JUDGMENT Kanwaljit Singh Ahluwalia, J. - Madho son of Sheyodan on 4.3.1988 at about 10.00-11.00 PM at Harmada Road, Sanvatsar, Madanganj was murdered by causing injuries with lathis and stones. 2. Ranjeet Singh (PW.1) who had not witnessed the occurrence, on the information relayed by two eye-witnesses Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4) presented written report (Ex.P.1) before ASI Hari Kishan (not examined) who was then posted at Police Station Madanganj. On the basis of said written report (Ex.P.1), formal FIR (Ex.P.2) bearing No. 30/1988 was registered at Police Station Madanganj for offences under Sections 147, 148, 149 and 302 IPC. Investigation of the said FIR was carried by Ram Ratan (PW.13), who was then posted as SHO, Police Station Roopangarh. During investigation Baldev, Sahdev both sons of Narayan, Parsa s/o Balwa, Banna s/o Laxman, Likhma s/o Ladu, residents of Sanvatsar, Sheyogi and Ranglal both sons of Moolaram, r/o Bhojiyawas, were nominated as accused. 3. The above said accused persons were tried by the Court of Additional Sessions Judge No. 2, Ajmer for offences under Sections 147, 302 r.w. 149 IPC. The trial court vide impugned judgment dated 30.3.1991 held all the above said accused guilty of offences under Sections 147 and 302/149 IPC. Having convicted the appellants for the said said offences, the trial court vide a separate order of even date sentenced the appellants as under:- "U/s. 147 IPC: One year rigorous imprisonment. U/s.302/149 IPC: Life imprisonment, to pay a fine of Rs. 100/- each and in default thereof to undergo six months simple imprisonment." 4. Aggrieved against their conviction and sentence, the appellants filed the present appeal. 5. Out of above said seven appellants, three principal accused namely Baldev, Sahdev both sons of Narayan and Sheyoji s/o Moolaram have expired. Hence, appeal qua them on 18.9.2017 was dismissed as having abated. Therefore, the present appeal survives qua Parsa s/o Balwa, Banna s/o Laxman, Likhma s/o Ladu and Ranglal s/o Moolaram. 6. Ranjeet Singh (PW.1) in written report (Ex.P.1) stated that he is Manager of Yadav Freight Carriers. Truck No. RRZ-9785 belonging to the company on Ahmedabad - Kanpur road was driven by Madho s/o Sheyodan Gurjar. In the night before the occurrence, Madho parked the truck in front of his house. Yesterday at 2.30 PM goods carried in the truck were unloaded in godown of the company. Truck No. RRZ-9785 belonging to the company on Ahmedabad - Kanpur road was driven by Madho s/o Sheyodan Gurjar. In the night before the occurrence, Madho parked the truck in front of his house. Yesterday at 2.30 PM goods carried in the truck were unloaded in godown of the company. Unloaded truck was parked by Madho at his house. Madho in the truck was accompanied by his two friends and castemen, namely Laxman s/o Harji and Laxman s/o Bhairu. On 4.3.1988 in the night at about 11.00 PM Laxman s/o Harji and Laxman s/o Bhairu came and informed that at 10.00 PM they along with Madho went to drop Mohanlal Sharma at Aditya Mills. When they crossed bypass of Sanvatsar at Harmada Road, 6-7 persons, Baldeva Gurjar etc. were sitting there. Madho called them by bad name and thereafter, he had gone to drop Mohanlal. After dropping Mohanlal they took Pan near Gagandeep Cinema. They were returning to Sanvatsar when Madho told them to stop the truck to enable him to urinate. Madho alighted from the truck to urinate. At that time, Baldev, Sheyoji, Ranglal, Laxman, Sahdev, Parsa and Banna, all Gurjar by caste, came armed with stones and lathis. Immediately on arrival they started beating Madho with stones. They also pelted stones at Laxman s/o Bhairu. Laxman boarded the truck and told Laxman s/o Harji to drive the truck immediately. They came in the truck whereas Madho was left at the spot. He was being given beating by above said persons. Upon information received, Ranjeet Singh (PW.1), Manager of Yadav Freight Carriers along with Roop Chand Modi accompanied the two witnesses to the spot. When they reached near the house of Muneer Khan, they found that Madho was lying there. He had received injuries on head, eyes, shoulder and face. Blood was oozing. They felt pulse of Madho and found him dead. After leaving some persons near the dead body, Ranjeet Singh (PW.1) proceeded to the Police Station to lodge the report. 7. On the basis of above said written report (Ex.P.1), formal FIR (Ex.P.2) bearing No. 30/88 was registered at Police Station Madanganj. Occurrence in the present case took place on 4.3.1988 at 10.00-11.00 PM, whereas on the intervening night of 4th & 5th March, 1988, report was lodged by Ranjeet Singh (PW.1) on 5.3.1988 at 12.15 AM. 8. 7. On the basis of above said written report (Ex.P.1), formal FIR (Ex.P.2) bearing No. 30/88 was registered at Police Station Madanganj. Occurrence in the present case took place on 4.3.1988 at 10.00-11.00 PM, whereas on the intervening night of 4th & 5th March, 1988, report was lodged by Ranjeet Singh (PW.1) on 5.3.1988 at 12.15 AM. 8. As is discernible from narration of facts, Ranjeet Singh (PW.1) has not witnessed the occurrence. Only two persons namely Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4) were named as eye-witnesses. 9. Laxman s/o Bhairu (PW.2) in the occurrence received injuries. It has also been stated in the written report (Ex.P.1) that Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4) after they escaped from the spot, relayed information to Ranjeet Singh (PW.1) who accompanied by them reached at the spot and found that Madho had died because of the injuries received. 10. Dr. K.M. Srivastava (PW.12) proved on record postmortem report (Ex.P.13). We need not notice the injuries as it is admitted case that Madho died as a result of violence. As per opinion of the Doctor, cause of death was hemorrhagic shock due to hemothorax as a result of injury (punctured wounds) to vital organs, i.e. right lung and heart. Injury to right lung and heart was caused because of fracture of second, third and fourth thoracic vertebrae. All the injuries on the person of deceased were ante-mortem in nature. 11. Prosecution in order to secure conviction of the accused-appellants examined 13 witnesses, namely Ranjeet Singh (PW.1), Laxman s/o Bhairu (PW.2), Mangilal (PW.3), Laxman s/o Harji (PW.4), Mewaram (PW.5), Mohanlal (PW.6), Mangilal (PW.7), Sheyokaran (PW.8), Madanlal (PW.9), Sheyoji (PW.10), Kishan (PW.11), Dr. K.M. Srivastava (PW.12) and Ram Ratan (PW.13). 12. Ranjeet Singh (PW.1), first informant, proved the written report (Ex.P.1) on the basis of which formal FIR (Ex.P.2) was registered. He also proved preparation of site plan (Ex.P.3), Panchayatnama/inquest (Ex.P.4), lifting of sample soil vide memo (Ex.P.5) and blood stained soil vide memo (Ex.P.6). This witness also proved memo (Ex.P.7) whereby blood stained bushtit of the deceased was taken into possession. This witness also proved memo (Ex.P.8) whereby the truck driven by the deceased was taken into possession. 13. Ranjeet Singh (PW.1) in court admitted that the accused were not known to him. This witness also proved memo (Ex.P.7) whereby blood stained bushtit of the deceased was taken into possession. This witness also proved memo (Ex.P.8) whereby the truck driven by the deceased was taken into possession. 13. Ranjeet Singh (PW.1) in court admitted that the accused were not known to him. The witness admitted that when he relayed information to police, he had not named the accused as the said names were not known to him. We reproduce following portion from cross-examination of Ranjeet Singh (PW.1) as under:- HINDI MATTER 14. The witness stated that he narrated the occurrence orally to Thanedar and he wrote the written report (Ex.P.1) outside the police station as Thanedar directed him to submit the report after naming the accused. We reproduce following portion from cross-examination of the witness as under:- HINDI MATTER In court prosecution examined Laxman s/o Bhairu (PW.2), Mangilal (PW.3), Laxman s/o Harji (PW.4), Mevaram (PW.5) as eye witnesses of the occurrence. Out of above four eye-witnesses examined, in the written report (Ex.P.1) only Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4) have been named as eyewitnesses. In the written report (Ex.P.1) it was nowhere stated that Mangilal (PW.3) and Mevaram (PW.5) were present at the place of occurrence along with deceased. 15. Before we revert to the testimony of eye-witnesses, we may notice that Mohanlal (PW.6) in court deposed that he was dropped by the deceased, Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4) at the place of his duty. This witness in examination-in-chief stated that he has not seen the accused present in court at the time when he accompanied the witnesses and the deceased for reporting at place of his duty. The relevant portion from examination-in-chief of Mohanlal (PW.6) reads as under:- HINDI MATTER 16. Mangilal (PW.7) attested the site plan of the spot (Ex.P.9) and inquest/Panchayatnama (Ex.P.4). 17. Sheyokaran (PW.8) stated that in the night at about 10.30- 10.45 PM Laxman s/o Harji (PW.4) and Laxman s/o Bhairu (PW.2) came to him and said that Madho has been killed. He relayed said information to family members of the deceased. 18. Madanlal (PW.9) attested memos prepared at the spot regarding articles recovered at the spot. 19. Sheyoji (PW.10) witnessed the recovery of lathi at the instance of accused Sheyoji vide memo (Ex.P.13). 20. Kishan (PW.11) witnessed the recovery of lathi at the instance of Baldev accused vide memo (Ex.P.14). He relayed said information to family members of the deceased. 18. Madanlal (PW.9) attested memos prepared at the spot regarding articles recovered at the spot. 19. Sheyoji (PW.10) witnessed the recovery of lathi at the instance of accused Sheyoji vide memo (Ex.P.13). 20. Kishan (PW.11) witnessed the recovery of lathi at the instance of Baldev accused vide memo (Ex.P.14). 21. As already noticed, Dr. K.M. Srivastava (PW.12) performed autopsy on the dead body of Madho. 22. Ram Ratan (PW.13) being investigating officer proved various facets of investigation. 23. Laxman s/o Bhairu (PW.2) in court deposed that on 4.3.1988 Madho s/o Sheyodan came to his house to greet him on the occasion of Holi. At that time Laxman s/o Harji (PW.4), Mohanlal (PW.6), Kalu s/o Sheyodan (not examined) came to his house. They in the morning at 8.00-9.00 AM consumed a bottle of alcohol. Thereafter Mohan (PW.6) also came there. They all took lunch at the house of Madho. The witness stated that they all in a truck went to Adiya Mills where Mohanlal (PW.6) was working. On return, near Gagandeep Cinema they purchased Pan. At that time Madho told Laxman s/o Harji to drive the truck. When they reached near the house of Muneer Khan at Harmada Road Mod, Madho said to stop the truck so he can urinate. After the truck was stopped Madho alighted to urinate, then Sheyoji and Baldev accused caused injuries to Madho with stones. This witness in examination-in-chief only named Baldev and Sheyoji accused. We reproduce relevant portion from examination-in-chief of Laxman s/o Bhairu (PW.2) as under:- HINDI MATTER 24. We may notice here that both Baldev and Sheyoji accused have expired during pendency of appeal and appeal qua them has already been dismissed having abated. 25. Another eye-witness who was named in the FIR, Laxman s/o Harji (PW.4) was declared hostile to the prosecution and hence, Public Prosecutor was admitted to contradict him with his previous statement recorded under Section 161 Cr.P.C., 1973 This witness in court stated that he only saw Madho lying at the spot. He had not seen anybody causing injuries. We reproduce following portion from examination-in-chief of Laxman s/o Harji (PW.4) as under:- HINDI MATTER When confronted with his previous statement recorded under Section 161 Cr.P.C., 1973 the witness in cross-examination by Public Prosecutor deposed as under:- HINDI MATTER 26. He had not seen anybody causing injuries. We reproduce following portion from examination-in-chief of Laxman s/o Harji (PW.4) as under:- HINDI MATTER When confronted with his previous statement recorded under Section 161 Cr.P.C., 1973 the witness in cross-examination by Public Prosecutor deposed as under:- HINDI MATTER 26. Now we shall revert to the testimony of Mangilal (PW.3) and Mevaram (PW.5) who were later introduced as eye-witnesses. We may emphasize, at the cost of repetition, that they were not named as eye-witnesses in written report (Ex.P.1) leading to registration of FIR (Ex.P.2). 27. Mangilal (PW.3) in court stated that on the day of occurrence he was sitting along with Meva, Baldev, Sahdev, Banna, Parsa, Likhma, Sheyoji, Harlal and Ranglal. At that time one vehicle came from bypass towards Ajmer. Baldev told them that driver of the vehicle abused him. After sometime the vehicle returned. One man alighted and Baldev exhorted all to give beating to said man. Thereafter Baldev caused one injury with stone on the head of said person. Thereafter Baldeva, Sahdeva, Sheyoji, Banna, Parsa, Likhma pelted stones. The witness stated that he is not aware of the names of persons to whom injuries were caused. The witness admitted in court that he and Meva made no attempt to intervene. The witness was confronted with his police statement (Ex.D.2) where material facts have not been recorded. 28. From perusal of record we find that Exhibit-D.2 was recorded on 16.3.1988, after 12 days of the occurrence, and 11 days after lodging of the FIR. 29. Mangilal (PW.3) in court admitted that in the village they had not narrated the occurrence to Ramkaran. The witness stated that in the night after the occurrence, he slept in his house. We reproduce following portion from cross-examination of Mangilal (PW.3):- HINDI MATTER 30. The witness in court stated that he had not reported the matter to the police after 11 days of the occurrence. The witness stated that the statement recorded by the police is not correct statement. We find that except statement (Ex.D.2) there is no other statement of Mangilal (PW.3) on record. 31. Mevaram (PW.5) reiterated as to what was stated by Mangilal (PW.3). He stated that he was sitting along with accused. The witness stated that Baldev said to other co-accused to cause injuries to the deceased. We find that except statement (Ex.D.2) there is no other statement of Mangilal (PW.3) on record. 31. Mevaram (PW.5) reiterated as to what was stated by Mangilal (PW.3). He stated that he was sitting along with accused. The witness stated that Baldev said to other co-accused to cause injuries to the deceased. In cross-examination, the witness stated that after the occurrence, for 10-15 days he remained in the village and he narrated the occurrence to police after 5-6 days. We reproduce following portion from cross-examination of the witness:- HINDI MATTER 32. We find from record that statement (Ex.D.4) of witness Mevaram (PW.5) was recorded by the police on 16.3.1988, i.e. 12 days after the occurrence and 11 days after registration of the FIR. We find conduct of both Mangilal (PW.3) and Mevaram (PW.5) as unnatural and improbable. Firstly, they had not intervened at the place of occurrence; secondly, after seeing the occurrence they came to their village. They have not narrated the occurrence to anybody. Their statements to the police were recorded on 16.3.1988, whereas occurrence had taken place on 4.3.1988 at 10.00-11.00 PM. Furthermore, both Mangilal (PW.3) and Mevaram (PW.5) were not named as eye-witnesses in the written report (Ex.P.1). Written report (Ex.P.1) was submitted on 5.3.1988 at 12.15 AM and the case was also registered on the same date. Therefore, there is no doubt that Mangilal (PW.3) and Mevaram (PW.5) were introduced later as eye-witnesses. Till 16.3.1988, in the investigation carried only two eye-witnesses, Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4) have surfaced as eyewitnesses of the occurrence. Both these eye-witnesses in court have only named Baldev and Sheyoji accused as the persons who caused injuries to deceased Madho. 33. Having ruled out the presence of Mangilal (PW.3) and Mevaram (PW.5) at the spot, we can only hold Baldev and Sheyoji accused as guilty of the offence as they were specifically named by both eye-witnesses, namely Laxman s/o Bhairu (PW.2) and Laxman s/o Harji (PW.4). Both Baldev s/o Narayan and Sheyoji s/o Moolaram have died during pendency of appeal and their appeal has already been dismissed as having abated. 34. As stated above, accused Sahdev s/o Narayan has also expired during pendency of appeal and his appeal has also been dismissed as having abated by this court. 35. Both Baldev s/o Narayan and Sheyoji s/o Moolaram have died during pendency of appeal and their appeal has already been dismissed as having abated. 34. As stated above, accused Sahdev s/o Narayan has also expired during pendency of appeal and his appeal has also been dismissed as having abated by this court. 35. In view of evidence available on record, we cannot hold four surviving accused, namely Parsa s/o Balwa, Banna s/o Laxman, Likhma s/o Ladu and Ranglal s/o Moolaram as accused. Consequently, their appeal is accepted and the impugned judgment whereby they were convicted and the order of sentence are set aside. They are acquitted of the charges. 36. We find that the above said four appellants, namely Parsa s/o Balwa, Banna s/o Laxman, Likhma s/o Ladu and Ranglal s/o Moolaram, shortly after admission of the appeal, on 12.4.1991 were ordered to be released on bail after suspension of their sentence. Hence, bail bonds and surety bonds furnished by them are discharged. The trial court is directed to comply with the provisions of section 437A Cr.P.C., 1973.