Rajasthan High Court - Jaipur
Shravan Ram And 5 Ors. vs State Of Rajasthan on 22 August, 2001
Equivalent citations: 2002(2)WLN65
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT Jagat Singh, J.
1. Both these appeals have been filed Under Sub-section (2) of Section 374, Cr.P.C. against a common Judgment dated 2nd May, 1998, delivered in Sessions Case No. 20 of 1996 by Sessions Judge, Merta. There being common questions of law and facts involved, both these appeals are disposed of by this common judgment, copy of which shall be retained in each file.
2. Necessary facts as made out from the prosecution evidence are that on 1st May, 1996, at about 11 PM in the night, Dharu Ram went to his well to irrigate the field as electric power supply has resumed at that time and it was his turn to irrigate the field. The well was not far off from his house and at the time when he left the house, PW-3 Gorli & PW-4 Bhanwari, being sisters, were present in the house, along with PW-1 Kelki. After about half an hour, these ladies heard cries and commotion from the well, upon which PW-1 Kelki left for her house to inform her father-in-law whereas Gorli and Bhanwari went to the site where they saw Shravan Ram, Megha Ram, Ramkaran, Tulcha Ram, Ugma Ram, Hanuman son of Mewa Ram and few others, inflicting Lathi/'Gandasi' blows on the person of Dharu Ram. Mst. Gorli tried to intervene but was pushed away, first by Hanuman and second time by Ugma Ram, when Dharu Ram fell unconscious, accused party left the place of occurrence. The seriously injured Dharu Ram was brought to the house by PW-3 Gorli and PW-4 Bhanwari.
3. In the meantime, PW-1 Kelki went to her house and informed her father-in-law PW-14 Harji, upon which Harji Ram went on roof of the house and cried for help. By that time, Dharu Ram was brought to his house in seriously injured condition.
4. The occurrence took place in the fields of village Bagod where 'Dhani' of not only deceased but also of witnesses and accused persons is situated. The well where the occurrence took place is jointly owned by the complainant party and the accused party, being descendants of common ancestor. Though Dharu Ram was taken on a tractor to village Bagod for immediate treatment but before reaching there, he passed away and therefore, was through back to his house.
5. PW-2 Ganesh Ram, who is father of accused Hanuman and uncle of deceased, went to Police Station, Peelwa and lodged a written report Ex.P./1 at 3 AM. It was cryptic and no details of the crime was mentioned in it, therefore, PW-21 Banney Singh, SHO along with his staff, after making entry in the daily diary Ex.P/50, proceeded for the place of occurrence, where at 4 AM Ex.P./16 'parcha bayan' of PW-3 Gorli was recorded by him. On the basis of this parcha bayan, FIR was registered.
6. Post mortem on the dead body was done by PW-8 Dr. Pradeep Sharma vide Ex.P./17. Site plan map of the place of occurrence Ex.P./4 and site-details ('Halat Mauka') Ex.P./5 were prepared immediately thereafter. The blood smeared soil was also seized and sealed vide Ex.P./9. A gold Hanuman strip, allegedly belonging to deceased, was recovered from the site vide Ex.P./10 and sealed. A broken bangle, allegedly belonging to PW-3 Gorli, was also recovered from the site vide Ex.P./11 and sealed then and there. Blood stained clothes of the deceased were seized and sealed vide Ex.P./12, Blood stained clothes of PW-3 Gorli & PW-4 Bhanwari were also seized and sealed vide Exs.P./13 and P./14 respectively. A bangle from the hand of Gorli was also seized and sealed vide Ex.P./15 to compare the same with broken bangle recovered vide Ex.P./11.
7. Accused appellants were put under arrest. Accused Hanuman S/o Ganesh had a bite injury on his left arm, therefore, he was medically examined by PW-9 Dr. Kishan Ram who proved his injury report Ex.P. 18. Ugma Ram, accused appellant, was also having 4 injuries on his person and therefore, he was also examined by PW-10 Dr. Rajendra Kumar vide injury report Ex.P./19. Accused appellants gave voluntary disclosure information under Section 27 of the Evidence Act and each of them got recovered Lathis, which were sealed at the time of seizure. Blood stained clothes of some accused were also seized and sealed. Thereafter, these 7 accused appellants along with 7 acquitted accused persons were challenged before the trial court. These accused appellants were charged under Sections 147 and 302/149, IPC whereas remaining 7 acquitted accused persons were charged under Section 120-B, IPC only. All the accused persons pleaded not guilty and claimed trial, therefore, prosecution examined 21 witnesses and exhibited 55 documents. In the statements given under Section 313, Cr.P.C., accused appellants denied all the incriminating evidence appearing against them and plea of alibi was taken by Megha Ram and Ramkaran. Six witnesses were examined in defence. Thereafter, learned trial court convicted and sentenced accused appellants, as stated above, mainly relying upon testimony of eye-witnesses PW-3 Gorli and PW4 Bhanwari, supported by testimony of PW-8 Dr. Pradeep Sharma as also blood stained Lathis and clothes recovered at the instance of accused appellants.
8. learned Counsel for appellants raised manifold grounds before us, chiefly contending that place of occurrence was not the well, as shown in the site plan map Exs.P4 and P-5 but somewhere else. Similarly, PW-3 Gorli and PW-4 Bhanwari were not present at the place of occurrence and it was a blind murder and that accused appellants have been falsely implicated due to enmity. Both the eye-witnesses were closely related to deceased and their testimony, without corroboration from independent witnesses should not have been relied upon. On the contrary, learned Public Prosecutor has supported the impugned judgment. We have given our careful consideration to the rival contentions.
9. The homicidal death of Dharu Ram is not disputed before us and same stands proved not only by the testimony of prosecution witnesses but also by the medical evidence of PW-8 Dr. Pradeep Sharma, who did autopsy on the dead body and prepared post-mortem report Ex.P.17, According to this witness, following 19 ante-mortem injuries caused by blunt weapon were found on the person of deceased:
1. lacerated wound 3 cms x 1 cms occipital region, bone deep.
2. lacerated wound 5 x 2 cms right parietal region of scalp & fracture of right parietal bone
3. lacerated wound 4 x 2 cms left parietal of scalp & fracture of left parietal bone
4. lacerated wound 2.5 x 1.5 cms. left supra-orbital region of scalp, bone deep
5. lacerated wound 3 x 2 cms right supra-orbital region.
6. bruise 25 x 7 cms. back transversely placed over L1 spine
7. bruise 13 x 3 cms. left Lumbar region of back-transverse
8. bruise 10 x 3 cms over left saoral joint.
9. bruise 10 x 3 cms over left glutcal region
10. lacerated wound 3 x 2 cms right ear
11. 2 bruises 20 x 3 cms on back transversely placed over T7 & T9 spine
12. bruise 40 x 3 cms transverse on back over T4 spine
13. bruise 18 x 8 cms left shoulder
14. bruise 8 x 8 cms. left supra-scapular region
15. bruise 20 cms long around left elbow joint
16. puncture wound 2 in numbers 2 x 3 cms left elbow lateral aspect & fracture of elbow joint
17. bruise black 20 x 8 cms. around right elbow joint & 2 fracture wound on lateral aspect.
18. bruise red blue long placed over right frumbar region of abdomen.
19. 3 bruises 5 x 3 cms right knee and legs Injury No. 2, which was a lacerated wound, 5 x 2 cms. on right parietal region of head with fracture of right parietal bone; individually was sufficient in the ordinary course of nature to cause death. According to Doctor, the injured may have died within 6 to 12 hours of causing of the injuries. This witness has not been cross-examined much and therefore, homicidal death of Dharu Ram has rightly been held proved by the trial court.
10. So far as implication of accused appellants in the crime is concerned, the occurrence took place at about 11 PM on 01.5.1996 when electric power supply was resumed and deceased left his house for the well to irrigate his field. The 'Dhani' or the deceased was about 100 yards from the well, as shown in the site plan map Ex.P-4 and proved by PW 21 Banney Singh, SHO. PW-3 Gorli has also stated the distance of well from her house about 50 'Panwda' (one Panwda-5 feet approx.) in her cross examination. Though suggestion was made to her for the distance to be 100-150 'Panwda' but same was denied by her. In such circumstances, at the dead of night, the hearing of cries and commotion by Dharu Ram from the well upto 'Dhani' or deceased has been rightly found established.
11. PW3 Mst. Gorli and PW-4 Mst. Bhanwari are sisters and PW-1 Kelki was married to yunger brother of deceased and therefore, possibility of these three women witnesses remaining at the house of Gorli at the time of occurrence can also not be ruled out. When electric power supply in three-phase resumed at about 11 PM, PW-3 Gorli and PW4 Bhanwari as also PW-1 Kelki, had deposed in unison that Dharu Ram left his house for the well, to irrigate the field. All the three witnesses also deposed in unison that after-about one 'Ghadi' (40 minutes approx.) voices of "Mare re, Mare re" were heard from the site of well whereupon PW-1 Mst. Kelki went to her house, to inform his father-in-law whereas PW-3 Gorli and PW-4 Bhanwari rushed to the place of occurrence and found all the 7 accused appellants giving beating by their Lathis to Dharu Ram. Mst Gorli went to the rescue of her husband and fell upon him but was removed by Hanuman accused. When she again tried to intervene, she was thrown away by Ugma Ram accused. PW 3 Gorli again deposed that when accused Hanuman as also Ugma Ram removed her, she gave teeth-bite on their hands. Both these witnesses have been cross-examined at length but nothing substantial affecting their testimony could be elicited out of it. They have neither been contradicted by their previous statement nor there is any inter se material contradiction in their testimony.
12. Ex.P-16 is 'parcha bayan' or PW-3 Mst Gorli, which was recorded at about 4 AM as soon as PW-21 Banney Singh, SHO reached at the spot, which contains full details of the prosecution story and Ex.D.2 is the police statement given by her, immediately thereafter. No material contradiction was pointed out either in Ex.P.-16 or in Ex.D2. In Ex.D2, solitary contradiction pointed out was at place C to D, wherein it is mentioned that accused appellants gave blows from their Lathis and axes whereas in the court testimony, causing injuries by axe has not been stated. Similarly, in Ex.P-16. except Hanuman son of Ganesh Ram, 6 appellants were named and it is also mentioned that there were some others also. This witness was confronted to portion A to B in which "some others" were also mentioned, who participated in the crime; which was denied by this witness. No other contradiction in Ex.D2 or Ex.P./16 could be confronted to her.
13. Name of accused appellant Hanuman S/o Ganesh is neither mentioned in 'parcha bayan' Ex.P/16 nor in Police statement Ex.D2 and for the first time, he has been implicated by PW-3 Gorli in her court testimony, therefore, at the best it can be said that Hanuman S/o Ganesh may have been implicated falsely. This accused had been arrested on 5.5.1996 vide Ex.P./15. He gave a voluntary disclosure statement Ex.P.26 on 6.5.1996 to get recover his Lathi and shirt and got the same recovered vide Ex.P./62 on that day, which were seized and sealed then and there and sent to FSL with seals intact. However, FSL report Ex.P.64 also indicates that shirt and Lathi recovered at the instance of accused Hanuman S/o Ganesh and marked as 'O', were not found stained with human blood. This circumstance also fortifies that perhaps Hanuman S/o Ganesh may not have participated in the crime. Father of this accused Ganesh Ram (PW-2), has lodged FIR Ex.P./1 on 2.5.1996 at 3 PM, which being cryptic was recorded in the daily diary. Had his own son Hanuman participated in the crime, Ganesh Ram may not have gone to the Police Station. The only circumstance available in file against accused Hanuman S/o Ganesh is that immediately after arrest, he was examined by PW-9 Dr. Kishan Ram, who prepared injury memo Ex.P/18 and found a teeth-bite on his left arm. It seems that in the court testimony, Gorli came to know that Hanuman S/o Ganesh is having a teeth-bite and therefore, she may have stated in the court testimony about causing of the same to him by her. Had Hanuman S/o Ganesh been seen at the site, there was no cause not to have mentioned his name in the 'parcha bayan' Ex.P./16 or in the police statement Ex.D2. Learned trial court seems to have over-locked all these deficiencies. Therefore, accused Hanuman S/o Ganesh, according to us, deserves benefit of doubt.
14. So far as remaining accused appellants are concerned, they have been named in Ex.P./16 'parcha bayan' which was recorded immediately after the occurrence and have been proved so by PW-3 Mst. Gorli and PW-4 Bhanwari. As stated above, both these witnesses have cross-examined at length but nothing material could be elicited out of it, affecting their testimony adversely, the Apex Court has time and again held that evidence of a closely related witness does not suffer from any infirmity as such but courts are required, as a rule of prudence nor as a rule of law that evidence of such evidence should be scrutinized with little care. Once that approach is made and court is satisfied that evidence of such a witness have a ring of truth, such evidence can be relied upon even without corroboration. In this respect, Pyara Singh v. State of Punjab 1977 Cr.L.R. (SC) 466; State of UP v. Sughad Singh 1978 CAR 62 and Hukam Singh v. State of Rajasthan among others can be referred to. Thus, simply because these witnesses were closely related to deceased, their testimony can not be discarded.
15. Two pieces of broken bangles were seized and sealed by PW-21 Banney Singh from the place of occurrence on 2.5.1996 vide seizure memo Ex.P./11. Similarly, sample bangle from the hands of Mst. Gorli was also seized and sealed vide Ex.P./15 and both the packets with seals intact were sent to FSL for chemical examination and were found similar vide FSL report Ex.P./63. This circumstance also proves the presence of Mst. Gorli at the site, at the time of occurrence.
16. A Hanuman gold strip was also seized from the site by PW-21 Banney Singh, SHO vide seizure memo Ex.P./10 and sealed then and there. This article belonged to deceased and has been proved by PW-3 Mst. Gorli. This circumstance also proves the place of occurrence.
17. The blood-stained clothes of PW-3 Mst. Gorli and PW-4 Mst. Bhanwari were seized and sealed vide seizure memos Ex.P/13 & P.14 respectively. These were sent to FSL with seals intact and were found having stains of human blood vide FSL report Ex.P./64. This circumstance also proves the presence of these witnesses at the place of occurrence.
18. PW-11 Mst. Kelki, though was not an eye-witness to the occurrence, yet has supported he prosecution version by and large because she was at the house of Mst. Gorli (her 'Devrani' - wife of husband's younger brother) when occurrence was taking place at the well and Gorli and Bhanwari left for the site of occurrence and she left for her house to inform her father-in-law PW-14 Harji Ram. Immediately thereafter, Harji Ram went to roof-top and cried for help. Though PW-1 Kelki in her court testimony has stated that thereafter she again went to house of Gorli where she was disclosed names of assailants, however, that fact is missing in her police statement Ex.D1, according to which she went to house of deceased in the morning. In such circumstances, she corroborates the prosecution version only to this extent that at the time of occurrence Kelki was also at the house of Gorli along with Bhanwari and in their presence Dharu Ram left for the well and after some time cries of Dharu Ram were heard, upon which Gorli and Bhanwari went to the well.
19. PW-14 Harji Ram has also corroborated version of her daughter-in-law Kelki and has stated that upon coming to know of the occurrence from Kelki, that Dharu Ram is being given beating at the well, he went to roof-top and called Ganesha Ram for help whereupon he himself went to house of Dharu Ram. There he saw Dharu Ram in seriously injured condition. He has again deposed that Ganesh Ram reached to house of deceased prior to him and all of them took seriously injured Dharu Ram to village Bagod for treatment. However, he died within half an hour while on the way. Harji Ram again deposed that he along with Ganesh told Sarpanch of the village that Dharu Ram has been killed by persons having share in the well. This witness also went along with PW-2 Ganesh to the Police Station where Ex.P./1 FIR was lodged. It has been stated by PW-2 Ganesh Ram as also PW-14 Harji Ram that names of assailants were not known to them and therefore, they were not mentioned in Ex.P./1. It was Gorli who knows names of the assailants and the manner in which occurrence took place. The submission of the learned Counsel that immediately after the occurrence at the house of deceased, names of assailants must have been told by Mst. Gorli to Ganesh Ram and Harji Ram if she knew them; is not tenable because Harji Ram and Ganesh Ram were 60 years old and age of deceased was about 35 years only and they were closely related with each other and therefore, Mst. Bhanwari and Gorli, being Parda Nasheen' ladies, by custom, were not having speaking terms with persons older than their husbands. Ganesh Ram and Harji Ram have stated that they immediately left for the Police Station to lodge the report and they were not knowing the names of the assailants. After careful scrutiny of their evidence, they have rightly been found of sterling worth by the trial court.
20. Testimony of these witnesses has been corroborated by PW-8 Dr. Pradeep Sharma, who conducted post mortem on the dead body and found 19 ante-mortem injuries caused by blunt weapon on the person of deceased, which were sufficient in the ordinary course of nature to cause death. Though this witness in the cross-examination stated that injury No. 2 was itself sufficient individually, to cause death and it may have been caused by a pointed weapon because injury was penetrating one. When the Doctor has opined it to be a lacerated wound and same can be caused by a Lathi blow, simply because injury No. 2 was 5x2 cms in size, a lacerated wound on right parietal region of head with fracture of right parietal bone; that by itself will not be sufficient to opine that this injury can not be caused by a Lathi. It is just possible that lathi causing this injury may have some pointed angle in it. Be that as it may, this anomaly is not sufficient to discard the testimony of eye-witnesses PW-3 Mst. Gorli and PW-4 Mst. Bhanwari.
21. In addition to above incriminating evidence, there were evidence of recovery also. Accused appellant Shravan Ram was arrested on 2.5.1996. Though Lathi and shirt were recovered at his instance and seized and sent with seals intact to FSL, however, FSL report Ex.P./64 does not show presence of human blood on those articles, therefore, this recovery does not connect accused appellant Shravan with the crime. Similarly, at the instance of Tulchha Ram, Lathi was recovered, seized and sealed and sent to FSL for chemical examination but that too was not found stained with human blood vide FSL report Ex.P./64. Accused appellant Ramkaran also gave a voluntary disclosure statement and got a Lathi recovered, which also was not found stained with human blood. However, that by itself is not sufficient to discard the testimony of eye-witnesses PW-3 Gorli and PW-4 Bhanwari. At the most it can be said that circumstantial evidence of recovery of weapons of offence is not connected with the crime. It is just possible that Lathi so recovered may be having not much stains of blood on them and/or blood may have disintegrated by the time chemical examination took place.
22. With regard to remaining accused appellants, 'Dhoti' and 'Baniyan' recovered at the instance of accused Tulchha Ram vide Ex.P./25 were found stained with human blood vide FSL report Ex.P./64. This accused was arrested vide arrest memo Ex.P./22 on 2.5.1996 and gave disclosure statement Ex.P./57 and wanted to get recover his white terricot dhoti and white 'Baniyan' and did get recover the same vide Ex.P./25 in the presence of panch-witnesses PW-13 Mohan Ram and PW-16 Jeevan Ram, which were seized and sealed then and there. This recovery was proved not only by these panch-witnesses but also by PW-21 Banney Singh, SHO. These recovered items were sent for chemical examination with seals intact through PW-19 Sultan Khan, whom these articles were given by PW-20 Jaikishan, incharge of the Malkhana. When immediately after the occurrence, worn clothes of this accused appellant were found stained with human blood and he was not having any injury on his person and when he was not able to explain it in his statements given under Section 313, Cr.P.C. as to how his clothes get stained with human blood, it can be safely stated that he received blood stains at the place of occurrence. Thus, this circumstance also implicate accused Tulchha Ram with the crime.
23. Megha Ram accused appellant was put under arrest on 7.5.1996 vide arrest memo Ex.P./43. He gave voluntary disclosure statement Ex.P./58 on the same day and got recovered a Lathi vide Ex.P./30 in the presence of panch-witnesses Jeevan Ram and Chhotu Ram. The Lathi so recovered was seized and sealed and vide FSL report Ex.P./64, same was found stained with human blood.. Therefore, this circumstances is also connecting accused Megha Ram with the crime.
24. Accused appellant Ugma Ram was put under arrest on 7.5.1996 vide arrest memo Ex.P.16, who gave voluntary disclosure statement Ex.P./61 and got a Lathi recovered on the same day vide Ex.P./29 in the presence of panch-witnesses Chhotu Ram and Jeevana Ram. The Lathi so recovered was also sent to FSL with seals intact and found stained with human blood vide FSL report Ex.P./64. Thus, this circumstance also implicates accused appellant Ugma Ram in the crime.
25. Accused appellant Hanuman S/o Mewa Ram was also put under arrest on 7.5.1996 vide arrest memo Ex.P./15, who gave voluntary disclosure statement Ex.P./59 and wanted to get recover a Lathi and shirt, which were got recovered vide Ex.P./28 in the presence of attesting witnesses Jeevana Ram and Chhotu Ram. He got Lathi as also shirt recovered from his residential house, which were seized and sealed then and there and sent to FSL with seals intact for chemical examination. These articles were also found stained with human blood vide FSL report Ex.P./64. Thus, this circumstance implicates the accused appellant Hanuman S/o Mewa Ram in the crime.
26. In addition to that, Ugma Ram, at the time of arrest, was having a bite injury on his hand for which he was medically examined by PW-12 Dr. Rajendra Kumar, who prepared injury report Ex.P./19, according to which three abrasions and bruises were found on the person of accused Ugma and for which he has not given any explanation. This injury also corroborates the ocular version of PW-3 Mst. Gorli who stated that when she fell upon her husband to save him from blows, she was forcibly removed by Ugma Ram and in the process she gave a teeth-bite on his hands.
27. Motive of the crime was enmity and has been mentioned in the 'parcha bayan' Ex.P./16 and has been proved by PW-3 Mst. Gorli. Even some of the accused appellants have also, in their statements under Section 313, CrPC, stated that there was enmity and litigation with Dharu Ram. Ex.D.9 is copy of FIR No. 21/1996 and Ex.D10 is copy of FIR No. 29/1996 of Police Station, Peelwa, which prove the litigation and enmity between the deceased and accused appellants, who are descendants of one ancestor and are cousin brothers.
28. The submissions of the learned Counsel were that the place of occurrence has been changed which affects the prosecution version adversely and no reliance can be placed upon it. According to learned Counsel, as per site plan map Ex.P-4 occurrence has not taken place at the well shown at place 'A' in the site plan but was scattered from place A to E, within a distance of about 100 yards. learned Counsel has relied upon decision of Apex Court in Mehraj Singh v. State of U.P. 1994 SC(Cr) 1390, wherein there was no blood stains at the place of occurrence nor were there blood trails from the occurrence to the place where dead body was found and in the circumstances, the Apex Court was of the view that the occurrence did not take place in the manner suggested by the prosecution and gensis of fight has been suppressed from the court. Similarly, in Beer Singh v. State of U.P. 1977 CrLR (SC) 385, prosecution has not been able to show that there was any blood at the place where PW-2 fell down which raised a reasonable inference that he may have been assaulted somewhere else and once that is so then case regarding assault on the deceased at the place of occurrence automatically fails. In Nihal Singh v. State of Rajasthan 1986 RLW 128, a Division Bench of our own High Court, in the facts and circumstances involved therein, was of the view that from the investigation, occurrence took place inside house of Nihal Singh whereas testimony of eye-witnesses shows occurrence to have taken place out of house of Pat Ram and the place of occurrence seems to have been changed, rendering prosecution story doubtful. Similarly, in Babu Singh v. State of Rajasthan 1978 RCC 267, a Division of our own High Court found that absence of blood on the alleged scene of occurrence is suggestive of the fact that prosecution witnesses have deliberately changed scene of occurrence, with deliberate motive to deprive the accused of plausible defence.
29. In the matter at hand, the factual situation is very much different because PW-21 Banney Singh, SHO and Investigating Officer, who prepared site plan map Ex.P/4 and P/5, has unequivocally deposed that there were signs of dragging and also trails of blood from place 'A', where well was situated, upto place 'E', where two cots were lying. The distance between A and E was about 100 yards. 'Rijka' (fodder) of the deceased was also at place 'J', which was near place marked 'E'. It seems that deceased may have been given beating and dragged from A to E. That does not indicate the defence theory of occurrence to have taken place somewhere else. No suggestions were given to PW-21 Banney Singh that the occurrence has taken place not at the place shown in Ex.P/4 but somewhere else nor suggestion was given either to PW-3 Gorli or PW 4 Bhanwari or any other witness to this effect. The accused in their statements given under Section 313, CrPC as also the defence witnesses have not deposed that occurrence took place at some other place and in some other manner. Therefore, this plea of the learned Counsel is also untenable being not supported by any evidence available on the file.
30. For plea of alibi, DW-1 Yusuf and DW-2 Khinya Ram were examined, to prove that accused appellant Megha Ram was with them on the night of occurrence. Similarly, DW-4 Dhula Ram was examined to prove that on the date of occurrence, PW-14 Harji Ram was not at his house but was at Raon-ki-Dhani. DW-5 Laxman was examined to prove that on the night of occurrence, Dharu Ram deceased told him that he was going to sleep in the 'Bari' near the well and DW-6 Shodana Ram was examined to prove that 5-6 months prior to occurrence, accused appellant Ramkaran was at Kishangarh, as daily wager. The trial court has rightly discarded their testimony because it is not difficult to persuade some persons to depose for the accused persons. Unless and until defence evidence affects testimonial value of the eye-witnesses, same can not be given any credence. Suggestion given to PW-21 Banney Singh, SHO and Investigating Officer with regard to plea of alibi have been denied by him. No suggestion was given to PW-3 Gorli and PW 4 Bhanwari in the cross-examination that Megha Ram and Ram Karan accused appellants were not present at the site and have gone to some other place.
31. Though it was not possible for PW-3 Gorli and PW 4 Bhanwari to specifically attribute fatal injury No. 2 to any accused because when so many persons simultaneously cause blows, it is not possible to visualize each blow as to the sequence and the part of body it fell upon; yet that by itself does not affect the nature of offence as all the accused appellants were charged and convicted under Section 302 and read with Section 149 IPC. In R.C. Reddy v. State of Andhra Pradesh and Bolinudi v. State of A.P. (1994) Supp 3 SCC 732, the Apex Court held that common object to commit murder is inferable from the nature of weapons used, manner and sequence of attack, number and nature of injuries so caused, setting and surroundings under which occurrence took place. The fact that all the accused persons dragged and surrouned the deceased and inflicted injuries with their respective weapons, was sufficient to conclude that they had common object to kill the deceased.
32. In the matter at hand, the six accused appellants were named as assailants in FIR Ex.P./16 ('parcha bayan') and their complicity in the crime is proved by PW-3 Mst. Gorli and PW-4 Mst. Bhanwari. All of them attacked simultaneously and caused Lathi blows to Dharu Ram. The nineteen blunt injuries found on dead body by PW-8 Dr. Pradeep Sharma is testimony in itself that the common object was to commit murder of Dharu Ram.
33. The trial court has assessed and analysed the prosecution evidence in proper perspective and has reached to a correct conclusion. We have also re-appreciated and reassessed entire evidence available on the file and have not found any discrepancy or contradiction in the testimony of prosecution evidence. According to us, PW-3 Gorli and PW-4 Mst. Bhanwari have withstood the test of cross-examination. The trivial discrepancies so pointed out were testimony to this fact that they were not tutored and have called a spade. There is intrinsic merit in their testimony and trial court has rightly held them of sterling worth. We are also of the view that implicit reliance can be placed upon testimony of these eye-witnesses because their testimony is not suffering from any infirmity or inherent inconsistency.
34. Consequently, appeal of Hanuman S/o Ganesh Ram is accepted. He is acquitted of all the charges. He is in custody and be released forthwith, if not required in any other case. The appeal of remaining accused appellants has no merit and stands dismissed. They are in custody an shall serve out the remaining part of the sentence. the first proviso to that section although after the close of the relevant previous year, it shall still be allowed as deduction and the case of the assessee has to be viewed in that light.