. Mangtu Singh will be the last person to screen real offenders. 36. It is true that the witnesses in their zeal can inflate the number of accused, but the one who had suffered so many injuries will be the last person to substitute the real assailants. Thus, we are of the view that implicit reliance be placed upon testimony of Mangtu Singh [PW-14]. 37. 36. It is true that the witnesses in their zeal can inflate the number of accused, but the one who had suffered so many injuries will be the last person to substitute the real assailants. Thus, we are of the view that implicit reliance be placed upon testimony of Mangtu Singh [PW-14]. 37. Mangtu Singh [PW-14] has categorically stated in the Court that the present three appellants, namely Santosh Singh, Shivram Singh and Om Prakash Singh had caused him injuries. This witness further stated that later-on Bishan Singh, Dabbu Singh and Devendra who were not sent for the trial arrived at the spot and they were armed with lathi. 38. Having believed that Mangtu Singh, injured witness had suffered injuries in the occurrence, we find no reasons to disturb the well reasoned finding given by the trial Court to convict the appellants No. 1 and 3, namely Santosh Singh and Om Prakash Singh. 39. However, taking totality of evidence, we are of the view that the benefit of doubt can be extended to the appellant No. 2, namely Shivram Singh. 40. In impugned First Information Report, Exhibit/P/26, Shivram has not been named by first informant - Kamod [PW-12]. She has stated that in the occurrence, injuries were caused by Santosh Singh, Om Prakash Singh and Dabbu Singh s/o. Malkhan. She had stated that Dabbu Singh s/o. Malkhan Singh was armed with spear [barchhi]. Shivram Singh is also stated to be unnamed other son of Nihal Singh. Nihal Singh has how many sons, nothing has been brought on the record. Bishan Singh, an another son of Nihal Singh was named in the First Information Report was not sent for the trial. As to whether unnamed other son of Nihal Singh is Shivram, who had participated in the occurrence or not, there is no evidence. Mangtu Singh, in the Court stated that Santosh Singh, Shivram Singh and Om Prakash Singh had caused injuries. He stated that later-on Bishan Singh, Dabbu Singh and Devendra came at the spot, this fact is in contradiction to the averment made in the F.I.R. As to how and why Dabbu Singh was substituted as Shivram Singh no satisfactory explanation is forthcoming. 41. He stated that later-on Bishan Singh, Dabbu Singh and Devendra came at the spot, this fact is in contradiction to the averment made in the F.I.R. As to how and why Dabbu Singh was substituted as Shivram Singh no satisfactory explanation is forthcoming. 41. As stated earlier, in First Information Report, the injury has been assigned to Dabbu Singh, whereas in the Court there is substitution of the same with Shivram Singh, especially who has not been named specifically in First Information Report. The First Information Report reached to the Area Magistrate on 08.08.2003 at 11:00 A.M. after a delay of more than thirty hours, therefore, we shall be extremely cautious, shall extend the benefit of doubt to Shivram Singh. 42. As a result of aforesaid discussions, the present appeal is dismissed, qua appellants Nos.1 and 3, namely Santosh Singh and Om Prakash Singh; and the same is, hereby, accepted, qua appellant No. 2, namely Shivram Singh. Judgment of conviction and sentence, qua appellant No. 2, Shivram Singh is held to be unsustainable by extending benefit of doubt to him and he is acquitted of the charges. 43. Resultantly, the present appeal is partly allowed, qua Shivram Singh and is dismissed, qua Santosh Singh s/o. Bihari Singh and Om Prakash Singh s/o. Hukam Singh. *******