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Himachal Pradesh High Court · body

2017 DIGILAW 793 (HP)

Jamna Devi v. State of Himachal Pradesh

2017-07-13

DHARAM CHAND CHAUDHARY

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Dharam Chand Chaudhary, J. This judgment shall dispose of both appeals arising out of the same judgment, whereby the appellants (hereinafter referred to as ‘A-1 to A-4’) have been convicted and sentenced for the commission of an offence punishable under Sections 307, 326, 342 read with Section 34 of the Indian Penal Code. They, however, have been acquitted of the charge under Section 201 read with Section 34 of the Indian Penal Code framed against each of them for want of evidence. 2. The appellants in these appeals are Rattan Chand (since dead hence appeal against him stands abated) and Jamna Devi, accused No. A-1 and A-2, whereas, the appellants in connected appeal Babu Ram is A-3 and Rajesh Kumar A-4. The complainant is PW-4 Prem Chand, father of the victims of occurrence, PW-1 Shonki Ram and PW-2 Prithi Chand. Admittedly, both parties are inimical to each other. 3. The complainant party laid plinth for construction of house on road side over the Government land at a place known as Bage-Da-Moar in Village Saravnati, Tehsil Khundian, District Kangra by way of making encroachment thereon. Adjoining to the plinth, a ‘Palli’ (shed) of the complainant party was in existence and being used for sleeping during night time to keep watch and ward of the on going construction work. The house of the accused party is also situated nearby to the plinth laid by the complainant party. As usual on 16.04.2002, around 9.30 p.m. PW-1 and PW-2 were going to the site of construction for sleeping there. When reached on road side, they raised alarm ‘Bachao’ ‘Bachao’. On finding that it is PW-1 and PW-2 have raised alarm to save them, the complainant (PW-4) accompanied by his daughter-in-law Kavita (PW-8) another daughter-in-law Nimo, his wife and son Desh Raj rushed to the spot. They noticed PW-1 lying unconscious on road in a pool of blood, whereas, A-3 stabbed PW-2 Prithi Chand with sharp edged weapon on his stomach in their presence. A-1, A-2 and A-4 also administered beatings to PW-2 with kick and fist blows. They dragged him towards there house. When complainant asked them not to kill his son (PW-2), he was pushed aside by A-4. At that very time, they picked up PW-2 and put him in a vehicle bearing registration No.HP-55-2868. A-2 and A-3 had taken PW-2 to some unknown destination. They dragged him towards there house. When complainant asked them not to kill his son (PW-2), he was pushed aside by A-4. At that very time, they picked up PW-2 and put him in a vehicle bearing registration No.HP-55-2868. A-2 and A-3 had taken PW-2 to some unknown destination. After that the complainant shifted his another son PW-2 Shonki Ram in a vehicle to the hospital at Jawalamukhi. There he came to know that his son Prithi Chand was also brought there for medical check-up, however, taken by A-3 and A-4 to the hospital at Dharamshala. PW-1 Shonki Ram was also referred to the hospital at Dharamshala. When complainant reached in the hospital at Dharamshala with PW-1, he came to know that his another son PW-2 Prithi Chand was already taken to operation theatre by the doctor for conducting surgery. Since accused persons were inimical to him, therefore, it is for this reason, they assaulted his sons PW-1 and PW-2 intentionally to do away with their lives. It is in this manner the complainant (PW-4) has disclosed the occurrence having taken place in his statement Ext. PW- 4/A recorded under Section 154 of the Code of Criminal Procedure. 4. On the basis of statement Ext. PW-4/A, FIR Ext. PW-10/B came to be recorded against all the accused persons under Section 307 of the Indian Penal Code. 5. The investigation of the case was conducted partly by PW-14 ASI Kaur Chand. As a matter of fact, it is on the application he made to the Medical Officer both injured were medically examined in Community Healthy Centre, Jawalamukhi and later on when referred from Jawalamukhi in zonal hospital, Dharamshala. He had made the application Ext. PW-14/A for the medical examination of PW-2 Prithi Chand and Ext. PW-14/B for the medical examination of PW-1 Shonki Ram. After recording statement of PW-4 Ext. PW-4/A under Section 154 of the Code of Criminal Procedure, rukka was sent to police station, Jawalamukhi, on the basis whereof FIR Ext. PW-10/B was registered. He procured MLCs Ext. PW-3/A in the case of PW-2, where Ext. PW-3/C in that of PW-1 from the hospital. Since ASI Pratap Chand, who had investigated the case partly died before his statement could have been recorded during the course of trial, therefore, PW-14 has also proved the spot map Ext. PW- 14/C prepared by said Pratap Chand. The recovery memo Ext. PW-3/A in the case of PW-2, where Ext. PW-3/C in that of PW-1 from the hospital. Since ASI Pratap Chand, who had investigated the case partly died before his statement could have been recorded during the course of trial, therefore, PW-14 has also proved the spot map Ext. PW- 14/C prepared by said Pratap Chand. The recovery memo Ext. PW-4/B vide which the blood stained clothes of PW-1 Shonki Ram were taken in possession was also proved by him. He has also proved Ext. PW-7/A and Ext. PW-14/D being in the hand of said Pratap Chand. During the course of investigation, a case punishable under Sections 326, 342, 201 read with Section 34 of the Indian Penal Code was also found to be made out against the accused persons. 6. On the completion of investigation, the police filed the report under Section 173 of the Code of Criminal Procedure against all the accused persons. Learned trial Judge on appreciation of the evidence collected by the investigating agency and hearing learned Public Prosecutor as well as learned defence counsel and on finding a prima-facie case having been made out for the commission of offence punishable under Sections 307, 326, 342, 201 read with Section 34 of the Indian Penal Code against each of the accused proceeded to frame charge accordingly. 7. As discussed hereinabove, besides injured PW-1 and PW-2, the complainant, who is PW-4, Desh Raj (PW-6), PW-4 Prem Chand and his son and Kavita his daughter-in-law (wife of PW-2 Prithi Chand) were examined by the prosecution to prove its case against the accused persons. Besides them, the prosecution has also examined PW-3 Dr. Sumeet Kundu, the then Medical Officer Community Health Centre, Jawalamukhi, who had initially medically examined both injured when taken there and referred them to zonal hospital, Dharamshala for further management. PW-5 Ram Singh, is a witness to the recovery of blood stained clothes of injured Shonki Ram and Prithi Chand, which were handed over to the police by their father PW-4 Prem Chand. PW-7 Dr. Puneet Mahajan was posted as Registrar in department of surgery at the relevant time. According to him, both injured were admitted in RPMC, Tanda in surgery department. They were operated upon. The injuries on their person in his opinion could have been inflicted with a knife. PW-7 HC Pritam Singh is a witness to recovery of knife Ext. PW-7 Dr. Puneet Mahajan was posted as Registrar in department of surgery at the relevant time. According to him, both injured were admitted in RPMC, Tanda in surgery department. They were operated upon. The injuries on their person in his opinion could have been inflicted with a knife. PW-7 HC Pritam Singh is a witness to recovery of knife Ext. P-1, which according to him was taken into possession vide recovery memo Ext. PW-7/A. PW-9 Sunil Kumar was also associated to witness the occurrence, however, he turned hostile to the prosecution and not supported its case. PW-10 Head Constable Satpal was posted as MHC in Police Station, Jawalamukhi at the relevant time. PW-11 Sukh Ram has been examined to support the prosecution case so as to hiring of taxi by the complainant party to remove injured Shonki Ram to hospital and he also accompanied the complainant party along with injured to the hospital. PW-12 Hari Mitter has not supported the prosecution case qua recovery of knife Ext. P-1 vide memo Ext. PW- 7/A in his presence. PW-13, the then SI/SHO Jasbir Singh, Police Station, Jawalamukhi is a witness to the prepration of challan and presentation thereof in the Court. 8. On the other hand, accused persons were also examined under Section 313 of the Code of Criminal Procedure. They, however, not opted for producing any evidence in their defence. 9. Learned trial Court on appreciation of the evidence available on record has held all the accused persons guilty for the commission of an offence punishable under Section 307, 326, 342 read with Section 34 of the Indian Penal Code, however, no case against them was found to be made out for the commission of an offence punishable under Section 201 read with Section 34 of the Indian Penal Code, hence were acquitted of the charge so framed against them. 10. Taking into consideration the old age of A-1 and A-2, they were sentenced to undergo rigorous imprisonment for two years each and to pay Rs.5,000/- as fine under Sections 307, 326 IPC and to undergo simple imprisonment for six months each under Section 342 IPC. A-3 and A-4, however, were sentenced to undergo rigorous imprisonment for six years each and to pay Rs.10,000/- each as fine under Sections 307, 326 IPC, whereas, to undergo simple imprisonment for six months each and to pay Rs.1,000/- as fine under Section 342 IPC. A-3 and A-4, however, were sentenced to undergo rigorous imprisonment for six years each and to pay Rs.10,000/- each as fine under Sections 307, 326 IPC, whereas, to undergo simple imprisonment for six months each and to pay Rs.1,000/- as fine under Section 342 IPC. The substantive sentences imposed upon each of the accused persons, however, stand suspended consequent upon an order to this effect passed by this Court in these appeals. 11. All the four convicts-accused have questioned the legality and validity of the findings of conviction and sentence recorded against them on the grounds inter-alia that the same having been recorded on hypothesis, conjectures and surmises are not legally sustainable. Undue weightage has been given by learned trial Court to the testimony of the tutored and interested witnesses. It is doubtful that so called eye witnesses PW-4, PW-6 and PW-8 were present on the spot, hence could have witnessed the manner in which the occurrence has been claimed to be taken place. Learned trial Court has erred while placing reliance on the allegations leveled against the accused persons by PW-1, PW-2, PW-4, PW-6 and PW-8, none else but the members of same family, hence hostile and inimical to the accused persons. The recovery of knife Ext. P-1 is not at all proved in accordance with law. The prosecution story qua availability of knife Ext. P-1 with A-3, Babu Ram is highly doubtful. The prosecution story qua hearing alarm raised by PW-1 and PW-2 by the complainant (PW- 4) and other members of their family from a distant place is again doubtful. As per own testimony of PW-1 and PW-2, they were fully conscious on the next day, hence capable of making statement, however, the forwarding of FIR to the Court was considerably delayed. The variance between medical and ocular version has not been taken into consideration. As per ocular version, only one knife blow was inflicted on the back of PW-1 Shonki Ram, whereas, the medical evidence reveals that he has suffered another major incised wound on his chest. How he sustained such wound, remained unexplained. The testimony of PW-2 that 4-5 other persons were noticed running from the spot is erroneously ignored. Both PW-1 and PW-2 had admitted that there was darkness on the spot, therefore, even if the bulb was there, the injured could have not identified the assailants. How he sustained such wound, remained unexplained. The testimony of PW-2 that 4-5 other persons were noticed running from the spot is erroneously ignored. Both PW-1 and PW-2 had admitted that there was darkness on the spot, therefore, even if the bulb was there, the injured could have not identified the assailants. The testimony of PW-2 that he could not recognize the assailants is also not taken into consideration. The accused persons had no intention to kill PW-1 and PW-2, because it is they who had taken PW- 2 to the hospital, this aspect has also not been taken into consideration. The testimony of hostile witnesses was not taken into consideration to arrive at a conclusion that their testimony has rendered the prosecution case doubtful. The contradictions, improvements and omissions in the statements of witnesses is also erroneously ignored. It has, therefore, been urged that no case against the accused persons is made out and as such, they are entitled to be acquitted of the charge framed against each of them. Otherwise also, in the nature of the evidence produced by the prosecution, they are entitled to the benefit of doubt and resultantly acquittal. Both the appeals have been sought to be allowed and the accused persons to be acquitted of the charge framed against each of them. 12. Mrs. Vandana Kuthiala, learned defence counsel has strenuously contended that two able bodied persons (PW-1 and PW-2) could have not been beaten up by the accused persons, out of whom deceased accused Rattan Chand and his wife accused No.2 were old and aged, hence physically feeble and weak. The remaining accused No. 3 and 4 though were young persons, however, the injured were also young persons hence, could have not been beaten up by the said accused, that too, in the presence of their father PW-4, mother, brother Desh Raj and wife of PW-2 Prithi Chand, Kativa PW-8. One of the injured i.e. PW-2 has turned hostile to the prosecution. The own testimony of injured witnesses and also of PW-4, PW-6 and PW-8 amply demonstrate that injured Prithi Chand PW-2 found lying on road in an injured condition by the accused persons was shifted by them to the hospital. Had they noticed another injured PW-1 Shonki Ram also lying there, he would have also been shifted by them to the hospital. Had they noticed another injured PW-1 Shonki Ram also lying there, he would have also been shifted by them to the hospital. Such act and conduct of the accused persons, according to learned defence counsel is itself sufficient to conclude that they have been falsely implicated in this case. The recovery of clothes and knife allegedly recovered by the police is stated to be not proved at all. Above all, the clothes and knife were not sent to Seriologist for opinion. PW-4, PW-6 and PW-8 who admittedly were in their house at village Sarvnati and came to the spot on hearing alarm had no occasion to witness the occurrence because as per their testimony it took about 5 minutes for them to reach at the spot and that as per defence version, their house being situated at a distant place i.e. 700-800 meters from the place of occurrence at least 10-15 minutes time was required for them to reach at the place of occurrence. Therefore, according to learned defence counsel, the said witnesses are liar. It has also been pointed out from the evidence as has come on record by way of testimony of PW-2 that the injured witnesses themselves had no idea of the accused who had stabbed them with knife. The accused persons, as such, have been sought to be acquitted of the charge framed against each of them. 13. On the other hand, Mr. Pramod Thakur, learned Additional Advocate General while supporting the impugned judgment has argued that the evidence as has come on record by way of testimony of injured witnesses itself is sufficient to arrive at a conclusion that it is the accused alone who were the assailants and assaulted both the injured with such intention and knowledge to do away with them. The inconsistencies in the prosecution evidence pointed out by learned defence counsel are not of such a nature so as to render the prosecution case doubtful. Both the appeals, as such, have been sought to be dismissed. 14. The present is a case where the accused persons have been convicted for the commission of an offence punishable under Sections 342, 326 and 307 read with Section 34 of the Indian Penal Code. They, however, have been acquitted of the charge framed against each of them under Section 201 read with Section 34 of the Indian Penal Code. 14. The present is a case where the accused persons have been convicted for the commission of an offence punishable under Sections 342, 326 and 307 read with Section 34 of the Indian Penal Code. They, however, have been acquitted of the charge framed against each of them under Section 201 read with Section 34 of the Indian Penal Code. Learned trial Judge has recorded the findings of conviction against them on appreciation of the evidence oral as well as documentary. The accused persons have not opted to produce any evidence in their defence, however, their defence as emerges from the trend of cross-examination of the prosecution witnesses and in their statements recorded under Section 313 of the Code of Criminal Procedure is pure and simple that no doubt their exist litigation between them and the complainant, however, they never stabbed PW-1 and PW-2 nor administered beatings to them. As a matter of fact, accused No.1 Rattan Chand (since dead) came out of the house around 10.00 p.m. to answer the call of nature and found Prithi Chand (PW-2) lying in an injured condition out side. The said accused had informed other members (his co-accused) of his family. They arranged for a vehicle and shifted PW-2 to the hospital at Jawalamukhi and from Jawalamukhi to district hospital, Dharamshala. Accused Rattan Chand spent money from his pocket for purchasing medicines which were required to be administered to the said injured immediately. Accused No. 3 Babu Ram had even donated blood also which ultimately was transfused to injured Prithi Chand. They did so due to brotherhood and to save the life of said injured and for no other reason at all. A false case was thus stated to be engineered against them. 15. The accused persons, however, had admitted on going construction work of the complainant party on the Government land at Bage-Da-Moar and that they had also raised construction of their house on the Government land itself adjoining to the on going construction work of the house of the complainant. They also admit their enmity with the complainant party. However, according to them, the house of the complainant was in different village about one kilometer away from the place of occurrence. Rest of the prosecution case has either been denied being wrong or for want of knowledge. 16. They also admit their enmity with the complainant party. However, according to them, the house of the complainant was in different village about one kilometer away from the place of occurrence. Rest of the prosecution case has either been denied being wrong or for want of knowledge. 16. Before coming to the adjudication of the point in issue that the prosecution has been able to prove its case against the accused persons beyond all reasonable doubt or not, it is desirable to take note as to what constitute an offence punishable under Sections 307, 326, 342 read with Section 34 of the Indian Penal Code. 17. A bare perusal of Section 307 of the Indian Penal Code reveals that if an offender intentionally or knowing fully and under such circumstances that thereby he shall cause the death and would be held guilty of murder and does any act towards it can be said to have committed the offence under the section ibid. The essential ingredients of the commission of such offence, therefore, are that; the accused did some act with such intention or knowledge that same is sufficient to cause hurt/death of the victim and thereby would have held guilty for murder. Thus, an offence under Section 307 IPC is an attempt to murder. 18. Section 307 consists of three parts. First part lays stress on intention or knowledge and on circumstances. It applies even if no injury has been inflicted which is capable of causing death. Second part provides that when no hurt, lighter punishment is to be awarded but when hurt, enhanced punishment will be imposed. Third part gives a different set of circumstances. It is an offence committed by a person who is already a life convict and hurt is caused in consequence of the act of a life convict. 19. Additionally, the prosecution is also required to prove that the offender had intended that some result will happen from the act attributed to him. It is not necessary that injury he caused to the victims are sufficient in ordinary course to cause his death. The support in this regard can be drawn from the law laid down by the Apex Court in State of Maharashtra V. Balram Bama Patil and others, AIR 1983 S.C. 305 and in Matiullah Sheikh and others V. State of West Bengal AIR 1965 S.C. 132 . The support in this regard can be drawn from the law laid down by the Apex Court in State of Maharashtra V. Balram Bama Patil and others, AIR 1983 S.C. 305 and in Matiullah Sheikh and others V. State of West Bengal AIR 1965 S.C. 132 . The Hon’ble Apex Court in Om Prakash V. State of Punjab AIR 1961 S.C. 1782 has held that in order to constitute an offence i.e. attempt to murder, punishment under Section 307 IPC, the act towards the commission of murder need not to be a penultimate act, however, it is the knowledge, intention and circumstances under which such act is committed. 20. Now if coming to the offence punishable under Section 326 IPC, the essential ingredients are; (i) the accused has caused grievous hurt (ii) voluntarily (iii) by means of instrument of shooting, stabbing or cutting, instrument which if used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance etc. Therefore, in order to infer the commission of an offence punishable under Section 326 IPC, the hurt should have been caused voluntarily and must be grievous hurt caused by dangerous weapon or means. 21. The essential ingredients to infer commission of an offence punishable under Section 342 IPC are that the accused has wrongly confined the complainant and such restraint was to prevent the complainant from proceeding beyond certain circumscribed limits beyond which he has a right to proceed. 22. The charge with the aid of Section 34 IPC can only be framed if the members of accused are two or more and they had common intention and participation in the commission of offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted in such a situation as it involves vicarious liability, however, if participation of the accused in the commission of offence is proved but common intention is absent, Section 34 IPC cannot be invoked in that situation. It is trite that Section 34 IPC does not constitute a substantive offence and rather is in the nature of a rule of evidence. It is trite that Section 34 IPC does not constitute a substantive offence and rather is in the nature of a rule of evidence. The liability can only be fastened on an offender who may have not directly involved in the commission of an offence but on the basis of a pre-arranged and plan between him and his co-accused, who actually committed the offence. 23. Now if applying the above legal principles to the facts of this case and the evidence available on record, what to speak of any evidence, there is not even whisper also that the accused had meeting of minds and assaulted the victims of occurrence in a prearranged and planned manner. Also that, they had common intention to assault the victims of the occurrence and to achieve such object they all participated in the commission of offence in a manner they planned during meeting of minds. Therefore, the charge against either of the accused could have not been framed with the aid of Section 34 IPC nor accused i.e. at least Rattan Chand (since dead) and his wife Jamna Devi, accused No.2, against whom there are no allegations of stabbing could have not been charged with the commission of an offence punishable under Section 307 and 326 IPC. Any how, for want of evidence qua the meeting of minds and the common intention of the accused persons to assault the victims in a prearranged and planned manner, the charge against them could have been framed independent of Section 34 IPC for the substantive offence(s), they allegedly committed, of course, on the basis of evidence collected during the course of investigation. 24. It is well settled at this stage that charge against an offender can be framed only on the basis of suspicion also, therefore, in view of the investigation conducted and the police report, at the most, charge could have been framed against accused No. 1 and 2 for the commission of offence punishable under Section 342 IPC, whereas, against accused No. 3 and 4 under Section 307, 326 and 342 IPC. 25. Now comes the main controversy that the evidence available on record is sufficient to infer the commission of such offences by the accused persons or not. The answer to it would be in negative. 25. Now comes the main controversy that the evidence available on record is sufficient to infer the commission of such offences by the accused persons or not. The answer to it would be in negative. The prosecution case even if taken as it is, no case under Section 342 of the Indian Penal Code is made out against either of the accused persons because there are no allegations that they restrained injured PW-1 and PW- 2 from moving ahead in a particular direction and rather as per prosecution story, the accused persons started abusing injured witnesses around 9.30 p.m at a stage when they were going to sleep in the temporary shed constructed adjoining to the house of accused persons to keep watch of the on going construction work of their house. There is not even a whisper also that the accused persons had restrained the injured from proceeding beyond certain circumscribed limits and thereby restrained them wrongfully. The impugned judgment is silent because learned trial Judge has not recorded any finding as to how the evidence available on record has proved the prosecution case qua the commission of offence punishable under Section 342 IPC by the accused persons. Since this Court has ruled-out the possibility of application of Section 34 IPC in para supra, therefore, for want of evidence as to which of the accused restrained injured from proceeding beyond a particular point and thereby confined them wrongfully, the offence punishable under Section 342 IPC against either of the accused is also not established. The conviction of the accused persons for the commission of offence under Section 342 IPC is, therefore, not legally sustainable. 26. Now if coming to the commission of offence punishable under Sections 307 and 326 IPC by either of the accused persons, there is no iota of evidence suggesting that both injured were assaulted with knife Ext. P-1 by accused No.3 Babu Ram or accused No.4 Rajesh Kumar for the reason that while as per the testimony of PW-1 Shonki Ram, knife blow in his back and in the stomach of injured PW-2 Prithi Chand were inflicted by accused No.3 Babu Ram, PW-2 Prithi Chand has expressed his inability to tell as to who had inflicted the blow of knife in the back of PW-1 Shonki Ram. As per his further version, when he came to the rescue of his brother PW-1, he was also beaten up by the accused persons and one of them inflicted blow of knife on his stomach. The said accused, as per his version, was either Babu Ram or Rajesh Kumar because there being darkness, he could not identify the assailant. He was declared hostile and cross-examined by learned Public Prosecutor on behalf of the prosecution. As per his version knife blow in the back of PW-1 was inflicted by accused No.3 Babu Ram and when he tried to save his brother, it is the same accused who inflicted knife blow in his stomach. When further cross-examined by learned defence counsel, the suggestion that due to darkness, he could not see as to who inflicted injuries on the person of Shonki Ram and also on his person has been admitted by him being correct. Though in the same breath, it was stated that one bulb was on the wall of the house of accused Rattan Chand. In the same breath, he has further stated that he has made the statement qua causing injury with knife in the back of PW-1 and on his stomach by accused Babu Ram on the basis of his statement recorded by the police. As per his further version, he had not seen the knife in the hand of either of the accused persons. The testimony of the injured witness PW-2, as such, has caused a major dent in the prosecution story and it cannot be said beyond all reasonable doubt that blows with knife were inflicted in the back of PW-1 Shonki Ram and on the stomach of PW-2 by accused Babu Ram and none else. Interestingly enough, as per further version of PW-2, 4-5 persons were present there who ran away from the spot when they received injuries. The suggestion to this effect was given by learned defence counsel has been admitted as correct by him. 27. Admittedly, the complainant and accused party were inimical to each other. Even as per testimony of PW-1 his family had litigation with other villagers also, hence inimical to them. The suggestion to this effect was given by learned defence counsel has been admitted as correct by him. 27. Admittedly, the complainant and accused party were inimical to each other. Even as per testimony of PW-1 his family had litigation with other villagers also, hence inimical to them. Therefore, such statement assumes considerable significance, that too, when as per admission on the part of PW-2 in his crossexamination that 4-5 other persons present there had fled away from the place of occurrence after they both (PW-1 and PW-2) received injuries on their person. The possibility of the said persons having inflicted injuries on their person cannot be ruled-out because PW-2 has not seen knife in the hands of either of the accused persons and even as per his own admission, had he been not shifted by Accused No. 3 and accused No.4 to the hospital, there was danger to his life. Had the injured been beaten up by accused persons or assaulted with knife by accused No.3 or accused No.4, it would not have been expected from them to have reacted so promptly as they did by shifting PW-2 to the hospital in a vehicle hired due to their anguish against the injured. 28. The defence version that accused Rattan Chand came out of his house around 10.00 p.m. to answer the call of nature and noticed PW-2 lying on the road in an injured condition and apprised other members of his family in this regard i.e. accused No.3 and accused No.4 to shift him to hospital seems to be nearer to the factual position. The recovery of knife Ext. P-1 at the instance of accused No.4 Rajesh Kumar has not been proved beyond all reasonable doubt as disclosure statement of the said accused in this regard was not at all recorded. The other witness to recovery memo Ext. PW-7/A Hari Mitter has not supported the prosecution case in this regard at all and was declared hostile. In his cross-examination, it is denied that knife Ext. P-1 was produced by accused Rajesh in his presence. The recovery of clothes of the injured PW-1 and PW-2 in the presence of PW-5 Amar Singh is hardly of any help to the prosecution case, because it is no-body’s case that injured PW-1 and PW-2 had not suffered injuries, therefore, it is obvious that their clothes were blood stained. P-1 was produced by accused Rajesh in his presence. The recovery of clothes of the injured PW-1 and PW-2 in the presence of PW-5 Amar Singh is hardly of any help to the prosecution case, because it is no-body’s case that injured PW-1 and PW-2 had not suffered injuries, therefore, it is obvious that their clothes were blood stained. The complainant and his another son Desh Raj, PW-6, daughter-in-law Kavita, PW-8 though have supported the prosecution case qua on hearing alarm of injured witnesses in their house, they rushed to the spot and noticed all the accused administering beatings to both the injured. As per testimony of PW-4 Prem Chand, knife blow was given to PW-2 Prithi Chand by accused No.3 Babu Ram. Similar is the version of PW-6 Desh Raj. To the contrary, as per testimony of PW-8, knife blow to her husband Prithi Chand (PW-2) was inflicted by accused Rajesh. None of them has said as to who had inflicted knife blow in the back of PW-1 Shonki Ram. As noticed supra, PW-8 Kavita has made contrary statement as according to her, knife blow was inflicted to her husband by accused Rajesh Kumar. Their presence on the spot is highly doubtful for the reason that as per admission on the part of PW-2 Prithi Chand and PW-6 Desh Raj, their old house from where they came to the place of occurrence is situated at a distance of 700-800 meters. It was not possible for them to have reached in five minutes after hearing alarm, that too, when they started from the house after hearing the alarm ‘Bachao’ ‘Bachao’. Meaning thereby that when they heard the alarm, the occurrence had already taken place and to reach at the place of occurrence from a place 700-800 meters away therefrom, at least 10- 15 minutes were required to reach there. True it is that from the testimony of PW-1, distance of their house from the place of occurrence is 250-300 meters, whereas, PW- 4 though denied that such distance is 700-800 meters, however, failed to tell as to what was the exact distance, if it was not 700-800 meters. In such a scenario, the plea of the accused that such distance was 700-800 meters seems to be nearer to the factual position. In such a scenario, the plea of the accused that such distance was 700-800 meters seems to be nearer to the factual position. Therefore, PWs 4, 6 and 8 are liar and being the members of family of injured as their father, brother and wife of one of the injured Prithi Chand were interested in the success of the prosecution case and as such, deposed falsely. 29. The medical evidence as has come on record by way of testimony of PW-7 Dr. Puneet Mahajan though is suggestive of that injuries on the person of PW-1 and PW-2 were dangerous to life, however, on the basis of such evidence, it cannot be said that it is accused alone who had inflicted such injuries on their person. On the other hand, in the opinion of PW-7, such injuries are even possible with a broken bottle also. When as per the prosecution case itself, the knife was not seen in the hand of either of the accused persons and 4-5 other persons ran away from the spot, the injured having sustained injuries in an occurrence some what different and not on account of stab injuries allegedly inflicted by the accused persons, cannot be ruled-out. 30. The remaining prosecution witnesses are formal in nature, who in one way or the other remained associated with the investigation of the case. On the other hand, explanation as set-forth by the accused persons in their statement recorded under Section 313 of the Code of Criminal Procedure seems to be plausible because enmity is a double edged weapon and the possibility of the accused persons having been falsely implicated by the police at the instance of complainant party, cannot be ruled-out. 31. Having regard to the given facts and circumstances of this case and re-appraisal of the evidence available on record, this Court is of the considered opinion that the prosecution has miserably failed to make out a case for the commission of an offence punishable under Section 307 and 326 IPC also. As a matter of fact, the present is a case where the prosecution has failed to prove its case beyond all reasonable doubt. Learned trial Judge has failed to appreciate the evidence available on record in its right perspective and rather seems to have swayed away only due to the stab injuries, which were inflicted on the person of both injured. Learned trial Judge has failed to appreciate the evidence available on record in its right perspective and rather seems to have swayed away only due to the stab injuries, which were inflicted on the person of both injured. The prosecution has, therefore, miserably failed to bring guilt home to the accused persons. Since accused Rattan Chand has already expired, therefore, remaining accused Jamna Devi, Babu Ram and Rajesh Kumar are acquitted of the charge framed against each of them under Sections 342, 307 and 326 read with Section 34 of the Indian Penal Code. 32. In view of the foregoing reasons, both the appeals succeed and the same are accordingly allowed. Consequently, the impugned judgment is quashed and set aside and the accused persons namely, Jamna Devi, Babu Ram and Rajesh Kumar are acquitted of the charge framed against each of them under Sections 342, 307 and 326 read with Section 34 of the Indian Penal Code. The personal bonds furnished by all the accused persons shall stand cancelled and the sureties discharged.