Rajasthan High Court - Jaipur
Kishan Singh And Ors. vs State on 1 March, 1995
Equivalent citations: 1995CRILJ2027, 1995(1)WLC724, 1995(1)WLN656
JUDGMENT Rajendra Saxena, J.
1. These appeals have been preferred against the judgment dated 30-5-89 passed by the learned Sessions Judge, Jodhpur. whereby he convicted appellant Khinv Singh for the offence under Section 302, I.P.C., for committing the murder of Prithvi Singh and appellants Bhanwar Singh, Kalyan Singh Kishan Singh, Daul Singh and Rameshwar Singh for the said murder under Section 302/149, I.P.C., and sentenced each one of them to life imprisonment and fine of Rs. 50/- in default to further undergo R. I. for one month. He further convicted the aforementioned six appellants for committing murder of Onkar Singh under Section 302 read with 149, I.P.C., and sentenced each one of them to life imprisonment and a fine of Rs. 50/- in default to further undergo R. I. for one month: He further found all the appellants guilty for the offence under Section 148, I.P.C., and sentenced each one of them to R. I. for one year and directed that all substantive sentences shall run concurrently.
2. Since these appeals are out of the same judgment, they are being decided by this common judgment.
3. Stated in succinct the facts necessary for the disposal of these appeals are that on 5-10-85 at about 9 a.m. deceased Prithvi Singh and his cousin sister P.W.3 Kumari Sushila aged about 15-16 years were going to their field, situated near village Kakelav to harvest their 'Guwar' crop. Prithvi Singh was carrying on a pitcher of water. When they reached near the 'Bara' of appellant Kalyan Singh, appellants Daul Singh, Kishan Singh and Rameshwar Singh emerged out from the said 'Bara', while appellants Khinv Singh, Bhanwar Singh and Kalyan Singh came there from the rear side. Appellants Kishan Singh, Rameshwar Singh and Khinv Singh were armed with 'Dharias' while other appellants had lathies. It is alleged that appellant Khinv Singh told to appellant Kishan Singh that their enemy has been found and that they would teach him a lesson for pursuing the case against them. Thereupon, appellant Khinv Singh dealt a 'Dharia' blow on the head of Prithvi Singh with the result that the latter fell down. Thereafter all the appellants indiscriminately inflicted 'Dharia' and lathi blows causing multiple injuries to Prithvi Singh, who succumbed to his injuries. When Sushila raised an alarm, appellants told her that they have already killed Prithvi Singh and now it was the turn of her family members. P.W. 2 Gopal Singh, who also witnessed the said incident asked the appellants not to do so. He also started raising alarm. It is the case of the prosecution that the appellants dragged the deal body of Prithvi Singh towards the village. Kumari Sushila ran towards village and informed about the incident to her father Roop Singh (P.W. 1) deceased Onkar Singh and Shaitan Singh, who were at that time going to their house carrying the 'Chhipta' (Bajra Plant Stems) in a cart from their field. It is further the case of prosecution that at that point of time appellants also reached there. Thereupon, in order to save their lives Roop Singh, deceased Onkar Singh and Shaitan Singh ran helter skelter leaving their bullock cart in the way. Deceased Onkar Singh entered into the 'Bara' of one' Lala Ram Nai, but the appellants entered therein and dragged him out. Appellant Kishan Singh inflicted a 'Dharia' blow on the head of Onkar Singh, who fell down. Appellant Rameshwar Singh dealt a 'Dharia' blow on his face multiple injuries to Onkar Singh by inflicting 'Dharia' and lathi blows. The appellants also ran after Shaitan Singh, who made good his escape.
3. P.W. 1 Roop Singh rushed to Police Station, Dangiabas, which is at a distance of about 10 Kms. from the place of occurrence and lodged written report Ex. P. 1 to P.W. 6 Jabbar Singh L; C. on the same day at about 11.30 a.m. The S.H.O. and the Head Moharir had gone out of Police Station on Government duty, as such F.I.R. could not be drawn. P.W. 11 Sohan Lal, S.H.O. returned to the Police Station same day at about 1 p.m., whereupon formal F.I.R. Ex. P. 17 was drawn and a case was registered under Sections 147, 148, 302, 149, I.P.C. The S.H.O. inspected the place of occurrence, prepared site-plan and memo thereof Ex. P. 2A and Ex. P. 2 respectively and inquest reports of the dead bodies of Onkar Singh and Prithvi Singh Ex. P. 8 and Ex. P. 9 respectively. He also lifted the samples of bloodstained soil as also the controlled samples from the places of occurrence.
4. Next day i.e. on 6-10-85, a board of doctors including P.W. 5 Dr. Jagdish Jugtawat conducted the medico legal autopsies of deceased Prithvi Singh and Onkar Singh and prepared post-mortem reports Ex. P. 10 and Ex. P. 11 respectively. The doctors found as many as 31 injuries on each of the bodies of the deceased persons in the manner detailed in the post-mortem examination reports. The doctors opined that cause of death of Prithvi Singh was the head injury sustained by him, while Onkar Singh had died due to shock and haemorrhage caused by multiple injuried received by him. The appellants were arrested and it is alleged that in pursuance to their respective informations recorded under Section 27 Evidence Act, they got recovered bloodstained 'Dharias' and lathies from their house/ 'Baras', which were seized and sealed by the Investigation Officer. Blood-stained clothes of the deceased persons were also seized and sealed and as many as twelve sealed packets were sent for serological examination to the State Forensic Science Laboratory, Jaipur. The Serologist vide his report Ex, P. 30 opined that the blood smeared soil samples, Dhoti, Jhabba, Baniyan and under wear of deceased Prithvi Singh and "Dhoti", and 'Baniyan' taken out from the, dead body of Onkar Singh' as also two "Dharia" and three lathies alleged to have been recovered at the instance of the appellants were stained with human blood. However, the origin of stains on one 'Dharia' bearing Ex. mark 13 could not be determined, because the material was not sufficient for test. The Serologist further opined that the aforementioned garments taken from the dead bodies of Prithvi Singh and 'Dhoti' of deceased Onkar Singh were stained with B group blood. However the blood group of other articles could not be determined, because the material thereon were disintegrated. During investigation, it transpired that an old criminal case in respect of the alleged abduction of Smt. Supyar was pending between the parties. Besides that on the report of Prithvi Singh, Crime No. 85 dated 30-8-85 was registered vide F.I.R. No. Ex. P. 28 against appellant Khinv Singh at Police Station Dangiabas for offence under Section 307, I.P.C., for the attempt to commit the murder of Kan Singh, the father of deceased Prithvi Singh and that the learned Sessions Judge, Jodhpur by his order dated 4-10-85 Ex. P. 29 had rejected the anticipatory bail application filed on behalf of appellant Khinv Singh in that case. The appellants, therefore, bore enmity with complainant party and formed an unlawful assembly having a common object of committing their murder and in furtherance thereof they committed the murders of Prithvi Singh and Onkar Singh. After investigation challan was filed against the appellants in the Court of learned Munsif and Judicial Magistrate, Jodhpur, who in his turn committed the case to the learned Sessions Judge.
5. The appellants were charged for the offences under Sections 148, 302 and 302/149, I.P.C. They denied >he indictment and claimed trial. The prosecution examined, as many as 12 witnesses. The appellants in their plea recorded under Section 313, Cr. P. C. denied the circumstances appearing against them in the prosecution evidence. Appellants Bhanwar Singh and Kalyan Singh pleaded alibi and claimed that on the day and time of the alleged incident, they were in Jodhpur from where they were arrested by the police. Appellant Rameshwar Singh pleaded that on the day of occurrence he had gone to the jungle to graze his cows and that when he returned the police arrested him in the village. Appellant Daul Singh asserted that he was suffering from tuberculosis and was confined to bed. The appellants claimed that they have been falsely implicated. In their defence they examined three witnesses. The learned Sessions Judge after trial found all the appellants guilty for the offence under Section 148, I.P.C, convicted appellant Khinv Singh under Section 302, I.P.C, simpliciter for committing the murder of Prithvi Singh and other appellants for the offences under Section 302/149, I.P.C, for the said murder and convicted all the appellants under Section 302 read with 149, I.P.C, for the murder of Onkar Singh and sentenced them as indicated above. Hence those appeals.
6. We have heard Shri M. L. Garg, the learned counsel for the appellants and Shri V. R. Mehta, the learned Public Prosecution for the State and carefully perused the record of the lower Court.
7. Shri M. L. Garg has strenuously contended that the prosecution has not cared to produce any independent witnesses, on the other hand the alleged eye-witnesses P.W. 1 Roop Singh, P.W. 2 Gopal Singh and P.W. 3 Kumari Sushila are close relatives, that there is material variance in the oculartestimony and medical evidence, that the prosecution case is unreliable and unnatural and that the Investigation Officer has not conducted the investigation fairly. He has submitted that admittedly no blood trail was found by the Investigation Officer from the places, where deceased Prithvi Singh and Onkar Singh had received injuries and the places, where their bodies were found at the time of the site inspection and that the Investigation Officer did not seize the broken pitcher and the 'Kunda' containing the food, which Sushila was carrying as also the bullock cart and 'Chhiptas' from the places of occurrence, which made the prosecution story doubtful. He has asserted that there is no reason to disbelieve the theory of alibi of appellants Bhanwar Singh and Kalyan Singh, who were in Jodhpur at the time of the alleged occurrence. According to him, the learned Sessions Judge has committed an illegality of law and fact in relying on the tainted testimony of alleged eyewitnesses. Lastly Shri Garg has contended that from the evidence recorded in this case, it stands fairly established that the appellants did not have any common object to commit the murders of Prithvi Singh and Onkar Singh and that in the alternative at the worst the offence committed by the appellant does not travel beyond the offence punishable under Section 304 Part II read with Section 149, I.P.C.
8. On the other hand Shri V. R. Mehta, the learned Public Prosecutor has argued that the plea of alibi taken by the appellants Bhanwar Singh and Kalyan Singh is palpably false, that the F.I.R. was lodged with promptitude and there is no occasion for improvement and embelishment, that the motive for committing the murders of Prithvi Singh and Onkar Singh has been well proved, that since the alleged eye-witness Shaitan Singh alter the incident had become dumb, he was not examined, though he was present in the Court and that the alleged eye-witnesses are reliable and trustworthy witnesses, whose testimony has been well corroborated by the medical evidence. Accordingly to him, it was not at all necessary for the Investigation Officer to have seized the broken pitcher, which Prithvi Singh was carrying and the food and 'Kunda", which Sushila was carrying on or the bullock cart or 'Chhiptas' in this ease, because those articles are not connected with the crime. He has contended that deceased Prithvi Singh and Onkar Singh had received fatal injuries on their vital parts of their bodies and each one of them sustained thirty one injuries by sharp edged' and blunt weapons, which manifestly show that the appellants had intentionally and mercilessly inflicted multiple injuries to them, causing their instantaneous death on the spot. He has submitted that from the prosecution evidence it stands firmly established that appellants formed unlawful assembly having common object of committing murders of Prithvi Singh and Onkar Singh and as such the learned Sessions Judge has not committed any illegality either of fact or of law in convicting the appeals for the offences under Sections 148, 302 and 302 read with 149, I.P.C.
9. We have given our anxious and thoughtful consideration to the rival submissions made before us. The factum of homicidal deaths of Prithvi Singh and Onkar Singh has been well proved by the sworn testimony of P.W. 5 Dr. Jagdish Jugtawat and alleged eye-witnesses P.W. I Roop Singh, P.W. 2 Gopal Singh and P.W. 3 Ku. Sushila.
10. Dr. Jugtawat has proved autopsy reports of Prithvi Singh and Onkar Singh Ex. P. 10 and Ex. P. 11 respectively. He has deposed that he along with Dr. M. P. Joshi had conducted the post-mortem examination on the dead body of Prithvi Singh and found following injuries :-
(1) Incised wound 9.5 cm. x 0.6 cm. x cranial cavity deep present on (Rt.) side frontal region placed obliquely. The lower end of wound is 2.5 cm. above the middle of eye brow. (2) Abrasion 4 cm. x 2.5 cm. on (Rt.) cheek in its middle.
(3) A lacerated wound 2 cm. x 0.3 cm. x muscle deep on (Rt.) side upper lip. (4) A lacerated wound 3.5 cm. x 0.8 cm. x muscle deep on the lateral end of (Lt.) eye with bruise around it. (5) Abraded bruise 5 cm. x 4 cm. on (Rt.) unandibular region.
(6) Bruise 11 cm. x 9 cm. on the (Rt.) arm upper 1/3 portion lateral aspect. (7) A lacerated wound 5 cm. x 2 cm. x skin deep on posterior aspect just above the (Rt.) elbow joint. (8) Bruise 9 cm. 8 cm. on portero medially aspect of (Rt.) elblow joint. (9) Incised wound 6 cm. x 2 1/2 cm. x bone deep obliquely with fracture of both bones present on (Rt.) fore arm middle 1/3 posteriorly. (10) Bruise 7 cm. x 7 cm. on supero lateral aspect of (Lt.) shoulder.
(11) Bruise 13 cm. x 12 cm. on (Lt.) arm posterolaterally upper 1/2 portion. (12) Bruise 10 cm. 8 cm. on (Rt.) elbow posterolaterally.
(13) Bruise 10 cm. x 7 cm. on the lateral aspect of (Rt.) side of chest 1/2 portion. (14) Ill-defined swelling on (Rt.) hand dorsal aspect.
(15) Bruise 8 cm. x 4 cm. on (Rt.) iliac region.
(16) Bruise 12 cm. x 6 cm. on front of (Rt.) thigh upper 1/2.
(17) Bruise 14 cm. x 7 cm. on (Rt.) thigh anteromediately lower 1/2 portion. (18) Bruise 11 cm. x 2 cm. on antero medial aspect of (Rt.) thigh above the knee joint. (19) A lacerated wound 5 cm x 2 cm. x muscle deep on front of (Rt.) Leg. at its middle. (20) A lacerated wound 3 cm. x 1 cm. x muscle deep just below and medially to Inj No. (19). (21) Bruise 11 cm. x 3 cm. on lateral aspect of (Rt.) Leg. middle 1/3.
(22) A lacerated wound 2 cm. x 1 cm. x muscle deep on medial aspect of (Lt.) leg middle 1/3. (23) A lacerated wound 3 cm. x. 1 cm. x muscle deep on front of (Lt.) Leg midde 1/3. (24) A lacerated wound 5 cm. x 2 cm. muscle deep on antero medial aspect of (Lt.) leg lower 1/3. (25) Bruise 11 cm. x 2 cm. on antero medial aspect of (Lt.) leg just below knee joint. (26) Abrasion 3 cm. x 2 cm. on just above the lateral maleolur(Lt.) (27) Multiple bruise in area of 30 cm. x 17. on (Lt.) side of back upper 1/2 portion. (28) Multiple bruise in area of 13 cm. x 7 cm. on (Lt.) gluteal region. (29) Bruise 16 cm. x 6 cm. on posterior aspect of (Lt.) thigh middle 1/3. (30) Multiple bruise in area of 32 cm x. 27 cm. on the upper 2/3 (Rt.) side of back. (31) Bruise 30 cm. x 5 cm. placed longitudinally on the posterior aspect of (Rt.) thigh upper 2/3.
11. Dr. Jugtawat has further deposed that on dissection, he found that the frontal bone, brain and its membranes had been cut under the site of injury No. 1 and that there was extra vassation of blood in surrounding tissues. Injury Nos. 1 and 9 were caused by sharp edged weapon, whereas other injuries were caused by blunt objects. He has stated that cause of death of Prithvi Singh was head injury, which in the ordinary course of nature to have caused deceased were ante mortem in nature.
12. Dr. Jugtawat has further deposed that he hound the following injuries on the person of Onkar Singh :-
(1) Incised wound 4 cm. x 0.5 cm. x scalp deep on (Ltd.) parietal region placed obliquely. (2) A lacerated wound 4 cm. x 0.6 cm. x scalp deep longitudinally oblique on (Rt.) parietal region. (3) Incised would 3 cm. x 1 cm. x muscle deep on (Rt.) mastoid region behind the ear. (4) Incised wound 1 cm. x 0.3 cm. x full thickness deep on middle of (Rt.) pinna. (5) Incised wound 4 cm x 2 cm. x bone deep on upper lip in its middle with fracture of maxilla, upper central in cissor teath, are missing from socket with cutting of alveolar tissue and gums. (6) Incised wound 3 cm. x 1 cm. x bone deep with fracture of mandible present on (Rt.) side lower lip obliquely loosening of (Rt.) lower lateral incissor end cayine teeth. (7) Abrasion 1.5 cm. x 1 cm. on (Rt.) cheek prominence.
(8) Multiple bruises on postero lateral aspect of (Rt.) arm.
(9) Incised wound 2.5 cm. x 1 cm. x muscle deep on the (Rt.) arm posteriorly just above the elbow joint. (10) Lacerated wound 1 cm. x 1 cm. x skin deep on the lateral aspect of (Rt.) elbow. (11) Bruise 8 cm. x 8 cm. on postero lateral aspects of (Rt.) elbow jt.. (12) Abrasion 8 cm. x 1 cm. on the medial aspect of (Rt.) fore arm at middle 1/3. (13) Abrasion 2 cm. 2 cm. on the medial aspect of (Rt.) elbow.
(14) Multiple bruises on (Rt.) side of gluteal region in an area of 15 cm. x 11 cm. (15) Multiple abrasions in area of 18 cm. x 7 cm. on the antero lateral aspect of (Rt.) thigh in lower 1/ 2 portion:
(16) Abraded bruise 10 cm. x 5 cm. on the anterolatcral aspect of (Rt.) leg. upper 1/3 with closed fracture of tibia and fibula. (17) A lacerated wound 1.5 cm. x 0.5 cm. x skin deep on the lateral meleolus of (Rt.) leg. (18) Abrasion 4 cm. x 2 cm. on the lateral aspect of (Rt.) ankle joint.
(19) Bruise 9 cm. x 4 cm. on postero medial aspect of (Lt.) fore arm in upper 1/3. (20) Abraded bruise 4 cm. x 2 cm. on the Dorsum of (Lt.) hand with illdefined swelling on it. (21) Abrasion 10 cm. x 4 cm. on the antero medial aspect of (Lt.) knee joint. (22) Abraded bruise 10 cm. x 4 cm. on the leg (Lt.) side in front upper 1/3 with fracture of leg bones. (23) Abrasion 6 cm. x 1 cm. on the font of (Lt.) leg at middle 1/3 placed longitudinally. (24) Lacerated wound 4 cm. x 1 cm. x skin deep on medial aspect of (Lt.) leg at lower 1/3. (25) Abrasion 4 cm. 1 cm. on the medial meleolus of(Lt.)leg.
(26) Abrasion 2 cm. x 2 cm. on the lateral meleolus of (Lt.) leg.
(27) Multiple bruses over the (Rt.) scapular region in area of 20 cm. x 16 cm. (28) Multiple bruises in area of 22 cm. x 18 cm. on the process lateral aspect of (Rt.) sided lower part of chest and upper part of abdomen with an abrasion of 5 cm. x 2 cm. on the bruised area on lateral aspect of chest lower part. (29) Multiple brusies in area of 13 cm. x 8 cm. on the lower part of back of abdoen on (Rt.) side. (30) Abrasion 19 cm. x 6 cm on the anterolateral aspect of (Lt.) side of chest. (31) Abraded bruise 22 cm. x 13 cm. on the (Lt) side of back of chest.
According to him all those injuries were ante mortem in nature. He has stated that on dissection he found the fractures in 4th to 7th ribs of the right side at their angles anteriorly on the axillary line, coinciding to injury No. 28, that the last pleura was torn at the fracture site and pleural cacity contained about 60 ml. of blood, that the right lung had two lacerations 2.5 cm. x 0.6 x 1 cm. on the lower part of the middle lobe, that the peritonial cavity contained about 1200 c.c. of blood and that the liver was lacerated measuring 6 cm. x 0.8 x 1 cm. on the right lobe obliquely at the middle, coinciding to injury No: 28. According to him injury No. 28 was sufficient in the ordinary course of nature to have caused death. Besides the said injury, injuries Nos. 5,6, 16 and 22 were grievous. Injuries Nos. 1,3,4,5 and 9 were caused by sharp edged weapons, while rest of the injuries were caused by blunt objects.
13. Dr. Jugtawat has stated that the incised wounds sustained by Pirithvi Singh and Onkar Singh could have been caused by 'Dharias' and that the other injuries received by them could have been caused by lathies. He has further deposed that the cumulative effect of the injuries sustained by each of the deceased was sufficient to have caused death. He has denied the suggestion that the bruises received by the deceased persons could have been caused by the 'Babool' shrubs. It may be mentioned here that no other material question in respect of the injuries sustained by the deceased persons has been put on behalf of appellants to this witness. Thus, it stands well established beyond reasonable doubt that the deaths of Prithvi Singh and Onkar Singh were homicidal.
14. P.W. 3 Kumari Sushila has deposed that she knew the appellants, who are residents of her village, that on the ill fated day at about 9 am., she along with her cousin Prithvi Singh were going to latter's field to harvest the 'Guwar' crop, that Prithvi Singh had a pitcher of water, while she was carrying an iron-ware (Kunda) containing the meals, that when they reached near the 'Bara' of appellant Kalyan Singh, appellants Daul Singh, Rameshwr Singh and Kishan Singh came out from the said 'Bara' from front side, that Kishan Singh had a 'Dharia', while other two appellants were armed with lathies, that on seeing them Prithvi Singh ran towards the village, that he had hardly 2-4 paces, that appellant Khinv Singh having a 'Dharia' and appellants Kalyan Singh and Bhanwar Singh armed with lathies came in front of him, that thereafter Khinv Singh dealt a 'Dharia' blow on the head of Prithvi Singh saying that he would teach him a lesson for prosecuting case against them, that after receiving the head injury, Prithvi Singh fell down and that thereafter all the six appellants indiscriminately inflicted injuries on his body. Sushila has further deposed that she raised an alarm and that at that time Gopal Singh, who along with his two calves (Togadias) was was coming about 15 paces behind them reached there and asked the appellants not to kill Prithvi Singh. Sushila has stated that appellant Khinv Singh and Kishan Singh dragged Prithvi Singh towards the village while thee other appellants continued beating him, that thereafter she went towards the village running, that in the way she saw her father Roop Singh, Onkar Singh and Shaitan Singh, who were coming towards the village with a bullock cart loaded with 'Chhiptas', that she informed them that the appellants had killed Prithvi Singh, that in the meanwhile all the six appellants also reached there, that on seeing them, Onkar Singh entered into the 'Bara' of Lala Nai, that appellant Kishan Singh, Khinv Singh and Daul Singh chased him and went inside the 'Bara' and dragged him out from the said 'Bara', that appellant Kishan Singh dealt a 'Dharia' blow on his head, while appellants Rameshwar Singh inflicted a 'Dharia' blow on his face and that thereafter all the appellants started causing injuries to him. Sushila has further stated that appellant Kishan Singh and Rameshwar Singh dragged Onkar Singh in the way while other appellants continued inflicting injuries to him for a distance of about 200 paces and that thereafter they left Onkar Singh there. She has deposed that Shaitan Singh also witnessed the said incident from a distance of about 15 paces and that the appellants ran towards him, who fled away and made good his escape. In her cross examination, she has admitted that P.W. 1 Roop Singh is her father and that Shaitan Singh and deceased Onkar Singh are her cousins. She has deposed that the appellants are also her relatives and reside in the same village, which is inhabitated by persons of Purohit community only. She has informed that after Prithvi Singh received injuries, she had left the 'Kunda' containing her meals in the way near a 'Ker' tree, while Prithvi Singh's pitcher of water was broken, that Prithvi Singh had fallen down after receiving the first 'dharia' blow on his head and that at that time Gopal Singh was about 15 paces behind them and that she noticed Gopal Singh when she had raised the alarm. She has stated that she had shouted 'Mare Re - Mare Re', 'Chhudao Re-Chhudao Re', that since she was frightened, she could not cry loudly and that at that time Gopal Singh had also asked the appellants not to kill Prithvi Singh saying 'Mat Maro Re'. She has stated that when the appellants caused injuries to Prithvi Singh, she was frightened and apprehended that they would also kill her, so she ran away towards the village and informed her father Roop Singh, Onkar Singh and Shaitan Singh, who were coming from the field with a bullock cart carrying 'Bazra' plant stems. She has been cross examined at length, but her testimony has remained unshaken and unshattered. As a matter of fact, she had been cross examined in respect of immaterial, insignificant and irrelevant fuels, but ho question has been put to her in respect of the injuries received by deceased Prithvi Singh and Onkar Singh. She had denied the suggestion that some unknown persons had killed Prithvi Singh and Onkar Singh in the night, that the appellants have been falsely implicated later on and that she had not seen the appellants inflicting injuries to them. She has informed that she has covered a distance of about 300 paces, from the place, where Prithvi Singh was dealt and that thereafter she had met Roop Singh, Onkar Singh and Shaitan Singh coming towards the village near the 'Bara' of Shri Kishan Paliwal. She has denied the suggestion that after hearing her alarm, Roop Singh, Onkar Singh and Shaitan Singh had ran away, that they did not meet her in the way and that she did not see the incident. She has deposed that when the appellants caused injuries to Onkar Singh, she was standing near the gate of Bhikh Ji's house. She has not made any significant and substantial improvement in her statement during trial from the statement which she had given to the police. In our considered opinion, she is a reliable and truthful witness and the learned trial Judge has not committed any illegality in relying upon her testimony. Prithvi Singh and Onkar Singh each had received as many as 31 injuries. Prithvi Singh sustained two incised wounds, 8 lacerated wounds and 21 bruises and abrasions, whereas Onkar Singh received as many as six incised wounds, 4 lacerated wounds and 21 abrasions and bruises. As many as six appellants had simultaneously inflicted those injuries to the deceased persons and in such circumstances, it was not at all natural nor possible for P.W. 3 Sushila or any other eye-witness to have given a detailed individual photographic account of the incident and to specify overt act of each appellant.
15. P.W. 2 Gopal Singh, whose name finds mention in the written report Ex. P.I, which was promptly lodged by Roop Singh at Police Station Dangiabas, has substantially corroborated the testimony of Kumari Sushila. He has deposed that on the day of incident at about 9-9.15 am. he was going to his field from his 'Bara' carrying two calves, that just ahead of him Prithvi Singh and Sushila were also going to their field, that Prithvi Singh had a pitcher of water while Sushila carried a 'Tagari' containing meals, that when they reached the 'Bara' of appellant Kalyan Singh, appellants Kishan Singh, Daul Singh and Rameshwar Singh came there from in front of Prithvi Singh and Sushila, while appellants Bhanwar Singh, Khinv Singh and Kalyan Singh came there from their rear side, that Kishan. Singh. Khinv Singh were armed with 'Dharias', while Rameshwar Singh, Bhanwar Singh, Kalyan Singh and Daul Singh had lathies, that on seeing the appellants, Prithvi Singh turned and threw his pitcher near the corner of Devi Lal's field and started running, that thereupon appellants Khinv Singh dealt a 'Dharia' blow on Prithvi Singh's head and thereafter all the six appellants indiscriminately inflicted injuries to him by 'Dharias' and lathies and dragged him, that Sushila, who was standing nearby started weeping, that thereupon appellant Khinv Singh told her that now it was the turn of her family members and that thereafter he and Sushila ran away. Gopal Singh has further deposed that they took shelter inside his 'Bara'. that at that time he had seen the appellants going towards the village and that he came out from his 'Bara' after 2-3 minutes and went near the dead body of Prithvi Singh, which was lying near the 'Ker' tree. He has also deposed that prior to inflicting a "Dharia' blow on the head of Prithvi Singh, appellant Khinv Singh had told the former that he would teach him a lesson for prosecuting the case against him. He has admitted that Smt. Supyar Kanwar is his niece and that appellant Kishan Singh etc. had abducted her in the year 1974 for forcefully marrying her with one Ganpat Singh. This witness has successfully with-stood the test of cross examination. To our minds, he is a natural and truthful witness and has substantially corroborated the sworn testimony of Kumari Sushila for the murder of Prithvi Singh.
16. P.W. 1 Roop Singh has deposed that the deceased Onkar Singh was his cousin while deceased Prithvi Singh was his nephew, that on the ill fated day at about 6 a.m. he along with Shaitan Singh and Onkar Singh had gone to the field of Onkar Singh for taking Bazra plant's stems (Chhiptas), that at about 9 am. when they were coming towards the village carrying the 'Chhiptas' in the bullock cart, his daughter Sushila came running there and told them to run away and also informed that the appellants had killed Prithvi Singh. He has slated that when Kumari Sushila was narrating the incident of Prithvi Singh's murder, all the six appellants also came nearby, that appellant Kishan Singh, Khinv Singh and Rameshwar Singh were armed with 'Dharias'. while other appellants had lathies, that on seeing them he along with Onkar Singh and Shaitan Singh, ran away helter skelter leaving the bullock cart in the way, that Onkar Singh went inside the 'Bara' of Lalu Ram Nai, that appellants chased him and took him out from that 'Bara', that Kishan Singh gave a 'Dharia' blow on the head of Onkar Singh, who fell down, that appellant Rameshwar Singh gave a 'Dharia' blow on the face of Onkar Singh that thereafter all the appellants started causing injuries to him by 'Dharias' and lathies and took him towards the path way (Gova). Roop Singh had deposed that the appellants killed Onkar Singh like an animal by inflicting multiple injuries by 'Dharias' and lathies and that thereafter the appellants chased Shaitan Singh, who had taken a branch of 'Babaliay' tree, but the latter made good his escape. He has stated that thereafter he went to the place, where Prithvi Singh was lying dead. He has deposed that the appellants bore long drawn enmity with Prithvi Singh in connection with the abduction of his uncle Madhao Singh's daughter Smt. Supyar Kanwar, that appellant Kishan Singh, Kalyan Singh, Khinv Singh and Daul Singh had abducted Smt. Supyar Kanwar for which a police case was registered against them and after trial they were convicted and sentenced and that as against their conviction and sentence an appeal filed by the said appellants is still pending. He has deposed that Prithvi Singlrused to pursue that case against the appellants and that the appellants had also inflicted injuries to Prithvi Singh and his father Kan Singh, wherein the latter was hospitalised for a period of 1IV2 months and a case under Section 307, I.P.C, was registered against appellants and Prithvi Singh also pursued the criminal proceedings and, therefore, the appellants bore enmity with him. He has also deposed that immediately after the incident he went to Police Station, Dangiabas, where he submitted a written report Ex. P. 1 and that at that lime P.W. 6 Jabbar Singh, Constable was there, who asked him to wait till the return of the S.H.O., who had gone out on Government duty. He has stated that Jabbar Singh told him that he was not authorised to register the case. This witness has also stated that on the same day the police came to his village at about 2 p.m. and inspected the site, prepared site plan and memo thereof Ex. P. 2 and Ex. P. 2A, the memo of the dead bodies Ex. P. 3 and Ex. P. 4 in his presence. This witness has also been subjected to lengthy cross examination but his testimony has not been shattered. We do not find any valid and reasonable ground to disbelieve his testimony. In our considered opinion the statements of these eye-witnesses are consistent and trustworthy.
17. Another eye-witness, Shaitan Singh was produced in the Court by the prosecution on two dates, but since due to ailment he became dumb, he could not be examined. P.W. 10 Samundra Singh, the real brother of Shaitan Singh was examined, who has stated that for the last 1 1/2 - 2 years Shaitan Singh has become dumb and cannot speak. He stated that due to poverty, he is not in a position to gel the treatment of Shaitan Singh. There is no reason to disbelieve him. Hence in such circumstances, no adverse inference can be drawn against the prosecution in not exmining Shaitan Singh, has become physically incapable to give his statement.
18. Since the village Purohito Ka Bas is inhabited by Purohits only and the appellants are also residents of the said village, other villagers did not come forward to depose against them. The testimony of Kumari Sushila, Roop Singh and Gopal Singh cannot be disbelieved or discarded simply on the ground that they arc relatives. In our opinion, they will be the last persons to falsely implicate other persons and leave the real culprits. There is no material variance or inconsistency between their ocular testimony and the medical evidence.
19. In our considered opinion the prosecution story is neither unnatural nor unbelievable. In this case motive for the murders of Prithvi Singh and Onkar Singh has been well proved, because Prithvi Singh took active part in pursuing the criminal cases against the appellants in connection with the abduction of Supyar Kanwar, wherein the appellants were convicted and sentenced by the trial Judge and whose appeal was pending in the High Court. Besides this deceased Prithvi Singh has also lodged F.I.R. Ex. P. 28 at Police Station, Dangiabas against appellant Khinv Singh alleging that in the night of 29-8-1985 the latter had attempted to commit murder of his father Kan Singh and whereupon a case under Section 307, I.P.C, was registered against him. Appellant Khinv Singh's application for grant of anticipatory bail in that case was also rejected by the learned Sessions Judge, Jodhpur vide his order dated 4-10-1985 Ex. P. 29. Thus, the appellants had enmity with Prithvi Singh and Onkar Singh and that to take revenge, they committed their murders.
20. In this case the incident took place between 9 am. to 9.15 am. The place of occurrence was the path way, which was treated by villagers and the cattle folk in such circumstances the I. O. did not notice any trial of blood from the place, where Prithvi Singh and Onkar Singh were given beating to the places where their bodies were found at the time of the inspection of the site. However, P.W. 11 Sohan Lal and other witnesses have specifically stated that at the time of the inspection of the site, there was blood on the earth, where the dead bodies of Prithvi Singh and Onkar Singh were found lying. The I.O. had also seized the sample of blood from those places. He had also noticed the broken pitcher and the iron 'Tagari' near the place of occurrence of the first incident and the bullock cart and 'Chhiptas' near the place, where the second occurrence took place, these facts also find mention in the memo of site plan. Since those articles were not directly connected with the crime in question, it was not at all necessary for the Investigating Officer to have seized them. Their non seizure and non-production in the Court does not falsify the prosecution story.
21. P.W. 6 Jabbar Singh, Constable has deposed that P.W. 1 Roop Singh had submitted a written report Ex.P. I before him at Police Station. Dangiabas at 11.30 a.m., but since he was not authorised to register the case and Sohan Lal, S.H.O. and Hukam Singh, A.S.I, had gone out on Government duty, he had asked Roop Singh to wait. He has also proved his endorsement from K to K-1 on Ex. P. 1, which is duly signed by Roop Singh. Jabbar Singh has further stated that he informed the S.H.O. through wireless set about the incident, that the S.H.O. returned to the Police Station at 1 p.m. on the same day and registered the case by drawing F.I.R. Ex. P. 17 and that thereafter the S.H.O. rushed to the spot. This fact is further corroborated by the testimony of P.W. 11 Sohan Lal, S.H.O. and P.W. 9 Hukam Singh, A.S.I.
22. Since the link evidence in respect of the tweleve sealed packets contaning the blood-stained 'Dharias' and Iathics alleged to have been recovered at the 'instances of the appellants and the bloodstained clothes of the deceased, was not complete and vital link, was missing, the learned Sessions Judge has rightly not placed any reliance on the alleged recovery of the 'Dharias' and lathies at the instance of the appellants.
23. The presence of the appellants at the time of the incident and their participation in the crime in inflicting fatal and multiple injuries to Prithvi and Onkar Singh has been firmly established by the prosecution evidence. It has also been well proved that the appellant had formed an unlawful assembly having an object to commit the murder of Prithvi Singh and in furtherance thereof accused Khinv Singh inflicted the fatal blow by 'Dharia" on the head of Prithvi Singh and that all appellants in furtherance of the said object inflicted multiple injuries to Prithvi Singh causing his death and that thereafter they mercilessly and indiscriminately committed the murder of Onkar Singh by causing multiple injuries to him.
24. We have seen the Calendar of the Year 1985. 5-10-1985 was the second Saturdary of the month and as such it was a public holiday. Appellants Khinv Singh's anticipatory bail was rejected by the learned Sessions Judge on 4-10-85. In such circumstances, there was no occasion for Kalyan Singh or Bhanwar Singh to present on 5-10-85 in the Court premises at Jodhpur or by D. W. 1 Deva and D. W. 2 Hanuman Singh to present in the Court campus at Jodhpur. The learned Sessions Judge has, thus rightly disbelieved the defence evidence on this count and correctly held that the alleged plea of alibi taken on behalf of appellants Bhanwar Singh and Kalyan Singh was palpably false.
25. Shri Garg has strenuously argued that even if the prosecution evidence is taken to be correct still then the offence made out against the appellants does not travel beyond the offence punishable under Section 304 Part II, I.P.C. For this he has placed reliance on Nardeen v. Stale of Raj., 1977 Cri LR (Raj) 447.
26. In that case injuries by lathies were inflicted on the non-vital parts of the body of the deceased and a fracture of a rib had ruptured the lung causing the death. It was held that it was difficult to conclude that the common object of unlawful assembly was to commit murder and the conviction of the accused under Section 302, I.P.C, was set aside and they were found guilty for the offence under Section 304 Part-II, I.P.C. The facts of Nardeen's ease are clearly distinguishable. In the case on hand, Prithvi Singh received fatal injuries on his head by a sharp edged weapon by the 'Dharia' blow inflicted by appellant Khinv Singh. This injury caused fracture of the frontal bone, brain and its membranes and as per the testimony of Dr. Jugtawat, it was sufficient in the ordinary course of nature to have caused death. The appellants inflicted as many as 31 injuries to Prithvi Singh. Thus, the offence under Section 302, I.P.C, is proved beyond all reasonable doubt against Khinv Singh. Since the appellants were the members of the unlawful assembly, whose common object was to ommit murder of Prithvi Singh and thereafter of Onkar Singh, other appellants also inflicted injuries to Prithvi Singh. Hence they are also vicariously liable and have been rightly convicted for the offence under Section 302 read with S. 149, I.P.C. for the murder of Prithvi Singh.
27. From the prosecution evidence, it has been well established beyond reasonable doubt that appellant Kishan Singh had deliberately inflicted a 'Dharia' blow on the head of Onkar Singh, while Ramesh war Singh inflicted the 'Dharia' blow on his face and multiple injuries were also caused on the chest of Onkar Singh, whose internal effect suited in the fracture of Onkar Singh's 4th to 7th ribs and laceration of his right lung and damage of pleura. Dr. Jugtawat has deposed that the injry No. 28 with its internal effect was sufficient in the ordinary course of nature to have caused death. He has further deposed that the shock and haemorrhage caused by the injuries "sustained by Onkar Singh was sufficient in the ordinary course of nature to have caused death. The appellants after committing the murder of Prithvi Singh had gone to the place, where Roop Singh, Onkar Singh and Shaitan Singh were coming from their fields, that they had shouted that now it was their turn and that they would finish them, that Onkar Singh tried to hide inside the 'Bara', but the appellants dragged him out and then inflicted multiple injuries to him by 'Dharias' and lathies causing as many as six incised wounds, 4 lacerated wounds and 21 bruises and abrasions. Thus, their intention to commit the murder of Onkar Singh was manifest. Since they were the member of the unlawful assembly, the learned Sessions Judge has not committed any illegality in convicting them under Section 302 read with Section 149, I.P.C. for the murder of Onkar Singh.
28. Shri Garg has relied on the case of Choutha Ram v. State of Raj, 1994 Cri LR (Raj) 604. In that case the appellants were convicted for the offence under Section 302/34, I.P.C. The deceased had received 72 injuries caused by lathies. The Medical Jurist deposed that those injuries were likely to cause death. The conviction was reduced to the offence under Section 304 Part-11/34, I.P.C. In that case the injuries were not inflicted on the vital parts of the deceased, but in the case on hand, injuries to Prithvi Singh as also to Onkar Singh have been inflicted on their vital parts also. Therefore, this case is of no avail and it does not help the appellants.
29. In our considered opinion, the learned Sessions Judge has correctly discussed, analysed and evaluated the prosecution evidence recorded in this case and has not committed any illegality either law or fact in convicting the appellant Khinv Singh for the offence under Section 302, I.P.C, and other appellants for the offence under Section 302/149, I.P.C, for the murder of Prithvi Singh and in convicting all the appellants for the offence under Section 302/149, I.P.C. for the murder of Onkar Singh. Therefore, the impugned judgment does not warrant any interference.
30. In the result all the three appeals are hereby dismissed and the conviction and sentences of the appellants are hereby maintained. The Jail authorities be informed accordingly.