JUDGMENT 1. - Nine persons namely; Hanuman S/o Jawana, Teju S/o Ramdayal, Nathu S/o Moola, Sharvan S/o Hari Ram, Sheoraj @ Shivraj S/o Gheesa, Kishanlal S/o Hari Ram, Nanda S/o Gheesa, Sawara S/o Hari Ram & Ramdayal S/o Moola, were nominated as accused in a case arising out of FIR No. 117/1999, registered at Police Station Arai, District Ajmer. In pursuance of aforesaid FIR, after concluding the investigation, the said nine persons were sent for trial for offence u/s 147, 148, 149, 341, 323, 325, 336 and 302 IPC. 2. Hanuman son of Jawana, co-accused died during the course of trial. 3. The trial court acquitted the appellants for offence u/s 325/149 IPC but held them guilty of offences punishable u/s 148, 341, 302/149 and 323/149 IPC vide impugned judgment dated 21/11/2003. This judgment was rendered by the Court of Additional Sessions Judge (Fast Track) No. 3, Ajmer, Camp Kishangarh. Vide a separate order of even date, the appellants were sentenced as under:- Under Section 302/149 IPC- To undergo life imprisonment and pay a fine of Rs. 5000/- and in default of payment of fine to further undergo three months rigorous imprisonment. Under Section 148 IPC-To undergo three years rigorous imprisonment Under Section 341 IPC -To undergo one month simple imprisonment Under Section 323/149 IPC-To undergo one year rigorous imprisonment (All the sentences were directed to run concurrently). 4. Two of the appellants namely; Sheoraj @ Shivraj s/o Gheesa and Ramdayal s/o Moola, during pendency of the appeal, died and a coordinate Bench on 26/03/2010 ordered that the appeal filed by them stands abated and had taken the amended cause title on the record. 5. Out of the nine persons, sent for the trial, six accused namely; Hanuman s/o Jawana, Sheoraj @ Shivraj s/o Gheesa, Kishan Lal s/o Hari Ram, Sharvan s/o Hari Ram, Teju s/o Jawana and Nathu s/o Moola had sustained injuries in the occurrence. Some of the accused had received injuries on the head and injuries suffered by one accused Kishan Lal s/o Hari Ram on head was declared dangerous to life. 6. Thus, in view of above, Shri Biri Singh Sinsinwar, Sr. Some of the accused had received injuries on the head and injuries suffered by one accused Kishan Lal s/o Hari Ram on head was declared dangerous to life. 6. Thus, in view of above, Shri Biri Singh Sinsinwar, Sr. Advocate, assisted by Shri Rajesh Choudhary, counsel for the appellants has raised following two questions for consideration of this Court : (I) Whether it is safe to uphold conviction of Nanda, Sanwara and Ram Dayal, who were not injured and not stamped during the occurrence and were not named as accused in `Parcha Bayan' ? (II)(a) Whether this Court can hold the witnesses to be the truthful witnesses, who have not explained the injuries on person of the accused which were of same duration as the injured accused were also examined at the same time when injured witnesses were examined ? (II)(b) Whether the witnesses have suppressed origin and genesis of the occurrence as a result of consultations and deliberations for converting one occurrence into two parts ? 7. Before we consider and give our thoughtful consideration to the above questions raised, it will be necessary for us to advert to the facts of the case. 8. Prahlad, belonging to complainant party, had suffered seven injuries and due to the injury caused on head by a blunt weapon, had died in the occurrence. Besides Prahlad, Vishram s/o Onad (PW-1), Shaitan s/o Ridhkaran (PW-5), Onad s/o Ganesh (PW-6), Umrao s/o Onad (PW-8), Prabhu s/o Ridhkaran (PW-9) and Ridhkaran s/o Ram Karan (PW-10) had also suffered injuries. On the side of the accused, as stated earlier, six accused had suffered injuries. 9. Criminal proceedings were set into motion on submission of written report (Exhibit-P.1) by Vishram s/o Onad (PW-1). The said written report (Exhibit-P.1) was presented before Pusha Ram, SHO, Police Station, Arai (PW-25). Vishram s/o Onad (PW-1) in written report (Exhibit-P.1) stated that he is an agriculturist. On 16th August, 1999 at about 10 am, his brother Prahhad Jat had gone for grazing goat. Nearby, there was field of Nathu (accused-appellant). Some of the goat from the herd, had strayed into the filed of Nathu. At that time, accused, present on the spot namely; Hanuman s/o Jawana, Teju s/o Ramdayal, Nathu s/o Moola, Sheoraj @ Shivraj s/o Gheesa, Kishan Lal s/o Hari Ram, Sharvan s/o Hari Ram, by caste Jatan, resident of Sandoliya were present along with four or five other persons. At that time, accused, present on the spot namely; Hanuman s/o Jawana, Teju s/o Ramdayal, Nathu s/o Moola, Sheoraj @ Shivraj s/o Gheesa, Kishan Lal s/o Hari Ram, Sharvan s/o Hari Ram, by caste Jatan, resident of Sandoliya were present along with four or five other persons. They gave beating to Prahlad with `Lathies' and `Kulhadies' in order to liquidate him. He got information about occurrence from his father and then he along with his father (Onad), Shaitan s/o Ridhkaran, Umrao s/o Onad, Prabhu s/o Ridhkaran and Ridhkaran s/o Ram Karan went to the fields. Upon seeing them, accused told that they have already killed one and they will not leave others and they will kill them and saying so, they started beating them with `Lathies' and `Kulhadies'. Then, they pelted stones upon them with `Gophan' (a kind of weapon for throwing stones at a distance) . At that time, Ratna s/o Raghunath Jat, resident of Kathusara was also attracted to the spot. Considering all of them dead, the accused ran away from spot. Then, Ratna arranged a Tractor Trolley and brought them to hospital. Dead body of Prahlad was also brought at hospital. Vishram s/o Onad (PW-1) also stated that he suffered injury on the head, left shoulder, left hand and fingers of left hand. 10. Having reproduced the statement in nutshell, we have to notice that (PW-1) Vishram s/o Onad, (PW-6) Onad s/o Ganesh, (PW-5) Shaitan s/o Ridhkaran, (PW-8) Umrao s/o Onad, (PW-9) Prabhu s/o Ridhkaran, (PW-10) Ridhkaran s/o Ram Karan are not the eye witnesses of causing murder of Prahlad. 11. The complainant party had divided the occurrence into two parts, one qua the injuries caused to Prahlad which led to his death and second part being that when they had gone to take the dead body, they had received injuries at the hand of the accused. 12. It is time for us to first notice injuries on person of Prahlad. Prahlad had died at the spot. His postmortem was conducted by Dr. Fajlu Rehman (PW-23). He had noted seven injuries on the person of the deceased. Injury No. 1 was a blunt injury having 4'x2' dimension on right foot. Injury No. 2 was a lacerated injury having dimension of 1'x1' on the middle of left foot. There was fracture of two fingers of foot. His postmortem was conducted by Dr. Fajlu Rehman (PW-23). He had noted seven injuries on the person of the deceased. Injury No. 1 was a blunt injury having 4'x2' dimension on right foot. Injury No. 2 was a lacerated injury having dimension of 1'x1' on the middle of left foot. There was fracture of two fingers of foot. Injury No. 3 was lacerated wound having dimension of 2'x1', bone deep on the forehead on the occipital region. Injury No. 4 was on the left hand. Injury No. 5 was multiple mark of `Lathi' on the back. Injury No. 6 was contusion of 2'x1' on the left thigh. Injury No. 7 was swelling on the right forearm. It was a fracture. Doctor further stated that injury No. 3 was a fracture of bone on forehead and there was laceration of the brain and as per medical board, the cause of death was shock due to head injury. All injuries were ante-mortem but within duration of six to eighteen hours of the death. In cross examination, this witness stated due to injuries suffered collectively, death can be caused. 13. We shall now take notice of the injuries suffered by the injured witnesses and the accused. 14. Dr. Fajlu Rehman (PW-23) in cross-examination admitted that pertaining to cross-case, bearing No. ST-37/99 (State v. Vishram & ors), he had examined accused Hanuman, Sheoraj, Kishan Lal, Sharvan, Teju and Nathu. He proved medical legal reports of all the accused as D-10 to D-15. 15. Dr. Rajesh Kumawat (PW-20) stated on 16th August, 1999 at 3.40 pm, he had examined Prabhu (PW-9). He suffered one simple blunt injury on the head. On the same day, at about 2.30 pm, he had examined Onad who had suffered 12 injuries. All injuries were blunt and were declared simple. On the same day, at about 2.50 pm, this witness also examined Shaitan. He had suffered 5 simple blunt injuries. This witness also examined Ridhkaran. He had suffered 2 simple blunt injuries. This witness also examined Umrao, who had suffered six injuries caused by blunt weapon and all injuries were declared simple. This witness also examined Vishram. There were 4 injuries on his person. Opinion regarding injury No. 1 & 3 was kept pending to await the opinion of Radiologist. Since report of Radiologist had not been received, the trial court assumed the injuries to be simple in nature. 16. This witness also examined Vishram. There were 4 injuries on his person. Opinion regarding injury No. 1 & 3 was kept pending to await the opinion of Radiologist. Since report of Radiologist had not been received, the trial court assumed the injuries to be simple in nature. 16. We will not take notice of the injuries suffered by the accused. 17. On 16th August, 1999, on request made by the police, Hanuman was examined at 8.10. pm. He had suffered one lacerated injury on the parietal region and injury No. 2 was on the leg. All injuries were declared simple in nature. On the same day, Shivraj was examined at about 8.20 pm. There were 6 injuries on his person. All were simple. Injury No. 1 & 2 were bone deep present on the head. On the same day, at about 9.00 pm, Kishan Lal was examined. There were four injuries on his person. Injury No. 1 was a fracture of Parietal bone and was declared as dangerous to life. Sharvan was also examined at about 8.00 pm. There were 4 injuries on his person. Injury No. 1 was on the mid scalp of the parietal region bone deep. Teju had suffered 4 injuries. Injury No. 1 was on the parietal region bone deep. This witness also suffered fracture of ring finger and the said injury was declared as grievous. Nathu, in whose field the occurrence had taken place, had suffered 5 injuries. Injury No. 1 was on the scalp occipital region and was declared simple. However, this accused had suffered fracture of lower end of radius and fracture of fibula. Thus, on the person of six accused, not only bone deep injuries were found on head, which is a vital potion of the body but injuries were found to be grievous also. One of the injury on person of Kishan Lal was declared as dangerous to life. 18. We thus observe here that ordinarily injury on head cannot be self suffered as mass of skin on the head is negligible and nobody can control the velocity of the blow so far as head is concerned. Even otherwise, nobody shall suffer injury on the head. 19. 18. We thus observe here that ordinarily injury on head cannot be self suffered as mass of skin on the head is negligible and nobody can control the velocity of the blow so far as head is concerned. Even otherwise, nobody shall suffer injury on the head. 19. Shri Hari Bareth, counsel appearing for the complainant, having persuaded us to believe the prosecution witnesses, however, could not dislodge the sufferance of injuries on the person of accused which were suffered at the same time when witnesses had suffered injuries. Thus, accused, deceased and injured have suffered injuries at the same time, and they were examined by the medical expert around same time. Once we hold that accused had suffered injuries during the same time when prosecution witnesses were injured, we have to examine whether, as suggested by the complainant party, the occurrence had taken place into two parts i.e. first when injuries were caused to deceased Prahlad and second part being when other injured witnesses came to rescue the dead body of Prahlad. 20. The case of the complainant, as is unfolded before us, if accepted at the face value, no injured witness has witnessed causing of injuries to the deceased Prahlad. Vishram states that he was informed by his father Onad that accused have caused injuries to Prahad when a goat had strayed into the field of accused Nathu. As per prosecution, the occurrence had taken place in the field of Nathu accused. Vishram appeared in the court and stated that the occurrence regarding causing of injuries to Prahad was narrated to him by Ratan. Ratan, while appearing in the Court as PW-7, has not deposed having witnessed the causing of injuries to Prahad rather he has stated that he learnt later that Prahald was also caused injuries by the accused in the field of accused Nathu. Vishram, in categoric terms, has stated that cross case, at the instance of the accused for causing injuries by them, is wrong as they have not caused any injury to the accused in the occurrance. He also denied that complaint party had entered into the field of the accused and had caused them injuries. Vishram had not only denied causing of injuries to accused but has also not stated anywhere that the accused had also suffered injuries in the occurrence. All injured witnesses have not explained injuries on person of the accused. He also denied that complaint party had entered into the field of the accused and had caused them injuries. Vishram had not only denied causing of injuries to accused but has also not stated anywhere that the accused had also suffered injuries in the occurrence. All injured witnesses have not explained injuries on person of the accused. 21. Shri Hari Bareth, counsel for the complainant, has relied upon the statements made by Nathu (PW-2) & Sheoraj (PW-12), who, according to the counsel, are independent witnesses. As per Nathu, he had taken field of one 'Brahman' on lease. When he was harvesting the fodder, Prahad and Sheoraj (PW-12) had gone for grazing of the cattle. Accused Sheoraj had got hold of wrist of Prahlad, then eight persons encircled him and caused him injuries. Thereafter, the family members of Prahlad came to take dead body and then all the accused pelted stones on them by using 'Gophan'. People had also gathered there. Accused had also pelted stones on the persons gathered at spot. Those persons, who had come forward to take dead body, received injuries at the hands of accused. Even this witness has not stated any fact regarding receipt of the injuries by the accused. This witness is blissfully silent regarding receipt of injuries by the accused. This witness was also extensively confronted with the statement (Exhibit-D-2) recorded by the investigating agency u/s 161 Cr.P.C. 22. Sheoraj (PW-12), another independent witness cited, stated that on the day of occurrence Prahlad was along with him. Sheoraj @ Shivraj accused caught hold of his wrist and on calling of Sheoraj @ Shivraj all the accused came armed with wood and axes and started beating Prahlad. They had killed Prahlad. Later, Vishram learnt about the same and came along with the witnesses to take dead body of Prahlad. 23. Lala s/o Ram Nath (PW-11) is another eye witness who had not suffered any injury in the occurrence. He has also not explained injuries on the person of the accused. 24. Having taken note of the above facts, we are of the considered opinion that six of the accused namely; Hanuman, Teju, Nathu, Sharvan, Sheoraj and Kishanlal had suffered injuries in the occurrence and no explanation on the part of the prosecution is forthcoming. 25. The first question raised by Shri Biri Singh Sinsinwar, counsel for the appellants, also merits attention. Having taken note of the above facts, we are of the considered opinion that six of the accused namely; Hanuman, Teju, Nathu, Sharvan, Sheoraj and Kishanlal had suffered injuries in the occurrence and no explanation on the part of the prosecution is forthcoming. 25. The first question raised by Shri Biri Singh Sinsinwar, counsel for the appellants, also merits attention. Three of the accused namely; Nanda, Sanwara and Ramdayal had no injury on their person. Their presence at the spot is not stamped. If six of the co-accused have suffered injuries in the occurrence, as to why three appellants Nanda, Sanwara and Ramdayal had not suffered even a scratch on their person, is a question which go abegging. To answer this question, when we look into the written report (Exhibit-P.1), which is first information, we find that same is bereft of name of these three accused namely; Nanda, Sanwara and Ramdayal. Thus we are of the view that later prosecution had widened the net to introduce and involve these three accused namely Nanda, Sanwara and Ramdayal, and hence as matter of abundant caution we shall extend benefit of doubt to them. 26. Much has been said by counsel for the complainant that we should place explicit reliance upon the testimony of Nathu (PW-2) and Sheoraj (PW-12). We would have done the same but cannot fathom as to where these witnesses were for a good period of 41 days. Occurrence in present case has taken place on 16th of August 1999. The statement of Nathu (PW-2) and Sheoraj (PW-12) u/s 161 Cr.P.C. was recorded on 27/09/1999. These witnesses were not available to the investigating agency for more than 40 days. The statements of Nathu (DW-2) & Sheoraj (DW-9) u/s 161 Cr.P.C, which is at Page 240 & 262 respectively of the paper book, were recorded by the investigating agency on 27/09/1999. Such a long delay on the part of the investigating agency to record statement of these two witnesses leads us to the conclusion that they, at a very belated stage, were introduced as witnesses. It is to be noted that there is no injury on the person of these two witnesses whereas the other witnesses have received injuries in the occurrence. These witnesses had made no good effort to save Prahlad. However, these very witnesses had also not informed the family members of Prahlad to rescue Prahlad. It is to be noted that there is no injury on the person of these two witnesses whereas the other witnesses have received injuries in the occurrence. These witnesses had made no good effort to save Prahlad. However, these very witnesses had also not informed the family members of Prahlad to rescue Prahlad. These witnesses further had not gone to the Police Station. They had also not accompanied the injured to the hospital. They have only emerged as witnesses in the investigation at a very later stage as no injured witness u/s 161 Cr.P.C. has stated that they were informed about the occurrence by these two witnesses. Thus, taking note of the delay in introducing these witnesses on the record along with their improbable conduct, we are of the view that testimony of these witnesses is to be ruled out of consideration. 27. Thus, we can safely state that the witnesses, cited by the prosecution, have suppressed the origin and genesis of the occurrence. Admittedly, the occurrence ensued when goat of deceased Prahlad had gone into the fields of Nathu. At that time, the accused were working in their field. If they are working in their field, having agricultural implements, they in no way constituted unlawful assembly. It was natural for them to be in their fields. It is to be assumed that when the goat strayed into the filed of the accused, some hot words may have been exchanged and the accused have given sound thrashing to Prahlad. We find merit in the contention of counsel for the complainant that we cannot assume and create a third story. Therefore, we have to confine ourselves to the story unfolded by the prosecution. Since the prosecution witnesses in the Court have taken a categoric stand that they have not caused injuries to the accused and accused had not suffered injury in the occurrence, we are of the view that considering the nature and number of injuries suffered by the accused, we cannot hold that the witnesses, cited by the prosecution, are truthful witnesses. Since the prosecution witnesses in the Court have taken a categoric stand that they have not caused injuries to the accused and accused had not suffered injury in the occurrence, we are of the view that considering the nature and number of injuries suffered by the accused, we cannot hold that the witnesses, cited by the prosecution, are truthful witnesses. Since the accused have not set up story of self defence, we will not extend the benefit of the same to the accused but at the same time, we are of the view that the prosecution witnesses have not come out with clean hands before the Court and thus, it is not safe to rely upon them and it will be better to disbelieve them as contention of the counsel cannot be doubted that it was one occurrence and who caused injury first, the origin and genesis has been withheld from the Court, since witnesses are not truthful, it is difficult for us to determine culpability on the part of the accused. 28. Thus, we shall extend benefit of doubt to the accused. We are also not happy with the finding returned by the trial court to hold the accused guilty, relying upon the evidence of the cross-case. It is to be observed that the evidence recorded in the cross case cannot be read and examined in this case. Because trial Judge had rejected defense version in the cross case, in the present case, accused are not to be assumed guilty. It's evidence of this case only which is to be taken into consideration and appreciated. The prosecution has to stand on its own legs. Therefore, it was incumbent for witnesses to explain the injuries on the person of the accused. 29. As a result of the above discussion, we accept the present appeal and set aside the conviction and sentence awarded upon the appellants and acquit them of the charges by extending benefit of doubt. Appellants be released forthwith, if not required in any other criminal case. 30. Accused-appellants Nathu s/o Moola, Kishanlal s/o Hariram, Nanda s/o Gheesa and Sanwara s/o Hariram be released, if not required in any other criminal case and accused-appellants Teju s/o Ram Dayal and Sharwan s/o Hariram, whose sentence has already been suspended by order of this Court, need not to surrender before the jail authorities and their bail bonds be accordingly discharged. 31. 31. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, each of the accused-appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court. *******