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2018 DIGILAW 371 (RAJ)

State of Rajasthan v. Shanker Lal

2018-01-31

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT : Sangeet Lodha, J. 1. This appeal is directed against judgment dated 30.11.90 passed by learned Sessions Judge, Sirohi, whereby the respondents accused Shanker Lal and Tara Ram have been convicted and sentenced as under:- Shanker Lal U/s. 323 IPC : (For causing injuries to deceased Bhanwar Singh) Imprisonment for the period already undergone in the custody and fine Rs. 1,000/- and in default in payment of fine to further suffer three months rigorous imprisonment. U/s 323 IPC :( For causing injuries to Jasoda) Fine Rs. 500/- and in default in payment of fine to suffer rigorous imprisonment for two months. Tara Ram: U/s. 323 IPC : (For causing injuries to deceased Bhanwar Singh) Imprisonment for the period already undergone in the custody and fine Rs. 1,000/- and in default in payment of fine to further suffer three months rigorous imprisonment. All the three accused Shanker Lal, Tara Ram and Gawari have been acquitted of the charge under Section 302 IPC. 2. In nutshell the prosecution case is that on 30.5.89 at 10.45 P.M., on the oral information given by one Shri Raju, Rikshawala, at Police Station, Pindwara about the serious case of beating, Shri Fateh Singh (PW 20), SHO, Police Station, Pindwara and other police personnel reached at Government Hospital, Pindwara and inquired about the incident from Jasoda (PW 7), the sister of deceased Bhanwar Singh. Thereupon, Smt. Jasoda revealed that deceased Bhanwar Singh and accused Shanker Lal are neighbours; they were having acrimonious relationship inasmuch as, Shanker Lal had opened a gate in the gali in the back of their houses. On 30.5.89 at 7 A.M. while Bhanwar Singh was sleeping in the gali, accused Gawari, the wife of accused Shanker Lal had threw urine over him and for this reason, they had altercations. As per Jasoda (PW 7), on the fateful day at 10 P.M. when the deceased Bhanwar Singh from his shop reached in front of his house on bicycle, Shanker Lal, his wife Gawari and Tara Ram started abusing him. Hearing the ruckus, Bhanwar Singh (PW 2), Karan Singh (PW 3), Hari Singh (PW 5) and Sunder (PW 8), niece of Jasoda (PW 7), rushed to the place of occurrence. Hearing the ruckus, Bhanwar Singh (PW 2), Karan Singh (PW 3), Hari Singh (PW 5) and Sunder (PW 8), niece of Jasoda (PW 7), rushed to the place of occurrence. The accused Shanker Lal gave a lathi blow on the head of Bhanwar Singh (deceased); he fell, thereafter, Gawari hurled a big stone on the neck of Bhanwar Singh and accused Tara Ram stifled his neck with both the hands and when Jasoda (PW 7) attempted to rescue him, accused Shanker Lal gave lathi blow on her both the hands, then Bhanwar Singh (PW 2), Karan Singh (PW 3), Hari Singh (PW 5), Sunder (PW 8) intervened and separated the accused persons. Bhanwar Singh (deceased) fell unconscious who was taken to the hospital in Rikshaw of Raju, the moment they reached the hospital, Bhanwar Singh died. 3. It is need to be noticed that in the intervening night of 30.5.89 and 31.5.89 when the SHO Fateh Singh reached the hospital, accused Gawari was also present there, who on inquiry being made, stated that on the fateful day at 6 A.M. a few drops of water thrown by her daughter fell on Bhanwar Singh (deceased), which resulted in some altercations between Bhanwar Singh (deceased) and her husband Shanker Lal. In the night at about 9.30 P.M. when she and her husband after taking their meal were sleeping in the chowk of their house, Bhanwar Singh hurled a piece of brick into their house which hit the forehead of her husband Shanker Lal. When they came out of their house, they saw Bhanwar Singh (deceased) and Jasoda standing in front of their house. Bhanwar Singh inflicted an injury on her neck by brick and two injuries on her hips. At that juncture, Tara Ram, the brother of Shanker Lal also reached there and there was quarrel between Shanker Lal, Tara Ram and Bhanwar Singh. Hearing the hue and cry, Kesaram Kumhar and Maulvi Sahab came to their rescue. On the basis of the statement of Smt. Gawari as aforesaid, the police registered an FIR (Ex. D/8) on 31.5.89 at 1.45 A.M. for offence under Section 336 IPC. After investigation, the police found that Bhanwar Singh caused injuries to Gawari and Shanker Lal, the respondents accused herein, but since Bhanwar Singh had died, the police filed the final report. 4. D/8) on 31.5.89 at 1.45 A.M. for offence under Section 336 IPC. After investigation, the police found that Bhanwar Singh caused injuries to Gawari and Shanker Lal, the respondents accused herein, but since Bhanwar Singh had died, the police filed the final report. 4. On the basis of the statement of Jasoda as aforesaid, the police registered the FIR against the accused persons Shanker Lal, Tara Ram and Smt. Gawari for offence under Section 302 IPC and the investigation commenced. 5. During the investigation, the police drawn necessary memos. After inquest proceedings, the dead body was subjected to autopsy, and the statements of witnesses were recorded under Section 161 Cr.P.C., 1973 The accused respondents were arrested and at the instance of accused Shanker Lal, blood stained lathi was recovered. The blood stained cloths of the deceased Bhanwar Singh, soil and lathi were sent for examination to the Forensic Science Laboratory and the FSL report (Ex. P/17) was taken on record. 6. On completion of the investigation, a charge sheet for offences under sections 302, 323/34 IPC was filed against the accused persons before the Chief Judicial Magistrate, Sirohi, which was committed to the Session Judge, Sirohi for trial. The learned trial Judge framed the charges against the accused Shanker Lal for offences under Sections 302, 323 IPC and against the accused Tara Ram and Gawari for offence under Section 302 IPC. The accused denied the charges and claimed trial. 7. The prosecution in support of its case produced as many as 20 witnesses (PW 1 to PW 20) and produced documentary evidence Ex. P/1 to Ex. P/24. The statements of the accused persons were recorded under section 313 Cr.P.C., 1973 wherein they denied that they caused injuries to the deceased Bhanwar Singh and Jasoda (PW 7). Accused Shanker Lal denied that at his instance, blood stained lathi was recovered by the police. The accused Shanker Lal and Gawari stated that on the fateful day in the night when they were sleeping in the chowk of their house, bricks and stones were hurled in their house, after opening the door they came outside and saw deceased Bhanwar Singh, Jasoda, Jethi, Shakuntala and Sunder standing in front of their house; they started abusing them and when deceased Bhanwar Singh was requested to do so, he caused injury on his head by brick. Jasoda hurled brick on knee of Shanker Lal. Jasoda hurled brick on knee of Shanker Lal. Thereafter, when he fell, all the four ladies dragged near the Maulana's cot, gave beating and torn his cloths. In the meantime, Bhanwar Singh brought lathi from his house and gave blow on the back of Shanker Lal. When Bhanwar Singh was about to give yet another blow of lathi on the head of Shanker Lal, Shanker Lal catch hold of the lathi and pushed Bhanwar Singh, who fell on the iron cot and thereafter, on a big stone lying on the ground. Hearing the hue and cry, Gawari came out of the house then Jethi gave one or two lathi blow on the head of Gawari and Jasoda hurled stone on arm of Gawari. The accused Tara Ram came at the place of occurrence after the quarrel was over. 8. The learned trial Court after considering the evidence available on record and the submissions made by the parties, did found charge for the offence under Section 302 IPC proved against the accused respondents and accordingly, they were acquitted of the charge for offence under Section 302. However, the accused Shanker Lal and Tara Ram were convicted for offence under Section 323 IPC and sentenced as indicated above. Hence, this appeal against the acquittal of the accused respondents for offence under Section 302 IPC, by the State. 9. Heard learned Public Prosecutor, the counsel appearing on behalf of the complainant and the counsel appearing for the accused respondents. 10. Learned Public Prosecutor contended that the learned trial Judge has seriously erred in acquitting the accused persons for the offence under section 302 IPC. Drawing the attention of the court to the statements of Jasoda (PW 7), Bhanwar Singh (PW 2), Karan Singh (PW 3), Hari Singh (PW 5) and Sunder (PW 6), learned Public Prosecutor submitted that the charge against the accused stands proved by the testimony of eye witnesses. Learned Public Prosecutor would submit that the factum of acrimonious relationship between accused Shanker Lal and Bhanwar Singh is even disputed and thus, the motive to cause death also stands proved. Learned Public Prosecutor would submit that the factum of acrimonious relationship between accused Shanker Lal and Bhanwar Singh is even disputed and thus, the motive to cause death also stands proved. It is submitted that ignoring the injuries caused by the accused Shanker Lal and others on the vital part of the person of the deceased Bhanwar Singh, which as per the medical evidence were sufficient to cause death in the ordinary course of nature, learned trial Judge has seriously erred in arriving at the conclusion that the accused had no intention to cause death. Learned Public Prosecutor would submit that as a matter of fact, learned trial Judge has recorded the finding based on the statement of accused respondents under Section 313 Cr.P.C., 1973 and statement of defence witness Chhote Lal (DW 1). 11. On the other hand, learned counsel appearing for the accused respondents submitted that it was even the case of the prosecution that the accused respondents with pre determination, assaulted Bhanwar Singh with an intention to cause death. Drawing the attention of the court to the charge framed, learned counsel submitted that each of the accused persons has been charged for offence under Section 302 IPC and for the offences under Section 302/34 IPC. Learned counsel submitted that the deposition of Jasoda (PW 7) and other eye witnesses suffers from contradictions and embellishment on the material point as noticed by the learned trial Judge. Learned counsel submitted that as a matter of fact, the quarrel started on account of Bhanwar Singh hurling bricks and stones in the house of accused Shanker Lal. Further, it is matter of record that accused persons have also suffered injuries which has been explained by the prosecution. Learned counsel submitted that as per prosecution number of persons including eye witnesses Bhanwar Singh (PW 2), Karan Singh (PW 3) and Hari Singh (PW 5) were present at the time when the accused persons were beating the deceased Bhanwar Singh but none of the persons present came to his rescue which is against the human conduct. Learned counsel submitted that the deposition of Smt. Jasoda (PW 7) before the court is apparently in contradiction with her stand in FIR (Ex.P 4) on material points including with regard to role played by Shanker Lal and Gawari in inflicting injuries on the person of the deceased Bhanwar Singh. Learned counsel submitted that the deposition of Smt. Jasoda (PW 7) before the court is apparently in contradiction with her stand in FIR (Ex.P 4) on material points including with regard to role played by Shanker Lal and Gawari in inflicting injuries on the person of the deceased Bhanwar Singh. Drawing the attention of the Court to FIR (Ex.P 4), learned counsel submitted that before the police Jasoda (PW 7) had taken the stand that accused Shanker Lal inflicted only one Lathi blow on the head of deceased Bhanwar Singh whereas before the court she has deposed that Shanker Lal inflicted 4-5 Lathi blows on deceased Bhanwar Singh. In the FIR lodged, Jasoda (PW 7) had taken the stand that when Tara Ram was stifling the throat of deceased Bhanwar Singh, she intervened and at that time Shanker Lal gave Lathi blow on her both the hands, whereas in her deposition before the court she has stated that while Shanker Lal was inflicting Lathi blows on the deceased Bhanwar Singh, she intervened and at that time, she suffered injuries on her both hands. Jasoda (PW 7) has deposed that Bhanwar Singh (PW 2), Karan Singh (PW 3), Julle Khan Bano (PW 4) were present at the time of occurrence of the incident whereas Jullekhan Bano in her deposition had stated that when she reached the place of occurrence, Bhanwar Singh was lying on the ground unconscious, had suffered injuries on the head and blood was oozing out therefrom and thus, the deposition of Jasoda (PW 7) regarding the presence of Jullehhan Bano (PW 4) at the time when Shanker Lal inflicted injuries on the head of the deceased cannot be accepted as correct and in these circumstances, the presence of Jasoda (PW 7) at the time of Shanker Lal beating the deceased Bhanwar Singh also becomes suspicious, which further stands fortified from the deposition of Bhanwar Singh (PW 2), who has stated that Jasoda (PW 7) had reached the place of occurrence after Tara Ram stifled the throat of deceased Bhanwar Singh. Similarly, Hari Singh (PW 5) has also stated that after deceased Bhanwar Singh falling down on the ground Jasoda reached at the place of occurrence. Similarly, Hari Singh (PW 5) has also stated that after deceased Bhanwar Singh falling down on the ground Jasoda reached at the place of occurrence. Pointing out the various contradictions in the deposition of various eye witnesses, learned counsel submitted that their statements suffer from self contradictions and they apparently contradict each other as well, which makes entire prosecution story suspicious. Learned counsel submitted that a perusal of the statements of the eye witnesses reveal that prosecution has concealed the genesis of the incident. Learned counsel submitted that as a matter of fact deceased Bhanwar Singh was the aggressor, which stands fortified from the fact that the injuries suffered by the accused Shanker Lal and Gawari have been explained by the prosecution. Learned counsel submitted that if Shanker Lal was aggressor and on his inflicting Lathi blow on the head of the deceased Bhanwar Singh, he fell on the ground, then how he could have inflicted injuries on the persons of accused Shanker Lal and Gawari whereas the police after investigation on the FIR lodged by accused Gawari has arrived at the conclusion that deceased Bhanwar Singh inflicted injuries on the person of Shanker Lal and Gawari. Learned counsel submitted that according to the prosecution besides the eye witnesses number of persons were present there but nobody came to rescue of deceased Bhanwar Singh and they remained silent spectators, which is against the human nature. Learned counsel submitted that after examination of the medical evidence including deposition of Dr. Rikhab Lunkar (PW 1) and Dr. Chautha Ram (PW 9), the learned trial Judge has rightly arrived at conclusion that Bhanwar Singh has died on account of shock generated by head injuries which might have been caused on account of deceased Bhanwar Singh falling on the iron cot and thereafter on the stone lying on the ground. Learned counsel submitted that after examination of entire evidence on record, the learned trial Judge has rightly arrived at the conclusion that Shanker Lal had no intention whatsoever to cause death of Bhanwar Singh. Drawing the attention of the Court to the FSL Report (Ex. Learned counsel submitted that after examination of entire evidence on record, the learned trial Judge has rightly arrived at the conclusion that Shanker Lal had no intention whatsoever to cause death of Bhanwar Singh. Drawing the attention of the Court to the FSL Report (Ex. P/17), learned counsel submitted that blood stained Lathi alleged to have been recovered at the instance of accused Shanker Lal, no blood stains could be determined and thus, for this reason also, it cannot be said that Shanker Lal inflicted injuries on the head of the deceased by Lathi blows. Learned counsel submitted that after examination of medical evidence and deposition of eye witnesses, the learned trial Judge has rightly found that Gawari inflicting injury on the person of the deceased by hurling a big stone of 2-5 kg is proved beyond reasonable doubt. Learned counsel submitted that number of persons who were examined by the police under Section 161 Cr.P.C., 1973 who were related to the deceased Bhanwar Singh, were produced for examination before the court. Learned counsel submitted that the presence of witness Chhote Lal (DW 1) during the incident occurred is in dispute and thus, there is no reason as to why his testimony should be believed. 12. Replying the arguments of learned counsel appearing for the accused-respondents, learned Public Prosecutor submitted that the factum of Shanker Lal causing head injury to the deceased stands proved by deposition of Bhanwar Singh (PW 2), Karan Singh (PW 3) Hari Singh (PW 5) and Jasoda (PW 7). Learned Public Prosecutor submitted that no prejudice has been caused to the accused persons on account of non inclusion of Section 34 IPC by the trial court while framing the charge against the accused persons for offence under Section 302 IPC and thus, if the common intention on the part of accused respondents to cause death of Bhanwar Singh is proved, they could be convicted for offences under Sections 302/34 IPC. Learned Public Prosecutor would submit that on the facts and in the circumstances of the case, it cannot be said that the accused persons had no intention to cause death of deceased Bhanwar Singh or to cause such bodily injuries which may result in death in the ordinary course of nature. Learned Public Prosecutor would submit that on the facts and in the circumstances of the case, it cannot be said that the accused persons had no intention to cause death of deceased Bhanwar Singh or to cause such bodily injuries which may result in death in the ordinary course of nature. In the alternative, the learned Public Prosecutor submitted that even if the offences under sections 302, 302/34 IPC is made out then too, on the basis of the evidence on record, the accused persons were liable to be convicted under section 304 -I or 304-II IPC. 13. We have given our thoughtful consideration to the rival submissions and scanned the evidence on record thoroughly. 14. The Medical Board consisting of two members namely; Dr. Rikhab Lunkar (PW 1) and Dr. Chautha Ram (PW 9) conducted autopsy over the dead body of Bhanwar Singh. As per the Post Mortem Report (Ex.P/1) and deposition of Dr. Rikhab Lunkar (PW 1) and Dr. Chautha Ram (PW 9) before the learned trial Judge following ante mortem injuries were found on the body of the deceased Bhanwar Singh:- "Wounds 1. Lacerated wound 4 cm x cm x bone-deep at occipital bone on right side. Bruises 1. Contusion 3 cm x 3 cm on left temporal region 2. Contusion 3.5 cm x 3 cm on chin 3. Contusion 5 cm x 4 cm on front of neck (tracheal region) Abrasions 2. Nail marks Abrasion on the front of the neck four to five in numbers. Marks of ligature on neck, dissection etc. On dissection of neck there is huge haematoma on front of trachea and trachea & larynx are severely congested." The cause of death is opined to be Asphyxia due to throttling at the site of trachea and shock due to fracture of skull bones and head injury due to blunt object. Since the definite cause of death was specified by the Medical Board, the police vide requisition dated 2.7.89 (Ex.P/2) sought definite opinion of the Medical Officers. Thereupon, the members of the Medical Board clarified that both the injuries were found to be caused at the same time and therefore, cause of death is also opined to be both the injuries inasmuch as it is possible to give opinion as to which one of two injuries caused first is the cause of death. Thereupon, the members of the Medical Board clarified that both the injuries were found to be caused at the same time and therefore, cause of death is also opined to be both the injuries inasmuch as it is possible to give opinion as to which one of two injuries caused first is the cause of death. In any case, looking to the nature of injuries and cause of death of Shri Bhanwar Singh, his death is concededly homicidal in nature. 15. At this stage, it would be appropriate to consider the statements of Dr. Rikhab Lunkar (PW 1) and Dr. Chautha Ram (PW 9) to ascertain the nature and cause of the injuries. As per deposition of Dr. Rikhab Lunkar (PW 1), there was presence of hematoma on the throat (front of trachea) and blood was oozing out from head and mouth of the deceased. On dissection of the throat blood congestion was found in the Tracheae and Larynx were also found congested. On dissection of the head, the occipital bone was found fractured. He deposed that as per opinion of the Medical Board cause of death was Asphyxia due to throttling and shock generated on account of fracture caused by head injury. As per his deposition, the injury on head and chin is possible to be caused by Lathi or stone but injury on the neck could have been caused by Lathi or stone. He opined that both the injuries on the head were sufficient in ordinary course of nature to cause death and injury caused on account of throttling was also sufficient to cause death. On being suggested in the cross-examination, he stated that both the injuries on the head were possible to be caused by a single blow but the injuries on the head and chin were possible to be caused on falling down. He categorically deposed that there was no marks of fingers or thumb on the neck but 4-5 nail marks were there on the neck. There was no fracture of bone of windpipe, no change of colour of the tongue and there was no prolapse of eye balls as a result of throttling. No blood was oozing out from nose and ear either. There was no fracture of bone of windpipe, no change of colour of the tongue and there was no prolapse of eye balls as a result of throttling. No blood was oozing out from nose and ear either. He further deposed that windpipe was damaged, there was no swelling on the windpipe (Tracheae) and the vocal cords (Larynx) were also damaged and therefore, it is possible that on account of fracture of skull bone, the blood might have accumulated in the windpipe through mouth. He further deposed that on account of throttling the person will die instantaneously whereas death on account of head injury takes time. Dr. Chautha Ram (PW 9) in his deposition before the Court, has supported the statement made by Dr. Rikhab Lunkar (PW 1). Both the doctors have opined that the windpipe was damaged, there was no change in the colour of tongue and there was no prolapse of eye balls on account of throttling. Further, they concurrently opined that it is possible that on account of head injury the blood might have been accumulated in the windpipe through mouth. Dr. Rikhab Lunkar (PW 1) clearly opined that on account of throttling a person will die instantaneously but death on account of head injury will take some time. It is noticed that Bhanwar Singh did die instantaneously rather he died after reaching the hospital and therefore, the conclusion arrived at by the trial Judge that death was caused on account of shock generated due to head injuries and on account of throttling appears to be just and proper. 16. This takes us to consider the deposition of the eye witnesses whose testimony is heavily relied upon by the prosecution. 17. Smt. Jasoda (PW 7), the sister of deceased Bhanwar Singh, on the basis of whose statement (Ex.P/4), the police registered the FIR, has deposed that on the fateful day she was sleeping inside her house, however, hearing the ruckus, she woke up and saw that all the three accused while abusing her brother deceased Bhanwar Singh, started beating him. At that time, Bhanwar Singh (PW 2) son of Dharam Singh, Hari Singh (PW 5), Karan Singh (PW 3) and Julekhan Banu (PW 4) had also reached there. Accused Shanker Lal inflicted lathi blow in the back of the head of deceased Bhanwar Singh, consequently, he fell on the ground. At that time, Bhanwar Singh (PW 2) son of Dharam Singh, Hari Singh (PW 5), Karan Singh (PW 3) and Julekhan Banu (PW 4) had also reached there. Accused Shanker Lal inflicted lathi blow in the back of the head of deceased Bhanwar Singh, consequently, he fell on the ground. Accused Gawari hurled a stone on the neck of deceased Bhanwar Singh. Thereafter, accused Tara Ram stifled throat of deceased Bhanwar Singh by both the hands. When she intervened, accused Shanker Lal inflicted injury on her both the hands by lathi blow. In the examination-in-chief, she stated in unequivocal terms that her brother Bhanwar Singh fainted as soon as he fell on the ground. He was taken to the hospital by her and her niece in the auto rickshaw of Raju driven by Kalu Singh (PW 15). She further deposed that moment they reached hospital, Bhanwar Singh died. In the cross examination, contrary to what she stated in her statement before the police (Ex.P/4) and her deposition before the court in examination-in-chief, she stated that she woke up hearing the shouting by her brother 'bachao bachao' and when she came out, she saw her brother lying on the ground, however, at the same time, she stated that till that time, her brother had fallen on the ground rather, beating was going on. She stated that accused Shanker, Gawari and Tariya (Tararam) were beating while her brother was still on his legs. Then she said that Gawari did give any blow till her brother was on his legs. She further stated that when she came out of the house through verandah, except her brother, Shanker, Gawari and Tariya (Tararam) nobody else was there. As against her statement in examination-in-chief and in the statement before the police (Ex.P/4), that Shanker had given a single blow on the back of the head of deceased Bhanwar Singh, in cross examination, she deposed that accused Shanker had given 4-5 lathi blows to her brother, which even stands belied by the medical evidence on record, discussed hereinabove. She stated that Tara Ram did sit on the ground while stifling throat of her brother rather, he stifled his throat in the bent over position. She stated that Tara Ram did sit on the ground while stifling throat of her brother rather, he stifled his throat in the bent over position. Further, contrary to her deposition in the examination-in-chief as also in the statement before the police (Ex.P/4) that she intervened at the stage when Tara Ram was stifling throat of the deceased Bhanwar Singh, in the cross-examination she stated that she intervened when the lathi blow was inflicted on the person of her brother and she suffered injuries on the hands. She further stated that even after injuries being suffered by her, Shanker Lal inflicted two lathi blows on the person of her brother. On being contradicted with her statement before the police (Ex.P/4), she deposed that the factum of Shanker Lal inflicting 4-5 lathi blows and Gawari had hurled 2-3 stones on the person of her deceased brother was revealed by her to the police but, she does know why the police has recorded the same. She further deposed that she had stated before the police that she suffered injuries when she intervened while Shanker Lal was inflicting lathi blows on the person of her brother Bhanwar Singh but the police has recorded that she suffered the injuries while intervening at the time when Tara Ram was stifling throat of deceased Bhanwar Singh, which is correct. 18. It is pertinent to note that the statement of Jasoda (PW 7) suffers from self contradictions and the same is found contrary to her statement before the police (Ex.P/4) recorded just after the incident. At this stage, it needs to be noticed that as per Bhanwar Singh (PW 2), Jasoda reached the place of occurrence after Tara Ram stifling throat of the deceased Bhanwar Singh. Similarly, Hari Singh (PW 5) has deposed that Jasoda (PW 7) reached the place of occurrence after deceased Bhanwar Singh fell on the ground. Thus, in the considered opinion of this court, the apparent contradictions and exaggeration on material points in deposition of Jasoda (PW 7) and the deposition of other witnesses regarding the timing of her appearance at the place of occurrence discussed hereinabove, creates doubt about her presence during the occurrence of the incident as projected. 19. Thus, in the considered opinion of this court, the apparent contradictions and exaggeration on material points in deposition of Jasoda (PW 7) and the deposition of other witnesses regarding the timing of her appearance at the place of occurrence discussed hereinabove, creates doubt about her presence during the occurrence of the incident as projected. 19. Bhanwar Singh (PW 2) has deposed that on the date of occurrence, at about 9.45 P.M. he and Hari Singh while coming from the market reached near the houses of accused Shanker Lal and deceased Bhanwar Singh, they saw that Shanker Lal armed with the lathi was abusing deceased Bhanwar Singh. Deceased Bhanwar Singh and Shanker Lal were standing facing each other. Shanker Lal inflicted a lathi blow on the back of the head of Bhanwar Singh, he fell and fainted. Thereafter, Gawari hurled a stone on the mouth and forehead ^^eqag o yykV** of deceased Bhanwar Singh and Tara Ram stifled his throat by both the hands. When Jasoda (PW 7), sister of deceased Bhanwar Singh, came to his rescue, Shanker Lal inflicted lathi blow on her both the hands. He stated that at the time of occurrence, 10-15 persons were standing nearby but none of them intervened. In the cross examination, he deposed that he did make any attempt to snatch the lathi from accused Shanker Lal and stone from accused Gawari and they had intervened only after Gawari hurling the stone on the person of deceased Bhanwar Singh. As noticed above, in the examination-in-chief Bhanwar Singh (PW 2) deposed that when he and Hari Singh (PW 5) reached the place of occurrence, they saw accused Shanker Lal armed with lathi whereas in the cross examination, he has deposed that after their reaching at the place of occurrence, accused Shanker Lal had brought lathi from his house. He further deposed that mother and wife of deceased Bhanwar Singh had reached the place of occurrence after lathi blow being given to deceased Bhanwar Singh and after their reaching to the place of occurrence, the stone was hurled on the person of Bhanwar Singh and throat was stifled. Bhanwar Singh (PW 2) has further deposed that at the time of occurrence, Maulana was standing outside his house but he did come to rescue of the deceased. According to him, Chhote Lal (DW 1) and Ramlal were also present at the place of occurrence. Bhanwar Singh (PW 2) has further deposed that at the time of occurrence, Maulana was standing outside his house but he did come to rescue of the deceased. According to him, Chhote Lal (DW 1) and Ramlal were also present at the place of occurrence. He deposed that he had left the place of occurrence within two minutes of Tara Ram stifling the throat of deceased Bhanwar Singh. In the considered opinion of this court, the conduct of the witness Bhanwar Singh (PW 2), who is admittedly relative of deceased Bhanwar Singh, his brother Jamat Singh being brother-in-law of deceased Bhanwar Singh, in remaining silent spectator and intervening while the deceased Bhanwar Singh was being beaten by the accused person and further leaving the deceased Bhanwar Singh in the injured state at the place of occurrence and immediately taking him to the hospital is absolutely unnatural and makes his presence suspicious. 20. Hari Singh (PW 5) has deposed that when they reached near the house of deceased Bhanwar Singh, the quarrel between Shanker Lal and deceased Bhanwar Singh was going on. As per his deposition, Jasoda (PW 7), sister of deceased Bhanwar Singh, reached the place of occurrence after Bhanwar Singh suffered the lathi blow on his head and fell on the ground. He has further deposed that Julekhan Banu reached the place of occurrence after 2-4 minutes while the beating was going on but till that time none of the family members of Bhanwar Singh was there. Thus, as per deposition of Bhanwar Singh (PW 2) and Hari Singh (PW 5), Jasoda (PW 7) could have seen Shanker Lal inflicting lathi blow on the back of head of the deceased Bhanwar Singh. 21. Karan Singh (PW 3) has deposed that when he reached near the house of deceased Bhanwar Singh, Shanker Lal was abusing him and Bhanwar Singh was contending that why the urine was thrown upon him. He deposed that Shanker Lal inflicted a lathi blow on Bhanwar Singh and he fell. Smt. Gawari hurled a stone on the mouth of deceased Bhanwar Singh and Tara Ram while sitting on the person of deceased Bhanwar Singh, stifled his throat with both the hands and at this juncture, when Jasoda (PW 7) came to his rescue, Shanker Lal inflicted lathi blow on her both the hands. Smt. Gawari hurled a stone on the mouth of deceased Bhanwar Singh and Tara Ram while sitting on the person of deceased Bhanwar Singh, stifled his throat with both the hands and at this juncture, when Jasoda (PW 7) came to his rescue, Shanker Lal inflicted lathi blow on her both the hands. He deposed that there was big crowd and later, the mother of deceased Bhanwar Singh and his wife had also reached the place of occurrence and thereafter, he left for home. He deposed that before Tara Ram stifled the throat of deceased Bhanwar Singh, nobody attempted to rescue him. In the cross examination, he has further deposed that Shanker Lal had given two lathi blows to Jasoda (PW 7). He deposed that Bhanwar Singh did become unconscious after the lathi blow rather, he lost the consciousness after his throat was stifled. He further deposed that Bhanwar Singh fell with his back on the ground. According to him, as a result of stifling of throat, the eye ball of the deceased had prolapsed, the tongue had also came out and blood was oozing out of his ear which is apparently contrary to the medical evidence on record. 22. Julekhan Banu (PW 4) has deposed that when she reached the place of occurrence, she saw deceased Bhanwar Singh lying on the public way and accused Shanker Lal, Gawari Devi and Tara Ram were standing there. That apart, Hari Singh (PW 5), Karan Singh (PW 3), Bhanwar Singh (PW 2), Jasoda (PW 7) were also present there. The deceased Bhanwar Singh was lying in unconscious position. She deposed that deceased Bhanwar Singh was taken to hospital in a rikshaw by his wife Shakuntala (PW 12) and two others. Jasoda (PW 12) was accompanying deceased Bhanwar Singh to the hospital. She further deposed that in the night on the fateful day, the cot of the Maulana was lying outside the masjid inasmuch as, in summers, Maulana used to sleep on the cot outside the masjid or on the roof. She further deposed that at the place of occurrence, she had seen Shanker Lal in the injured state and the blood was oozing out probably out of his head and further that she do know if Gawari also suffered the injuries. She further deposed that at the place of occurrence, she had seen Shanker Lal in the injured state and the blood was oozing out probably out of his head and further that she do know if Gawari also suffered the injuries. Thus, as per the deposition of Julekhan Banu, she was the eye witness of the incident of beating rather, she reached the place of occurrence when the incident was over. 23. Sunder (PW 8) niece of deceased Bhanwar Singh deposed that hearing the ruckus she and her maasi Jasoda (PW 7) woke up and saw that her uncle (mama) was lying on the ground. However, at the same time, she also deposed that Shanker inflicted lathi blow on the head of her uncle deceased Bhanwar Singh as a result whereof, he fell on the ground. Thereafter, accused Gawari hurled stone on the mouth and neck of her uncle and Tariya (Tararam) stifled the throat of her uncle with both the hands. In the cross examination, she deposed that Shanker Lal inflicted 4-5 injuries by stick in the back of the head and forehead of the deceased. She deposed that no blood was oozing out except from the head and forehead of her uncle deceased Bhanwar Singh. She further deposed that she had seen anybody beating Jasoda. In the cross examination, she categorically deposed that she had come out of the house after quite some time of waking up, when her maasi gave a call to accompany her to bring the rikshaw. In the considered opinion of this court, the self contradictions in the statement of Sunder (PW 8) abundantly makes clear that she was an eye witness of the incident rather, she is a planted and tutored witness. 24. Coming to the statement of Shakuntala (PW 12), the wife of deceased Bhanwar Singh, it is noticed that she is claimed to be eye witness of the incident, however, she has categorically stated that the body of the deceased Bhanwar Singh was lying on the ground in front of the masjid where nothing else but stones were there. Contrary to deposition of Jasoda (PW 7), she stated that on the fateful day, urine was thrown on deceased Bhanwar Singh by Bhagu, daughter of Shanker Lal and Gawari w/o Shanker Lal as claimed by the witness Jasoda (PW 7). Contrary to deposition of Jasoda (PW 7), she stated that on the fateful day, urine was thrown on deceased Bhanwar Singh by Bhagu, daughter of Shanker Lal and Gawari w/o Shanker Lal as claimed by the witness Jasoda (PW 7). She was informed about the beating given to her husband by Jasoda (PW 7). She further deposed that her husband was lying on the ground near Maulana's cot. As per deposition of Shakuntala (PW 9) her husband was wearing bushirt at the relevant time and the Article-2 bushirt found to be blood stained in FSL Report (Ex.P/13) does belong to her husband. 25. Kalu Singh (PW 15) has deposed that he used to drive rikshaw owned by Raju and on the fateful day at 10 P.M. on the call of Jasoda and Sunder, he had taken deceased Bhanwar Singh to the hospital. He deposed that he had reported the incident occurred to the police but he had informed about the incident to the owner of the rikshaw Raju. He categorically deposed that he neither revealed to Jasoda (PW 7) and Sunder (PW 8) that the rikshaw driven by him belongs to Raju nor anybody of the family of deceased Bhanwar Singh were knowing about this fact and thus, it is clear as to on what basis in her statement before the police (Ex.P/4 ) Jasoda stated that deceased Bhanwar Singh was taken to the hospital in Raju's rickshaw. It is pertinent to note that as per roznamcha rapat (Ex.18), Raju Rikshawala at the instance of doctor informed the police about the incident of beating and thus, it appears that in place of Raju, Kalu Singh (PW 15) has been planted as witness, who happens to be close relative of deceased Bhanwar Singh. 26. Chhotelal (DW-1) examined on behalf of the defense deposed that on the fateful day at 10 P.M. while he was going from his house to the Well, at that time, deceased Bhanwar Singh and four women were hurling stones in the house of the accused Shanker Lal. Thereupon, when Shanker Lal opened the door and came out of the house, deceased Bhanwar Singh hurled a brick on his head and stone on his knee. Then deceased Bhanwar Singh went to his house to bring lathi and the women accompanying deceased Bhanwar Singh, dragged Shanker Lal to road in front of the masjid. Thereupon, when Shanker Lal opened the door and came out of the house, deceased Bhanwar Singh hurled a brick on his head and stone on his knee. Then deceased Bhanwar Singh went to his house to bring lathi and the women accompanying deceased Bhanwar Singh, dragged Shanker Lal to road in front of the masjid. In the meantime, Bhanwar Singh came armed with lathi and gave a lathi blow on the back of Shanker Lal, when deceased Bhanwar Singh was about to give second blow to Shanker Lal, Shanker Lal pushed Bhanwar Singh who fell on iron cot of Maulvi and then on masonry stone lying nearby, he and Maulvi Sahab intervened and got them separated. According to him, accused Tararam was present there. In cross-examination, he denied the suggestion that Shanker Lal, his wife Gawari and Tararam had beaten deceased Bhanwar Singh. He denied the knowledge about Bhanwar Singh having become unconscious and stated that on account of darkness, he could see if the blood was oozing out from the head of Bhanwar Singh. He admitted that number of persons were standing there, but he failed to disclose the name of any of them. Though Bhanwar Singh, yet another eye witness, has admitted presence of Chhote Lal at the place of occurrence, but in the manner he has narrated the incident reveals that he has concealed the details of the incident occurred and has come out with true and complete disclosure. 27. The discussion of the evidence on record makes it abundantly clear that Shanker Lal had inflicted only one lathi blow on the person of the deceased Bhanwar Singh. But then, as per postmortem report (Exhibit-1), there were two head injuries suffered by the deceased Bhanwar Singh. It has come on record that Bhanwar Singh was lying on the ground near the Maulana's iron cot and there were masonry stones lying nearby, which stands fortified from the testimony of Shankultala (PW-12), Jullekhan Banu (PW-4) and Chhote Lal (DW-1). Thus possibility of Bhanwar Singh suffering the head injuries by falling on the iron cot and thereafter on the stones lying on the ground nearby cannot be ruled out. As per the deposition of the eye witnesses, accused Shanker Lal and deceased Bhanwar Singh were facing each other and therefore, it is quite possible that Shanker Lal assaulted the deceased Bhanwar Singh from the front. As per the deposition of the eye witnesses, accused Shanker Lal and deceased Bhanwar Singh were facing each other and therefore, it is quite possible that Shanker Lal assaulted the deceased Bhanwar Singh from the front. As per the postmortem report, there was contusion on the chin of the deceased, the injury which was possible to be caused by a big stone alleged to have been hurled by accused Gawari on the mouth and forehead of deceased Bhanwar Singh. That apart, there exists contradictions in this regard in deposition of the eye witnesses, inasmuch as, as against the other eye witness stating that accused Gawari hurled a stone on the mouth and forehead of the deceased Bhanwar Singh, according to Jasoda (PW-7), Gawari hurled the stone on the neck of deceased Bhanwar Singh. None of the eye witnesses has deposed that anybody else caused injury on the chin of the deceased Bhanwar Singh and therefore, there exists reason to believe that the injury on the chin of deceased Bhanwar Singh might have been caused by lathi blow by the accused Shanker Lal. 28. Looking to the nature of injuries on the face and the neck of the deceased as noticed by the Medical Board in the postmortem report, the same could have been caused by a big stone of 2 to 5 kg. alleged to have been hurled by accused Gawari inasmuch as if such a big stone is hurled on the face or the neck, the injury likely to be caused would be more severe and thus, in the considered opinion of this Court, the conclusion arrived at by the trial Judge that it is proved beyond reasonable doubt that Gawari inflicted any injury to the deceased Bhanwar Singh, cannot be faulted with. 29. As per the deposition of the eye witnesses, after deceased Bhanwar Singh fell on the ground and fainted, Tararam stifled his throat with both the hands. As per the postmortem report (Exhibit-P/1) contusion in the size of 5 cm x 4 cm was found on the front of the neck of the deceased. As per deposition of the Dr. Rikhab Lunkar (PW-1) and Dr. Chautha Ram (PW-9) have deposed that there was no mark of fingers or thumb on the neck but 4-5 nail marks were there. As per deposition of the Dr. Rikhab Lunkar (PW-1) and Dr. Chautha Ram (PW-9) have deposed that there was no mark of fingers or thumb on the neck but 4-5 nail marks were there. There was no fracture of bone of windpipe, no change of colour of tongue and there was no prolapse of eyeballs as a result of throttling. No blood was oozing out from nose or ear either. They have deposed in unequivocal terms that on account of fracture of skull bone, the blood might have accumulated in the windpipe through mouth. That apart, it is further deposed by them that on account of throttling, a person will die instantaneously, whereas admittedly, deceased Bhanwar Singh had died after reaching the hospital. Thus, the allegation of throttling against the accused Tararam and death of Bhanwar Singh in consequence thereof is proved. But, the injury of contusion and marks of nails on the neck of the deceased must have been caused on account of Tararam stifling his throat. 30. This takes us to consider the issue whether the accused respondent had an intention to cause death of the deceased or to cause such bodily injury which was likely to cause death. 31. Admittedly, there existed the dispute between the parties on account of accused Shanker Lal opening the gate in the gali existing in the back of their houses. On the fateful day as alleged, accused Gawari or Bhagu daughter of Shankarlal threw urine, a few drops whereof had fallen on the person of deceased Bhanwar Singh which resulted in some altercation between Bhanwar Singh and Shanker Lal's wife Gawari/the daughter Bhagu and as per the Jasoda (PW-7), Bhanwar Singh was very much annoyed for this reason. It is a matter of record that accused Shanker Lal and Smt. Gawari also suffered injuries, which as per their injury reports (Exhibit-D-5 & D-6) cannot be said to be superficial. It is also matter of record that in a case registered vide FIR (Exhibit-D/6), the police after investigation found that the injuries to the accused Shanker Lal and Gawari were inflicted by deceased Bhanwar Singh, however, filed a final report in the matter as Bhanwar Singh had expired. It is the prosecution case that Shankarlal gave a lathi blow on the back of the head of deceased Bhanwar Singh, he fell and fainted. It is the prosecution case that Shankarlal gave a lathi blow on the back of the head of deceased Bhanwar Singh, he fell and fainted. If Shanker Lal was aggressor and on his giving the lathi blow, Bhanwar Singh fell and fainted, then obviously, the injuries to accused Shanker Lal and Gawari could have been caused by deceased Bhanwar Singh, else either the deceased Bhanwar Singh was the aggressor or some more persons of the complainant party were involved in the incident of beating. As a matter of fact, the injuries caused to the accused persons have been explained by the prosecution. In this view of the matter, in the considered opinion of this Court, the prosecution has concealed the genesis of the incident as also the manner in which the incident actually occurred. It appears that there was quarrel between the parties wherein both the parties inflicted injuries on each other. None of the injuries attributed to the accused respondents which are grievous in nature, as discussed above, are found to be proved having been caused by them beyond reasonable doubt. In this view of the matter, the conclusion arrived at by the trial Judge that the accused had no intention to cause death or cause any such bodily injury to the deceased Bhanwar Singh which was likely to cause death, after appreciation of the evidence on record in its entirety and objectivity, cannot be said to be erroneous so as to warrant interference by this Court. 32. In view of the findings arrived at as aforesaid regarding the injuries caused by the accused respondent and having regard to the circumstances of the case discussed above, the impugned judgment passed by the trial Judge does not warrant any interference by this court. 33. In the result, the appeal fails, the same is hereby dismissed.