Rajasthan High Court - Jaipur
Kishna And Anr. vs State Of Rajasthan on 29 April, 1986
Equivalent citations: 1986WLN(UC)261
JUDGMENT Jas Raj Chopra, J.
1. This is an appeal against the judgment of the learned Additional Sessions Judge No. 2 Alwar dated 21-7-1975 whereby the learned Sessions Judge has held the accused Kishna and Amichand guilty of the offence under Sections 147, 302/149, 307/149, 325/149 and 323/149 and has sentenced each one of them to one year's rigorous imprisonment on the first count; to imprisonment for life and a fine of Rs. 500/- and in default of payment of fine to further undergo three months rigorous imprisonment on the second count; to 7 years rigorous. imprisonment and a fine of Rs, 500/-and in default, to undergo three months' rigorous imprisonment on the third count and to two years rigorous imprisonment and a fine of Rs. 200/-and in default, to undergo one months rigorous imprisonment on the fourth count and to three months rigorous imprisonment on the last count. Accused Amichand was further convicted under Section 148 IPC and sentenced to one year's rigorous imprisonment. All the substantive sentences were ordered to run concurrently.
2. Accused Ramjilal who also faced trial along with these accused-appellants has been acquitted by the learned lower court by giving him the benefit of doubt.
3. The facts of this case briefly stated are that two agricultural fields bearing Khasras No. 5192 and 5193 measuring 34 bighas and 5 bighas respectively are situated in village Rampura, Tehsil Bansur, District Alwar. Their possession was ordered to be delivered to deceased Gyarsilal by an order of the Sub-Divisional Magistrate. The Tehsildar ordered the Patwari to hand-over the possession. PW 16 Patwari Prabhudayal along with deceased Gyarsilal, PW 1 Sunderlal, PW 2 Ramprasad, PW 4 Mohansingh, PW 5 Ghasi, PW 7 Chhaju, PW 6 Moti, PW 8 Chhitar, PW 12 Kanhaiya and PW 19 Bagirath went to Kalyanpura to deliver the possession to Gyarsilal on July 5, 1971 at about 9 a.m. It is alleged that some 30-35 persons armed with Pharsis, knife, daggers and lathis have assembled at the place of the occurrence and they resisted the delivery of the possession. The Patwari read over the order of the Tehsildar to them in which it was mentioned that the possession of the disputed land should be handed over to Gyarsilal but the persons present there told him that they will not allow the delivery of the possession. It is alleged that on this, Patwari along with Gyarsilal and others tried to go back from the place of the occurrence and at that time, some of the persons from the side of the accused told that enemies have come and so, they should not be spared. On this exhortation, Amichand who was armed with a Kassi struck a blow on the head of Gyarsilal whereas Kishna who was armed with a knife and dagger inflicted a blow on the back side of Gyarsilal and then all others started beating him with knives, Pharsis and lathis. PW 1 Sunderlal intervened and he too, was seriously injured. Some injuries were even received by the Patwari PW 16 Prabhudayal. After the incident, injured Gyarsilal and Sunderlal were shifted to the General Hospital, Alwar where their injuries were examined by Dr. P.S. Agarwal. Since the condition of the injured Gyarsilal was fast deteriorating, the Doctor attending Gyarsilal informed the Head Constable PW 14 Kali Shanker to record his dying declaration. He recorded his dying declaration at 6.30 p.m. in the presence of Dr. P.S. Agrawal as well as PW 3 Manoharlal and PW 20 Nathuram. As his condition showed no signs of improvement, the second dying declaration was got recorded by the Magistrate Shri Jagdish Narain on the same day, which has been marked Ex. P. 10. Gyarsilal succumbed to his injuries on that very day at about 10.30 p.m. His postmortem examination was got conducted by Dr. P.S. Agrawal at 9 a.m. on 6-7-1971. The other injured Sunderlal was medically examined at 4.40 p.m. on 5-7-1971. It is alleged that the injuries of PW 16 Prabhudayal Patwari were also examined by the Doctor but since his injury report has not been produced on record, are not concerned with that.
4. PW 2 Ramprasad lodged a written report Ex. P. 3 and on the basis of which, a formal FIR Ex. P. 20 was drawn. The written report Ex. P. 3 was presented at Police Station Bansur at about 2.45 p.m. on 5-7-1971 in which names of the accused persons and their companions and some of the witnesses have been mentioned. The case was registered and the police reached the spot and conducted the spot investigations. 19 accused persons were arrested and a challan was put against them. All those 19 accused have faced their trial in the Court of learned Sessions Judge, Alwar in Sessions case No. 80 of 1972, which was decided by the learned Sessions Judge vide his Judgment dated 5-3-1973. The learned Sessions Judge acquitted all the 19 accused-persons by giving them the benefit of doubt.
5. On appeal by the State,a Division Bench of this Court consisting of Hon'ble Justice M.C. Jain and Hon'ble Justice S.C. Agrawal upheld the judgment of acquittal rendered by the learned Sessions Judge vide its judgment dated July 6, 1983 in D.B. Cr. Appeal No. 435 of 1973. However, when this appeal was pending in this Court, these three accused persons were arrested on 6-4-1973 and a charge sheet was filed against them in the Court of Munsif Magistrate, Behror, from where, the case was committed to the court of learned Sessions Judge, Alwar, who transferred the case to the court of learned Additional Sessions Judge No. 2, Alwar for trial.
6. All these three accused-persons were charged with the offence under Section 147, 148, 302, 302/149, 307/149, 332, 332/149, 325, 325/149, 323 and 323/149. They did not plead guilty to the charges and claimed trial whereupon the prosecution examined in all 21 witnesses in support of its case. The statements of the accused persons were recorded under Section 313 Cr. PC. They examined two witnesses in their defence.
7. After hearing the parties, the learned lower court decided the case as aforesaid and hence, aggrieved against this judgment of conviction, these two accused-appellants have preferred this appeal before this Court.
8. We have heard Mr. M.M. Singhi, learned Counsel for the accused-appellants and Mr. N. Khan, learned Public Prosecutor for the State. We have carefully gone through the record of the case.
9. The learned lower court held that these two accused along with Murli, Jairam, Bhoria, Chhitar, Prabhati and Budha have taken part in the occurrence. It has further held that on the basis of the evidence on record, the prosecution has been able to prove that injury on the head of Gyarsilal was inflicted with a Pharsi by Amichand whereas injury in the abdomen from the back side of Gyarsilal was inflicted by sccused Kishna with a knife. It has placed implicit reliance on the first dying declaration of the deceased Gyarsilal recorded by PW 14 Kalishanker, which has been marked Ex. P.4. It has, however, discarded the version given by the deceased in his dying declaration recorded by PW 15 Jagdishnarain Mathur. However, taking recourse of the provisions of Section 149 IPC, it has held both these accused-appellants guilty of the offences under Sections 302, 307 and 325 IPC. Injuries on the abdomen of deceased Gyarsilal have been found to be dangerous to life and it was because of these injuries that Gyarsialal has died and so, this injury was made the basis for conviction under Section 302 IPC. Separate convictions for the same injury should not hove been recorded under Sections 307/149 and 325/149 IPC. However, when this case was decided by the learned lower court, the appeal filed be the State against the acquittal of 19 accused-persons recorded by the learned Sessions Judge was sub-judice before this Court and that appeal has now been decided by this Court on 6-7-1983.
10. Mr. M.M. Singhvi, learned Counsel appearing for the accused-appellants submitted that most of the witnesses who were examined in this case were also examined in the earlier trial of 19 accused persons of the same incident and this court, while appeciating the evidence in that case vide its judgment dated 6-7-1983 has held that PW 2 Ramprasad and PW 5 Ghasi are not the eye witnesses of the occurrence and that no reliance can be placed on their testimony about the specific acts of the accused-persons. This court further observed that PW 7 Chajju and PW 8 Chittar were also not eye witnesses of the occurrence. One Jagan was also examined in that case as an eye witness but he too has been disbelieved and he has not been examined in this case. The prosecution has, however, examined some new eye witnesses of the occurrence in this case. They are PW 4 Mohansing, PW 6 Moti, PW 12 Kanhaiya and PW 13 Harisingh. All these witnesses were not examined as eye witnesses in the earlier proceedings against those 19 accused-persons who happened to be the companion of these three accused-persons. Mr. Singhvi has, therefore, submitted that although the acquittal of those 19 accused-persons cannot act as res-judicata regarding trial of these three accused-persons but this court is bound to take into consideration the findings of the learned Sessions Judge and the Divisioa Bench of this Court regarding appreciation of evidence. In this respect, he placed reliance an Chandubhai Shamabhai v. State of Gujarat wherein their Lordships of the Supreme Court observed as under:
The ocular evidence consisted of the testimony of Bai Mani (PW 1) Bai Laxmiben (PW 5) and Bai Shantaben (PW 6) who are the widow, the daughter and the brother's wife respectively of the deceased. Both the court found that this testimony was unreliable in numerous particulars and it was on that account that the co-accused of the appellant were acquitted in two stages.
We do not find that we can really distinguish the case of the appellant from that of accused Nos. 1 and 3 in so far as the unreliability of the ocular evidence is concerned.
In Bansilal v. State of Madhya Pradesh and Anr. , their Lordships of the Supreme Court held as under:
It appears that in the same case in respect of two other accused, this Court acquitted those accused persons by an order dated October 2, 1980 in Criminal Appeal No. 35 of 1976. On perusal of the judgment referred to above, we are satisfied that the case against the appellant as against the accused acquitted by this Court is exactly the same and this Court rejected the case of the prosecution in its entirety. There is thus no legal evidence to support the conviction. The appeal is accordingly allowed and the appellants acquitted.
In Manipur Administration v. Birasingh it has been ruled as under:
The rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). The rule is not the same as the plea of double joepardy or autrefois acquit. The rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It also does not present the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial.
Our attention was also invited to a decision of the Calcutta High Court reported in Subal Chandra v. Abdulla AIR 1926 Cal. 795 wherein one A was tried and acquitted. Such trial could not have operated as a bar in law to the issue of process against B who was neither tried nor acquitted in A's trial. However, their Lordships of the Supreme Court observed as under:
But although in such a case the plea of autrefois acquit would not be available to B, and the acquittal of A would not bar the issue of process against B, the fact that another person accused upon the same facts of having been implicated in the same offence has been acquitted may properly be taken into consideration by the Magistrate in determining whether upon the materials before him there is "sufficient ground for proceeding" to issue process upon the person against whom the complaint has been preferred.
11. It was further argued by Mr. M.M. Singhvi, learned Counsel appearing for the accused-appellants that the finding of fact based on appreciation of evidence arrived at by the Division Bench of this Court should not be disturbed unless the approach of the Division Bench was clearly erroneous, perverse or improper or has resulted in grave miscarriage of justice. In this respect, our attention was invited to State of J and K v. Hazara Singh 1980 (Supp) SCC 641. On the strength of this authority, Mr. Singhvi argued that PW 2 Ramprasad, PW 5 Ghasi, PW 8 Chhaju and PW 9 Chittar have not been believed by the Division Bench of this Court as alleged eye witnesses of the occurrence. For PW 5 Ghasi, the Division Bench has observed in its judgment that no reliance can be placed on her testimony about the specific acts of the accused-persons. It has also placed on reliance on both the dying declarations made by deceased Gyarsilal i.e. recorded by PW 14 Kalishanker and PW 15 Jagdishnarain Mathur. He submitted that the other witnesses examined in this case at the trial are those witnesses who were not examined at the earlier trial. He further submitted that one Jagan who was examined at the earlier trial has not been examined during the trial of these three accused-persons and so, that finding of fact arrived at as against those 19 accused persons although will not operate as as a res judicata but as that finding of fact is based on appreciation of evidence, it should not be lightly disturbed.
12. Mr. N. Khan, learned Public Procecutor appearing for the State has submitted that trial was conducted against those 19 accused persons and at that time, these three accused-persons were actually absconding. He further submitted that it was never brought to the notice of the Division Bench which decided D.B. Criminal Appeal No. 435 of 1973 that Investigating Agency proposes to put up a challan against these three accused-persons and, therefore the Division Bench observed that the main accused who are alleged to have inflicted sharp weapon injuries to Gyarsilal have not even been challaned and that ground has prevailed heavily with the Division Bench. The fact that these three accused-persons were actually absconding during trial of those 19 accused-persons and they could only be arrested after the decision of the learned Sessions Judge was never brought to the notice of the Division Bench which decided the earlier appeal. He further submitted that when the appeal against the acquittal of those 19 accused persons was heard by this Court, the fact that these three accused-persons have been arrested was not probably brought to the notice of the Division Bench. He argued that such a judgment will not operate as a res judicata against these three accused-persons, who have already faced trial and have been convicted by the learned lower court and, therefore, this appeal will have to be decided on merits on the basis of the appreciation of the evidence led in this case. It was further argued that the principle of autrefois acquit cannot be made applicable to the facts and circumstances of this case.
13. We have given our most earnest consideration to the rival submissions made at the bar. It is true that probably this fact was not brought to the notice of the Division Bench which decided D.B. Criminal Appeal No. 435 of 1973 that three accused-persons are also facing the trial before the learned Addl. Sessions Judge, No. 2, Alwar and, therefore, it has observed at 2-3 places in its judgment that the main accused-persons have even not been challaned. Be that as it may, so far as the appreciation of the evidence of the eye witnesses regarding the occurrence is concerned, finding of fact recorded by the Division Bench cannot be lightly disturbed even as regards these three accused-persons. In the light of the aforesaid legal position, now we deem it proper to appreciate the evidence led in this case.
14. So far as these two accused-appellants are concerned, it has been alleged against them that Amichand at the time of the occurrence was armed with a Pharsi and he struck a blow on the head of deceased Gyarsilal with that Pharsi causing a simple sharp weapon injury. It has been alleged against accused Kishana that he was armed with a knife and he thrusted the knife in the abdomonial region of deceased Gyarsilal from his back side and that injury actually proved fatal by which he met his death. The evidence led in this case is to be scrutinised in the light of these two allegations levelled against these two accused-appellants. First, we take up both the dying declarations of deceased Goarsilal. His first dying declaration was recorded at 6.30 p.m. by Head Constable Kalishanker (PW 14) in the presence of Dr. P.S. Agrawal (PW 11). This dying declaration has been proved by PW 14 Kali Shanker, PW 11 Dr. P.S.Agrawal PW3 Manoharlal & PW 20 Nathuram. In his dying declaration Ex. P4 deceased Gyarsilal has stated that accused Amichand has struck one Pharsi blow on his head and accused Kishna gave a knife blow in his back. Thus, both these sharp weapon injuries received by him are assigned to Amichand and Kishna.
15. PW 15 Jagdish Narain Mathur has recorded his dying declaration Ex. P 10 just before the death of deceased Gyarsi Lal, i.e., at about 9 p.m. He has proved the dying declaration Ex. 10. In Ex. P 10, deceased Gyarsi Lal has stated that accused Ami Chand, Kishna, Prabhati and Chhaju told that he should be beaten. He was then beaten by lathis, Pharsis and knives. Accused Prabhati and Kishna gave knife blows to him on his back whereas rest of them inflicted injuries to him by lathis. In Ex. P 4, he has named 20 persons as his assailants whereas in Ex. P 10 he has named 27 persons. In Ex.P4, he has mentioned that Ami Chand struck a blow by Pharsi on his head whereas in Ex. P 10, he has not at all stated that who struck a blow on his head. In Ex. 10, he has assigned the injury, which was received by him on his back and which was a punctured wound, to accused Prabhati and Kishna. In Ex.P 4, he has stated that accused Ami Chand Mam Raj and Prabhati were armed with Pharsi. As per the prosecution case, Kishna was armed with a knife and Ramji Lal was armed with a dagger. It has come in the evidence of the witnesses that from the place of the occurrence when this injured was carried to the Hospital, a lot of persons accompanied him and they were all the time talking with him and were discussing with him the incident and as to who has participated in the incident. PW 5 Manohar Lal has stated that certain persons who accompanied Gyarsi Lal from the place of the occurrence were sitting with him when the Police recorded his dying declaration Ex. P 4. PW 20 Nathu Ram who has put his signatures G to H on Ex. P 4 has stated that when Gyarsi Lal was brought to the Hospital Manohar, Sunder Lal, Babu Lal and Bhagirath and 7-8 more persons accompanied him. They were talking with Gyarsi Lal. They told Gyarsi Lal that he should name 20-25 persons of all the three villages. They also suggested the names of these accused persons and told him that he should name these three accused persons otherwise he will not get the land. The testimony of these two witnesses clearly shows that certain suggestions were made to Gyarsi Lal and he has named the accused persons on account of these suggestions. The persons who accompanied him were continuously talking with him. This fact is established from the fact that in Ex. P 4, he has named 20 persons whereas in Ex. P 13 he has named 27 persons. Even for his stomach injury which was fatal, he has assigned it to two persons in Ex. P 10 where as in Ex. P 4 he has assigned it to only accused Kishna. Under these circumstances, we are unable to place any reliance on these two dying declarations which are based on the suggestions made to the deceased Gyarsi Lal by the persons who accompanied him to the Hospital...that at the time when his real brother Gyarsilal was attacked, he got himself concealed behind a bush and raised no cries. He has stated in his examination chief that accused Amichand inflicted a Pharsi blow on the head of Gyarsilal whereas Ramjilal inflicted a blow on the back side of Gyarsilal with a dagger. Kishna too inflicted a blow on the back side of Gyarsilal at the same place. According to him, Pharsi blow on the head of PW 1 Sunderlal was also inflicted by Amichand. He has proved the FIR Ex. P. 3. In his cross-examination, he has stated that the FIR which he wrote to the Police was torn up by the Station House Officer and he got a fresh report written by a petition writer and he was made to sign that report and, therefore, as per his own admission, this FIR has not been given by him, In portion G to D of his police statement Ex. D. 2, he got it recorded that all the accused-persons started beating with Lathis, Pharsis knives and daggers but he cannot say who inflicted which blow to Gyarsilal. Now he has denied that he got any such statement recorded to the Police. In Ex. D. 2 he failed to get it recorded that accused Kishna and Ramjilal inflicted a dagger blow to Gyarsilal. He has given no reason for this omission. In portion A to B of Ex. D. 2 he has got it recorded that he ran away 60-70 Pawandas from the place of occurrence. Now he has stated that he only ran away 3-4 Pawandas. He has admitted that Prabhati was armed with a Pharsi. During this trial, he has stated that Amichand gave a Pharsi blow on the head of Gyarsilal whereas in portion C to D of Ex. D. 1 (his statement before the Sessions Judge in Sessions Case No. 80 of 1972), he got it recorded that Kishna and Ramjilal inflicted knife and dagger blows respectively to Gyarsilal whereas Amichand and Prabhati inflicted Pharsi blows to him. He has stated that he does not remember whether this statement was given by him before the Sessions Judge. It may be mentioned here that there was only one injury on the head of deceased Gyarsilal i.e., one incised wound and as per the Doctor this could be inflicted by a Pharsi and there is only one punctured wound. There is no other injury on his stomach. When one injury is assigned to two persons and one of them has been acquitted, on the strength of the same evidence, the other accused-person who has now been put forth as the real assailant of that injury cannot be convicted. We, therefore, feel that this witness cannot be believed so as to record conviction against these two accused-appellants.
16. PW 3 Manoharlal has only signed the dying declaration Ex. P. 4 recorded by PW 14 Kalishanker. PW 4 Mohansingh is a Panch of Gram Panchayat who has accompanied Prabhudayal Patwari. According to him, when they went to the place of occurrence Amichand gave a Pharsi blow to Gyarsilal on his head by which he fell down. He further gave a Pharsi blow to Sunderlal on his head. Kishna was armed with a dagger and he inflicted dagger blow on his (Gyarsilal) back side. According to this witness, Ramji Lal was armed with a dagger and he inflicted dagger blow to Gyarsilal. Thus, for the punctured wound, he has stated that this injury was inflicted by accused Kishna and Ramjilal whereas for the head injury, he has stated that only Amichand inflicted the injury on the head of Gyarsilal and Sunderlal. When this witness was cross-examined he has admitted that he did not name Ramjilal as assailant of Gyarsilal in his earlier statement. Even he has not named Amichand as the assailant of Sunderlal. In portion A to B of Ex. D. 3/1, he got it recorded that as soon as the fight started, he was frightened and, therefore, he ran away from the place of the occurrence. Now he says that he does not remember whether he got this statement recorded in the police or not. However, at the end of his cross-examination, he has categorically admitted that he does not know which particular accused inflicted which particular injury with what weapon to deceased Gyarsilal. He even does not know whether Patwari Prabhudayal was beaten. His statement was recorded by the Police after 20 days of the occurrence. Taking into consideration his statement as a whole, we feel that he is unable to say which particular injury was inflicted to the injured persons by which accused and with what weapon.
17. PW 5 Ghasi has stated that Amichand gave a Pharsi blow on the head of Gyarsilal and Ramjilal gave a dagger blow to Gyarsilal. Kishna was present there armed with a knife but he has not seen him inflicting any injury. Accused Prabhati was also present there armed with Pharsi and rest of the accused persons were armed with lathis. Even PW 1 Sunderlal was also injured. In portion I to J of his police statement Ex. D. 5, he got it recorded that lot of persons were taking part in the occurrence and, therefore, he was not in a position to identify as to who inflicted which injury by what weapon. He only saw the accused persons at the time when they were going away from the place of the occurrence. He did not get it recorded in Ex. D. 5 that Amichand inflicted a Pharsi blow and Ramjilal inflicted a dagger blow to Gyarsilal. He has stated that he deposed before the Police that Kishna was armed with knife. He does not know why this fact was not recorded in his police statement. He was even confronted with his committing court statement Ex. D. 4. He has even gone to the extent to say that he does not remember whether he gave any statement before the committing Magistrate or not? How can a witness who even does not remember whether he gave any statement before the committing court can be relied on to record a conviction against the accused persons on the basis of such a conflicting and contradictory evidence.
18. PW 6 Moti has stated that he was grazing his cattle near the place of the occurrence. Patwari, Gram Panch and many other persons came there. When Gyarsilal was returning, accused Kishna, Ramjilal, Prabhati and Amichand gave beating to him but who inflicted which injury, he has not stated in his examination-in-chief. He has admitted that he cannot say who inflicted which injury with what weapon to which particular injured.
19. PW 7 Chhaju has stated that when the attempt of the Patwari to hand over the possession was resisted by the accused-persons, Patwari and the complainant party tried to return back. As soon as they turned round to retreat accused Bhanwara told that the enemies have come and they are going free. On this all the accused-persons conjointly attacked Gyarsi Lal. Accused Amichand inflicled a blow with Pharsi on his head and Prabhati also inflicted a Pharsi blow which hit him on his head, by which, he fell down. As soon as he fell down, Ramjilal gave a dagger blow to Gyarsilal. Kishana also gave a dagger blow to Gyarsilal. Sunderlal tried to rescue Gyarsilal whereupon Ramjilal inflicted a dagger blow on his neck. He saved himself from that blow and when Ramjilal again tried to attack Sunderlal, Kishna intervened and caught hold of his hand. Thus, according to this witness, they are two assailants of Gyarsilal's head injury. They are Amichand and Prabhati whereas there are also two assailants of his punctured wound i.e., Ramjilal and Kishna. According to him, Gyarsi Lal received two Pharsi blows on his head in the middle of it. The dagger blow were inflicted to Gyarsilal on the front side of his stomach. However, in portion C to D of his police statement Ex. D 11, he has stated that there was a lot of assemblage of persons and, therefore, he could not observe as to who has inflicted which particular injury to which particular injured. Now he has stated that he did not give this statement to the Police. This explanation cannot be believed. It may be mentioned here that accused Prabhati and Ramjilal have already been acquitted and when one injury is caused on the head and the other one is caused on the stomach which is a punctured wound and each injury has been assigned to two persons and one of them has already been acquitted, on the strength of this evidence, then the other accused persons who are now facing trial cannot be convicted because if that evidence is held as unreliable about those two acquitted accused persons, what is the gurantee that it is true about the present two accused persons facing trial in this case.
20. PW 8 Chhitar has also stated that Amichand inflicted a Pharsi blow on the head of Gyarsilal by which he fell down then Ramjilal and Kishna inflicted dagger blows to him by which his intestines came out. In portion A to B of his Sessions Court Statement Ex. D. 12 he has stated that he was 100 Pawandas away from the place of the occurrence and, so, he has not seen the occurrence. When his explanation was obtained, he has stated that he does not remember whether he gave such a statement or not? In his statement Ex. D. 12 Portion A to B, he has stated that Prabhati also inflicted a Pharsi blow on the head of Gyarsilal but now he has stated that he does not remember whether he gave this statement before the Judge? In portion C to D of his statement Ex. D. 12, he got it recorded that one blow each by Pharsi was inflicted by Amichand and Prabhati on the head of Gyarsilal. Gyarsilal received two injuries with Pharsi but he cannot say on which portion of the body these two blows were inflicted. When his attention was drawn to his earlier statement Ex. D. 12, he has stated that he cannot say whether he gave this statement to the Sessions Judge? Even according to his statement in this case, during trial, there are two assailants for each injury i.e. one on the head and the other on the abdomonial region.
21. PW 12 Kanhaiya has turned totally hostile and he has stated that he did not see any injury on the person of Gyarsi Lal or Sunder Lal. When he was declared hostile and cross-examined, he has stated that he only saw one injury on the head of Gyarsi Lal and no injury on the person of Sunder Lal. Thus, he is a useless witness whose testimony neither helps the prosecution nor the defence.
22. PW 13 Hari Singh has stated that he was called by the Patwari and went with him to Kalyanpura. There, hundreds of persons from 3-4 villages assembled. Patwari told them that he has come to deliver possession of the fields to Gyarsi Lal. This attempt was resisted where upon, he thought that some altercations may take place and, therefore, he ran away from the place of the occurrence. The witness has been declared hostile. He has not supported the case of the prosecution at all.
23. PW 16 Prabhudayal Patwari has also been declared hostile. He has stated that he has mentioned the names of the accused persons in his Ghatna Bahi Ex. P 12 on the basis of the names disclosed to him by the witnesses. When the report of the occurrence was sent by him, to the S.H.O., he did not know their names and he mentioned their names in the report after making enquiry about their names from Kanhaiya and Bhagirath. He has stated that he himself was beaten and, therefore, he ran away from the place of the occurrence. He has categorically stated that he did not see as to who inflicted these injuries to Gyarsi Lal. Under these circumstances, his testimony also cannot be utilised by the prosecution in support of the conviction recorded against these two accused persons, so far as it relates to the specific acts of these two accused persons.
24. PW 19 Bhagirath has stated that the attempt of the Patwari to hand over the possession of the disputed fields was resisted by the accused persons and, therefore, they tried to return back. According to him, Amichand gave Pharsi blow on the head of Gyarsi Lal and then Ramji Lal gave a knife blow to Gyarsi Lal. Whether any other person also gave beating to him or not was not observed by him. When he was cross-examined and was confronted with his police statement Ex. D. 25 wherein it has not been stated that Ami Chand gave a Pharsi blow and Ramji Lal gave a dagger blow, he has stated that he did not get these facts recorded in his police statement. In portion A to B of his police statement, he has got it recorded that he was standing at a distance of two fields away from the place of the occurrence. In his statement Ex. D. 26 he has got it recorded that Prabhati also inflicted a blow to Gyarsi Lal with Pharsi and Ramji Lal also inflicted a knife blow to him on his back. Although in Ex. D. 26, it has been recorded that these persons attacked Gyarsi Lal but they inflicted which particular injury has not been recorded.
25. We have critically examined the evidence of the eye witnesses examined at the trial. According to Sunder Lal, accused Kishna did not take part in the occurrence. Rather he tried to rescue him where as according to the testimony of the other eye witnesses discussed in detail above, it transpires that Ami Chand and Prabhati were armed with Pharsis and they inflicted one blow each on the hand of Gyarsi Lal with a Pharsi whereas Kishna and Ramji Lal were armed with daggers or one of them was armed with a dagger and the other was armed with a knife and they inflicted one blow each in his abdomonial region. It is clear from the testimony of PW 11 Dr. P.S. Agrawal that there are only two sharp weapon injuries: one was an incised wound of the size 8 c.m. x 1-1/2 c.m. x bone deep (bone visible) in coronal plain 5 c.m. left to mid line from hair margine laterally and the other was a punctured wound of the size 2-1/2 cm. x 1 cm. on the right side of back pointing downward laterierly and medially, depth could not be measured. It was situated just below liver area.
26. Except these two sharp weapon injuries, no other sharp weapon injury was caused to the deceased Gyarsi Lal, when Prabhati and Ramji Lal have been tried and acquitted in Sessions Case No. 80 of 1972 and this judgment of the learned Sessions Judge, Alwar has been upheld by this Court in D.B. Cr. Appeal No. 435 of 1973 and accused Ramji Lal (second) who has been tried along with these two accused appellants has also been acquitted by the learned lower court and no appeal against that acquittal has been filed by the State then taking an over all view of the evidence, these two accused appellants also cannot be held guilty of the offences which have beed held as proved against them by the learned lower court. Thus, the accused appellants Kishna and Ami Chand deserve the benefit of doubt and consequent acquittal.
27. In the result, we accept this appeal, set aside the conviction and sentence recorded by the learned lower court against the accused appellants Kishna and Ami Chand and acquit them of all the offences with which they were charged by giving them the benefit of doubt. Accused appellants Ami Chand and Kishna are on bail. They need not surrender to their bail-bonds. Their bail-bonds shall stand discharged.