JUDGMENT 1. - Both the above Criminal Appeals filed under Section 374 Cr.P.C. are arising out from the Judgment dated 25.5.2007 passed by the learned District and Sessions Judge, Hanumangarh in Sessions Case No. 162/2004 whereby the learned Trial Court convicted all the five accused appellants for the offence under Sections 148, 302/149 I.P.C. and passed the following sentence against which, which reads as under: Under Section 302/149 I.P.C.-Life Imprisonment. Under Section 148 I.P.C.-2 years R.l. 2. Brief facts of the case are that on 28.8.2004 at about 11.50 P.M. one Vikram Singh (PW-1) submitted a written report Ex. P-l before the S.H.O., Police Station, Tibbi, District-Hanumangarh in which it was alleged that today at about 8.30 P.M. his eld'r brother Mahaveer Singh left the house by saying that he is going to the house of Dilip Dhanak, but did not return till 10.00 P.M., therefore to search Kim the complainant went to the house of Dilip Dhanak but in between way when he reached in the street of Bawari's near Water Works at about 11.00 P.M. hear the cry of his brother Mahaveer Singh, therefore, he immediately, rushed to the spot and saw that accused appellant Avtar Singh and his sons were beating his brother Mahaveer Singh and he was lying on earth. As per the allegation in the F.I.R., Avtar Singh was having Gandasi and his son Jaggi was having sword and other sons Mangi, Mohar Singh and Jeevan were having lathis in their hands and they were severely beating him. The complainant alleged in the F.I.R. that when he made hue and cry then all the 5 appellants ran away from the spot and due to the injuries caused by all the 5 persons his brother died. 3. The S.H.O., Police Station Tibbi, District-Hanumangarh registered the F.I.R. No. 238/2004 (Ex. P-1) under Sections 147,148,149 and 302 I.P.C. and rushed to the place of occurrence and commenced investigation. During investigation site plan (Ex. P-2 and Ex. P-2A) was prepared and after completing all the formalities on the spot took the body of the deceased to the hospital and in the morning on 29.8.2004 in between 9.30 to 10.30 A.M. post mortem was conducted by the Medical Officer at Primary Health Center, Tibbi (Hanumangarh). During investigation site plan (Ex. P-2 and Ex. P-2A) was prepared and after completing all the formalities on the spot took the body of the deceased to the hospital and in the morning on 29.8.2004 in between 9.30 to 10.30 A.M. post mortem was conducted by the Medical Officer at Primary Health Center, Tibbi (Hanumangarh). The accused appellants were arrested and after their arrest the blood stained sword was recovered as per the information given under Section 27 of the Evidence Act by the accused Jagseer Singh @ Jaggi on 30.8.2004 at about 4.45 P.M. thereafter, blood stained shirt of accused appellant Avtar Singh @ Jagtar Singh was recovered on 30.8.2004 at 5.30 P.M. vide Ex. P-9 and one blood stained Gandasi was also recovered at the instance of the accused Avtar Singh @ Jagtar Singh. From other accused Manga Singh @ Bhagat Singh, Mohar Singh and Jeevan Ram @ Jivan, Lathis were recovered vide Exs. P-12, P-14 and P-16. 4. The Investigating Officer recorded the statement of all the prosecution witnesses under Section 161 Cr.P.C. and articles recovered during investigation were sent to the Regional Forensic Laboratory, Rajasthan, Jodhpur vide communication dated 9.9.2004 for examination of blood and in turn the report was given by the F.S.L. vide Ex. P-25 dated 22.12.2004. 5. After completion of investigation, the challan was filed in the Court of Judicial Magistrate, First Class, Tibbi, District-Hanumangarh from where the case was committed to the Sessions Judge, Hanumangarh for trial. 6. The District and Sessions Judge, Hanumangarh framed the charge under Section 148 and 302/149 I.P.C. against all the accused appellants and commenced the trial. 7. In the trial statements of prosecution witnesses PW-1-Vikram Singh, PW-Ashok Kumar, PW-3-Jeet Singh, PW-4-Sonu @ Malkiyat, PW-5-Mithu Singh, W-6-Dr. Madan Singh, PW-7-Raju Ram, PW-8-Bhanwar Singh, PW-9-Amilal, W-10-Ravindra Singh were recorded and, thereafter, the statement of accused appellants were recorded under Section 313 Cr.P.C. in which they denied the large and said that false case has been registered against them, they are innocent. 8. In defense statement of six witnesses were recorded namely DW-1-harwan Singh, DW-2-Jogendra Singh, DW-3-Prem Singh, DW-4-Kaku Singh, DW-5-Sewa Singh and DW-6-Deshu. 9. The learned Trial Court after hearing argument of both the parties finally convicted the accused appellants for the offences mentioned above. 10. 8. In defense statement of six witnesses were recorded namely DW-1-harwan Singh, DW-2-Jogendra Singh, DW-3-Prem Singh, DW-4-Kaku Singh, DW-5-Sewa Singh and DW-6-Deshu. 9. The learned Trial Court after hearing argument of both the parties finally convicted the accused appellants for the offences mentioned above. 10. For convenience, both the above Appeals are heard together because both the Appeals are arising out from common judgment passed by the learned lessions Judge, Hanumangarh. 11. The learned Senior Counsel Mr. H.S.S. Kharliya, appearing for the appellants assisted by Mr. S.S. Dhillon raised following grounds upon which it is prayed that prosecution has failed to prove it case beyond reasonable doubt. Tie grounds are as follows:- (A) The learned Counsel for the appellant vehemently argued that the case of prosecution is based upon the testimony of two eye-witnesses PW-1-Vikram Singh, an author of the F.I.R., so also, PW-4-Sonu @ Malkit, but both the witnesses it will reveal that both the witnesses made contradictory statement before the Court with regard to their presence. More so, PW-1-Vikram Singh author of the F.I.R. (Ex. P-1) did not disclose the name of eye-witness PW-4-Sonu @ Malkit in the F.I.R. whereas PW-4-Sonu @ Malkit specifically stated in his statement before the Court that when accused persons were causing injuries to the deceased Mahaveer Singh, ran away from the spot and seen the occurrence from very tittle distance and due to those injuries caused to the deceased he died on spot. It is also stated by PW-4-Sonu @ Malkit that when he was on spot, Vikram Singh did not come on spot and he came on spot after 1 hour. Meaning thereby as per Counsel for the appellants both the witnesses are planted witnesses because they were not present at the time of occurrence took place but subsequently, concocted story was framed to involve all the accused appellants with the alleged crime. Accordingly it is submitted that the conviction which is based upon the testimony of planted witnesses PW-1-Vikram Singh and PW-4-Sonu @ Malkit is not sustainable in law because prosecution has failed to prove its case beyond reasonable doubt. Accordingly it is submitted that the conviction which is based upon the testimony of planted witnesses PW-1-Vikram Singh and PW-4-Sonu @ Malkit is not sustainable in law because prosecution has failed to prove its case beyond reasonable doubt. (B) For the recovery of weapons Gandasi, Sword and Lathis, it is submitted that to prove the recoveries the witness PW-3-Jeet Singh has been produced and the said witness deposed in his statement that upon all the recovery memos of weapon and other articles, he put his signatures but in the cross-examination it is stated by him that recovery proceedings were initiated on next date of incident in the after noon and all the proceedings were come to an end at 5.00 O'clock. Meaning thereby, according to the learned Counsel for the appellant the said witness was not present at the time of recovery of weapons and articles because the sword was recovered at the instance of accused appellant Jagseer Singh @ Jaggi on 30.8.2004 at about 4.45 P.M. and Gandasi was recovered on 29.8.2004 at about 5.15 P.M. and time of recovery of both the weapons are after 5.00 O'clock in the evening, therefore, obviously the Investigating Officer obtained his signatures after recovery of weapons. Similarly, it is submitted that lathis were recovered vide Ex. P-12 from accused appellants Manga Singh @ Bhagat Singh on 31.8.2004 at about 5.00 P.M. and another lathi was recovered from accused appellant Jeevan Ram @ Jeevan Singh vide Ex. P-14 on 24.8.2005 at about 5.45 P.M. and one more Lathi was recovered from accused Mohar Singh on 4.9.2004 at about 7.20 A.M. and upon all these recoveries signature of Jeet Singh is appearing. Upon all the recovery memos of Lathi the witness PW-3-Jeet Singh put his signatures and another witness Ravindra Pal has not been produced before the Trial Court to prove the fact of recovery of Lathi from the accused appellant. In view of the above submission, it is argued that prosecution has completely failed to prove the recovery of weapon from the accused appellants beyond doubt, therefore, the conviction and punishment awarded to the appellant vide impugned judgment deserves to be set aside. (C) With regard to injuries found upon the body of the deceased, it is submitted that Ss per the post mortem report Ex. (C) With regard to injuries found upon the body of the deceased, it is submitted that Ss per the post mortem report Ex. P-19 dated 29.8.2004 eight injuries were found upon the body of deceased and all the injuries are incised wound, therefore, it is obvious that accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh are falsely implicated in this case because as per the allegation of prosecution they were having Lathis in their hands at the time of occurrence and as per statement of eye-witnesses PW-1-Vikaram Singh and PW-4-Sonu @ Malkit injuries were caused by Lathis but no lacerated wound found upon the body of deceased as per post mortem report, therefore, it is a case in which a false investigation was conducted on the basis of concocted story which is evident from the fact that above three innocent accused appellants were implicated by the prosecution in case of murder in spite of the fact that allegation of beating by Lathis is not corroborated by the medical evidence, therefore, the judgment impugned deserves to be quashed. (D) The learned Counsel for the appellants raised grounds that Police Station was 500 meters away from the place of occurrence but F.I.R. was filed at 11.50 P.M. whereas occurrence took place at 11.00 P.M. Likewise the residential house of the Magistrate is 1km away from the Police Station, Tibbi but F.I.R. was not forwarded to the Magistrate immediately, therefore, the aforesaid facts clearly reveal that accused appellants have been implicated in the crime of murder without any reliable evidence on the basis of concocted story, therefore, on this ground also, accused appellants are entitled for acquittal because there is major contradiction in the statement of prosecution witnesses with regard to time of incident and presence of eye-witnesses so also, injuries are not corroborated by the medical evidence of prosecution, therefore, the impugned judgment deserves to be quashed. 12. While raising above grounds it is submitted that finding given by the Trial Court for conviction and punishment against the accused appellants for offence under Sections 302/149 and 148 I.P.C. deserves to be quashed because prosecution has failed to prove its case beyond reasonable doubt. 13. 12. While raising above grounds it is submitted that finding given by the Trial Court for conviction and punishment against the accused appellants for offence under Sections 302/149 and 148 I.P.C. deserves to be quashed because prosecution has failed to prove its case beyond reasonable doubt. 13. Per contra, learned Public Prosecutor vehemently opposed the grounds raised by the Senior Counsel for the appellants and submit that it is a case in which prosecution has proved its case beyond reasonable doubt as per the statements of eye-witnesses PW-1-Vikaram Singh and PW-4-Sonu @ Malkit. Both these witnesses categorically said that incident took place in front of them and all the accused appellants were inflicting injuries upon the body of the deceased Mahaveer Singh which resulted into the death, therefore, upon some minor contradiction in the statement of eye-witnesses it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. 14. With regard to ground of false recovery raised by the learned Counsel for the appellants it is argued that after obtaining information under Section 27 of the Evidence Act, recoveries of weapon sword, Gandasi and Laties were made in the presence of PW-3-Jeet Singh and the said witness categorically stated before the Court that recovery of all the weapons were made in his presence. Further, the Investigating Officer prepared the recovery memos in front of him after recovery of weapon, therefore only on the basis of some answers given in the cross-examination which is contrary to the recovery, does not pre-judice the case of prosecution because the said witness proved the fact of recovery of weapon and other articles before him. Similarly, it is submitted that the Investigating Officer has categorically said in his statement before the Court that evidence collected by him against accused appellants, therefore, all the arguments raised by the learned Counsel for the appellants deserves to be rejected because prosecution has proved the case beyond reasonable doubt so as to convict all the accused appellants for alleged offence of murder, therefore, it is submitted that Appeals may be dismissed. 15. After- hearing the learned Counsel for the parties, we have minutely scanned the entire evidence, so also, considered the arguments. It is evident from the prosecution evidence that F.I.R. (Ex. 15. After- hearing the learned Counsel for the parties, we have minutely scanned the entire evidence, so also, considered the arguments. It is evident from the prosecution evidence that F.I.R. (Ex. P-1) was filed by PW-1-Vikaram Singh who is real brother of the deceased Mahaveer Singh and PW-1-Vikaram Singh and PW-4-Sonu @ Malkit are the eye-witnesses of the case. Upon perusal of their statements it is revealed that both the witnesses stated about the presence of all the accused appellants upon the place of occurrence. It is true I that there is some contradiction in the statement of both the witnesses, but in our opinion their testimony cannot be rejected at the threshold because upon the body of deceased Mahaveer Singh 8 incised wound were found and out of five accused appellants. Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi were having sharp edged weapon, sword and Gandasi. It is also emerges from i the assessment of the evidence that occurrence took place on 11.00 O'clock in the night on 28.9.2004 and F.I.R. was registered in the Police Station Tibbi on 11.50 P.M. we are of the firm view that in the case of murder it is the duty of brother to go for the rescue of injured so as to save him, therefore, there is no strength in the argument of the learned Counsel for the appellants that F.I.R. was filed after delay. 16. To consider the argument that there is no corroboration of the injuries I found upon the body of deceased and weapon recovered, we have perused the post mortem report (Ex. P-19) in which the witness PW-6-Dr. Madan. 16. To consider the argument that there is no corroboration of the injuries I found upon the body of deceased and weapon recovered, we have perused the post mortem report (Ex. P-19) in which the witness PW-6-Dr. Madan. Singh who performed the postmortem stated that 8 incised wounds were found upon the body of deceased Mahaveer Singh, which reads as under: "(1) dVk gqvk ?kko] 12 x 6 ls0eh0] nkfguh dykbZ ds vkj ikj Fkk flQZ 6 ls0eh0 peM+h tqMh gqbZ FkhA (2) dVk gqvk ?kko] 4x2x0.5 ls0eh0] Nkrh ij nkfgus LVuksZ DySfodwyu tksM+ ds nka;h rjQ FkkA (3) dVk gqvk ?kko] 7x4x4 ls0eh0] xnZu ij cka;h vksj fLFkr Fkk ftlls fd bUVjuy dSjksfVM vkjVMjh vksj ,DlVuZy tqxyj osu dVh gqbZ FkhA (4) dVk gqvk ?kko] 10x3x5 ls0eh0] eqag ij nkfguh vkSj nka;s dku ls ysdj ,axy vkWQ ekmFk rd ekStwn FkkA (5) dVk gqvk ?kko] 1x0.3x0.3 ls0eh0] cka;s dU/ks ds mij fLFkr FkkA (6) dVk gqvk ?kko] 2x0.4x0.3 ls0eh0] cka;s vaxwBs ds i`"B Hkkx ij eSVkdkjiksa QsysfUt;y TokbZaV ij fLFkr FkkA (7) dVk gqvk ?kko] 6x0.4 ls0eh0 x gM~Mh rd xgjk] flj ij ihNs dh vksj fLFkr FkkA (8) dVk gqvk ?kko] 3.5 x 0.3x3 ls0eh0] pksV uEcj 3 ds uhps fLFkr FkkA " 17. The post mortem of the deceased Mahaveer Singh was conducted on 29.8.2004 in between 9.30 to 10.30 A.M. in the morning and report Ex. P-19 was prepared by the doctor. In the cross-examination PW-6-Dr. The post mortem of the deceased Mahaveer Singh was conducted on 29.8.2004 in between 9.30 to 10.30 A.M. in the morning and report Ex. P-19 was prepared by the doctor. In the cross-examination PW-6-Dr. Madan Singh gave following statement before the Court:- " pksV la[;k 1 gkFk ij pksV Fkh ysfdu bl pksV ls Hkh e`R;q dkfjr gks ldrh gSA jsfM;y vkVZjh dVh gqbZ Fkh bl dkj.k ls eSa ;g dg ldrk gwa fd e`R;q gks ldrh gS eSaus izn'kZ ih&19 esa pksV uEcj 1 ds fy, jsfM;y vkVZjh dVh gksus dk fy[kk gqvk ugha gSA jsfM;y vkVZjh ugha dVh gqbZ gks rks e`R;q dh lEHkkouk ugha gks ldrhA pksV la[;k 2 ls Hkh e`R;q dkfjr gks ldrh gSA batjh uEcj 2 ,DLVuZy dSjksfMV vkVZjh vkSj ,DLVuZy tqxyj osu dVus ls vR;kf/kd jDr cgus ds dkj.k e`R;q dk dkj.k cu ldrk gSA fQj xokg us dgk fd eSaus pksV la[;k 3 ds fy, crkbZ gS pksV la[;k 2 ls e`R;q dkfjr ugha gks ldrhA pksV la[;k 4] 5 o 6 ls e`R;q dkfjr gksuk laHko ugha gSA pksV la[;k 8 ls Hkh e`R;q dkfjr ugha gks ldrhA pksV la[;k 7 ls Hkh e`R;q dkfjr gksus dh lEHkkouk ugha FkhA ;g ckr lgh gS fd pksV la[;k 3 ls e`R;q dkfjr gksus dh lEHkkouk gks ldrh gSA pksV la[;k 1 ds ckjs esa eSaus mij crk;k gSA pksV la[;k 1 o 3 esa ls pksV la[;k 3 ds e`R;q dkfjr gksus dh lEHkkouk T;knk gks ldrh gSA ;g ckr lgh gS fd izn'kZ ih&19 esa eSaus tks pksVsa fy[kh gS oks lk/kkj.k gS ;k xEHkhj izd`fr dh gS mldk ugha fy[kk gSA " 18. As per the above statement of doctor, the injury No. 1 was inflicted upon the hand and,injury No. 3 upon the left side of neck were the probable injuries to cause of death of deceased Mahaveer Singh. Meaning thereby, as per the opinion of the doctor no particular injury was sufficient to cause death of deceased so also the injury mentioned in the post mortem report were caused by sharp edged weapon. Meaning thereby, as per the opinion of the doctor no particular injury was sufficient to cause death of deceased so also the injury mentioned in the post mortem report were caused by sharp edged weapon. Meaning thereby, there is strength in argument of the learned Counsel for the appellant that prosecution has not proved its case beyond reasonable doubt against the accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh from whom Lathis were recovered and as per allegation leveled by the eye-witnesses they inflicted injury by Lathis but medical evidence is not corroborating such allegation because none of the injury found upon the body of the deceased can be caused by the Lathi which is blunt weapon, therefore, even if it is presumed that 3 accused appellants namely, Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh were present at the place of occurrence it cannot be said that prosecution has proved its case beyond reasonable doubt so as to convict them for offence under Section 302 I.P.C. 19. Both the eye-witnesses PW-1-Vikram Singh and PW-4-Sonu @ Malkit stated in their statement that they were present at the time of occurrence took place but this Court cannot loose sight of the fact that both the witnesses did not said in their statement that both were present simultaneously when occurrence took place. Meaning thereby the finding given by the learned Trial Court so as to convict the accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ leevan and Mohar Singh from whom Lathis were recovered is not sustainable in law because no lacerated would was found upon the body. 20. It is also one of the important aspect of the case that there is no such evidence on record to establish the allegation of motive or intention so as to convict the accused appellant for offence of murder, but a young boy Mahaveer Singh died due to 8 incised wounds caused upon his body and two eye-witnesses PW-1-Vikaram Singh brother of the deceased and PW-4-Sonu @ Malkit stated in their statements that accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi were having sharp edged weapon Gandasi and sword in their hands and other persons were having Lathis in their hands and they inflicted injuries upon the body of Mahaveer Singh. Both the witnesses made omnibus statement and no specific allegation to cause particular injury is leveled against any person, but it is established that blood stained sharp edged weapons Gandasi and sword were recovered from accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi and upon chemical examination of both the weapons it is reported by the F.S.L. that human blood of group "A" was found upon both the weapons. In view of the above, the medical evidence is corroborating the fact that injuries can be caused by sharp edged weapon and accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi were having sharp edged weapon, sword and Gandasi in their hands, so also, as per the report of the F.S.L. no blood was detected upon the three Lathis which were recovered from the accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh, therefore, it is obvious that the prosecution has failed to establish their case beyond reasonable doubt against accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh so as to convict them for offence of murder but has proved its case beyond reasonable doubt against accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi. 21. In the light of above discussion, we are of the opinion that PW-1-Vikaram Singh stated in his statement that before incident some quarrel took place in between Mahaveer Singh and Jagseer Singh @ Jaggi for using abusive language against Sonu, friend of deceased Mahaveer Singh and Mahaveer Singh raised objection for using filthy language. Therefore, obviously to give lesson, the injuries were caused by the accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi. Therefore, in view of the fact fact, the deceased Mahaveer Singh died due to injuries inflicted by the accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi by sharp edged weapons, Sword and Gandasi. Therefore, we hold that no error has been committed by the learned Trial Court to hold both the accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi guilty for offence of murder. We have also considered the opinion of doctor given in post mortem report (Ex. Therefore, we hold that no error has been committed by the learned Trial Court to hold both the accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi guilty for offence of murder. We have also considered the opinion of doctor given in post mortem report (Ex. P-19) in which following opinion is given by the doctor, which reads as under:- "Opinion: In my opinion from above mentioned observations cause of death is multiple injuries results in excessive hemorrhage leads to shock and death." Meaning thereby, according to the medical evidence also the death was caused due to multiple incised wound, therefore, it cannot be said -that prosecution has not proved its case beyond reasonable doubt against the two accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi, but for the reason that no lacerated wound was found upon the body of deceased, therefore, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh against whom there is allegation that they were having Lathis in their hands. 22. In view of the above, both the Criminal Appeals are hereby partly allowed. The conviction and sentence against the accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh for the offence under Sections 148 and 302/149 I.P.C. passed by the learned District and Sessions Judge, Hanumangarh vide Judgment dated 25.5.2007 in Sessions Case No. 162/2004 is hereby quashed and set aside while giving them benefit of doubt. The accused appellants Manga Singh @ Bhagat Singh, Jeevan Ram @ Jeevan and Mohar Singh are on bail, therefore, their bails bonds are hereby discharged. However, the finding for conviction of the learned Trial Court for committing offence under Sections 302/149 and 148 I.P.C. against the accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi vide Judgment dated 162/2004 is hereby modified and the accused appellants Avtar Singh @ Jagtar Singh and Jagseer Singh @ Jaggi are hereby held guilty for offence under Section 302/34 I.P.C. and their punishment of life imprisonment awarded by the Trial Court vide Judgment dated 25.5.2007 is hereby maintained.Appeal partly allowed. *******