Rajasthan High Court - Jaipur
Roshan And Ors. vs State Of Rajasthan on 8 April, 1986
Equivalent citations: 1986WLN(UC)715
JUDGMENT Farooq Hasan, J.
1. This is an appeal against the judgment dated 11-9-1976 passed by the Additional Sessions Judge Sawai Madhopur, Camp at Gangapur City in Sessions case No. 76/75 (95/75) whereby he has convicted the accused appellants under Section 302/149 IPC and sentenced them to life imprisonment and a fine of Rs. 50/- each. The accused-appellants arc also convicted and sentenced under Sections 148, 147, 323 IPC.
2. The brief facts are that PW 1 Om Prakash lodged a verbal report Ex.P. 3 at Police Station, Mahuwa. It has been alleged in that report on 10-7-1975 at 7 or 7.30 a.m. deceased Ghamandi, father of the informant had been ploughing his field. At that time Smt. Kampoori PW 2 was also there on the field and one Ram Lal was also helping the deceased in ploughing the field. It has been further alleged in the report that the informant also reached the field where the deceased Smt. Kampoori and Ram Lal were ploughing the field. At that time the accused-appellants along with Mst. Bhooti and Bhima came there from the village. Accused-appellants Roshan, Prabhu, Punia and Mohar Singh were armed with Farsi and rest of the accused-persons with lathis. All the accused-appellants and the persons who accompanied the appellants asked the deceased Ghamandi not to plough the field but Ghamandi insisted in ploughing it by saying that the field belonged to him. At this the accused-appellant Roshan gave a Farsi blow on the head of the deceased, as a result of that the deceased fell-down. After that the accused-appellants Prabhu, Punia and Mohar Singh inflicted Farsi blows on the legs and hands of the deceased. It has been further alleged in the report that Shri Ganga Sahai and Bhima inflicted lathi blows on the person of the informant's mother Smt. Kampoori. It has been further alleged in the report that after sustaining the injuries Ghamandi died on the spot. Many persons assembled there. In the report Ram Lal was cited as an eye witness. It has been further alleged in the report that the informant visited Police out post, Mandawar but In-charge Police outpost was not there so he had come to the Police Station and lodged the report. On the basis of this report, a case under Sections 302, 447, 148, IPC was registered at Police Station, Mahua and Shri Gopal Ram the then SHO Police Station Mahua started investigation. He went to the place of occurrence and prepared the site-plan inquest report and took the blood-stained earth from the place of occurrence. PW 5 Dr. S.L. Sharma conducted the post mortem on the dead body of Shri Ghamandi and he also medically examined Smt. Kampoori about her injuries and Pharsis were recovered as a result of information given by the accused-appellants Roshan, Mohar Singh, Prabhu and one Tanchia is alleged to have been recovered as a result of information given to the Police by accusedPunia, lathies were recovered as a result of the information given to the Police by Ganga Sahai and one more Farsi was also recovered from the possession of Mardana, blood-stained clothes of deceased Ghamandi were also taken in possession. The recovered weapon of offence and the blood stained clothes of accused-appellant Roshan and deceased were sent for Chemical Examination and all of them were found to be stained with blood by Director, Fornesic Science Laboratory, Jaipur vide his report Ex. P 26. After completing the investigation, a chargesheet was filed against all the seven persons in the Court of Additional Munsif-cum-Judicial Magistrate Hindaun where in accused-appellant Bhima was shown as absconding. The learned Magistrate committed the case for trial and the trial was conducted by the Additional Sessions Judge, Sawai Madhopur camp at Gangapur city charges under the various section of the IPC specially under Section 302 and in the alternative under Section 302 read with 149 IPC were framed against the accused-persons. All the accused-appellants denied the charges and claimed to be tried.
3. In this case the prosecution has produced 13 witnesses PW 1 Om Prakash is the son of the deceased Shri Ghamandi who is an informant and also an eye witness of the occurrence PW 2 Smt. Kampoori is also an injured eye witness PW 8 Ram Lal was plough man of deceased Ghamandi who has been alleged to be an eye witness of the occurrence PW 3 Hazari Lal is a Patwari who prepared site plan Ex. P 6 and proved the copy of the Khasra Girdawari Ex.P 5, PW 4 Shri Ganga Sahai in whose presence site plan Ex. P 2 and an inquest report Ex.P 3 were prepared by the Investigating Officer also was examined PW 5 Dr. S.L. Sharma conducted the post-mortem on the dead body of Shri Ghamandi and prepared the injury report of Smt. Kampoori. PW 5 Banshidhar who had kept the articles of this case in a scaled condition at the Police Station PW 7 Shri Ganesh is who took the sealed articles to the Chemical Examiner, PW 9 Shri Moola is the person in whose presence the accused-appellant Roshan got recovered Pharsi but this witness had turned hostile PW 10 Shri Gopal Ram is the Investigating Officer, PW 11 Shri Liyakat Ali, C.O. Police, Hindaun has given the evidence of recovery of Pharsi at the instance of accused-appellant Roshan, PW 12 Shri Ramavatar, Head Constable who has arrested accused Mardana along with Pharsi. PW 13 Shri Sardara Ram has arrested accused-Roshan and took in his possession one Panja and shirt of the accused which was found stained with blood.
4. After the close of the prosecution evidence the accused-appellant were examined under Section 313 Cr. PC. All the accused-persons including the appellants admitted that Khasra No. 42 where the occurrence took place was in the possession and ownership of deceased Gamandi but they denied all the facts alleged regarding the occurrence and further stated that they have been falsely implicated in this case. Accused-appellant Punia stated that in the morning of the day of occurrence, he had gone to graze his sheep and goats in the jungle. His pet dog was also with him. The sheep entered into the field of deceased Ghamandi who threw stones on the sheep. Deceased Ghamandi inflicted the Farsa blows on the dog. It has further been stated by Punia that he then came back to the house and narrated this incidence to his brother accused-appellant Roshan who went to reprimand the deceased. Accused-appellant Roshan has also given the same version as of Punia but he further added that deceased Ghamandi gave Pharsi blows on his hand and he came back and went to the hospital for the purposes of treatment of the injury sustained to him. It was further stated by the accused appellant Roshan that his father Ram Singh was murdered by deceased Ghamandi who was his real uncle along with Smt. Kampoori and one Chajia and murder case was pending against them at the time of this occurrence and on account of that enmity, they had been falsely implicated him in this case. Accused appellants Prabhu, Punia and Roshan are the real brothers. Accused-appellant Mohar Singh has stated in his statement under Section 313 Cr.PC that he was cited as witness in the murder case pending against the deceased Ghamandi, Smt. Kampoori and Chajia. On account of this he has been falsely implicated in this case. Accused appellant Ganga Sahai is the father of accused-appellant Mohar Singh.
5. We have heard the learned Counsel for the accused-appellants and the learned Public Prosecutor for the State. The learned Counsel for the accused appellants had made the following submissions:
(1) That PW 1 and PW 2 who are the only eye witnesses are highly interested and closely related to the deceased so their testimony should be rejected;
(2) PW 1 Om Prakash is a child witness and there is every possibility of his being tutored. More over his testimony is in direct conflict with the testimony of Mst. Kampoori PW 2;
(3) That testimonies of PW 1 and PW 2 have been belied by the medical evidence regarding the injuries found on the person of the deceased;
(4) Looking to the post-mortem report wherein injuries sustained to the deceased are mentioned it cannot be inferred that the assailants had any intention of murder because no injury is inflicted on the vital parts;
(5) Those persons who are admitted by PW 1 and PW 2 to be present on the spot have not been examined by the prosecution. No explanation what so ever has been offered by the prosecution for their non production;
(6) PW 8 Ram Lal has also not corroborated (he case put up by PW 1 Om Prakash and PW 2 Smt. Kampoori;
(7) The recoveries of the weapons of offence are planted by the Police;
(8) That the presence of accused-appsllant Ganga Sahai has not at all been proved and accused appellants Ganga Sahai Mohar Singh are implicated falsely in the case.
6. Learned Public Prosecutor on the other hand submitted that the injuries sustained by the deceased on the legs were sufficient in the ordinary course of nature to cause his death. These injuries are very serious in nature so it cannot be said that because there are no injuries on the vital parts of the deceased so inference of murder cannot be drawn against the accused appellants.
7. All the accused-appellants came together and went together so it can be said that the accused-appellants formed an unlawful assembly in order to commit the murder of Ghamandi. The learned Public Prosecutor further stated that there was bad blood in between the parties because the murder case was pending against the deceased and other persons, and deceased Ghamandi was charged to have committed the murder of Ram Singh father of accused-appellants No. 1,2, 3 and so the accused-appellants committed the murder with the object of taking revenge. It was also contended by the learned Public Prosecutor that during the course of investigation it was not known as to who were the other persons who had seen the actual occurrence. So such persons were not brought on record and their non-production is not so material. It was contended that PW 1 Om Prakash has given all the details of the occurrence so his testimony cannot be rejected on the ground that he is of tender age.
8. We have carefully considered the arguments advanced by the learned Counsel for the parties and perused the record.
9. PW 1 is a boy of 16 years of age who has stated that on the day of occurrence, his father mother and Hali Ram Lal had gone to their field in order to plough the field. The witness further stated that he went afterwards at the time when his father and Hali Ramlal were ploughing the field, accused appellants along with Bhima, Bhooti and Mardana came on the field of his father. Accused-appellants Roshan, Punia, Prabhu and Moharsingh were armed with Pharsa and other accused were armed with Lathies. All the accused asked his father not to plough the field but his father did not stop ploughing the field saying that the field was under his ownership. On this the accused-persons started abusing. He further stated that the accused-appellant Roshan inflicted the Pharsi blow on the forehead of his father and after that all the accused-persons started beating his father. They had cut the legs of his father and also inflicted injuries on his hands, his mother went to rescue his father but she was also beaten by the accused-persons. The witness further stated that his father died on the spot and he went to lodge the report of the incident at the Police outpost, Mandawar but the Incharge of the Out-post was not there then he went to the Police Station, Mahwa and there he lodged the report Ex. P 1. The witness further stated that site-plan Ex. P 2, and inquest-report Ex. P 3 were prepared by the Investigating Officer in his presence and these documents bear his signature. In cross-examination the witness admitted that at that time the School hours were from 10 a.m. to 4.00 p.m. The witness further desposed that two days prior to this incident, the accused-persons threatened his father saying that, if his father will go to field, he will be murdered.
10. PW 2 Smt. Kampoori has stated that on the day of incident she along with her husband and Ram Lal had gone to their field for sowing the field, when they were ploughing the field. Smt. Bhooti came there and asked them not to cultivate the field. If was further stated by the witness that Smt. Bhooti threw stones on them. After some time all the accused persons came on the spot. At that time Roshan, Prabhu, Ganga Sahai and Bhima were armed with Pharsies, accused Roshan inflicted Pharsi blows on the fore-head of her husband, her husband ran away but he was stopped by accused Mardana. The other accused-persons including Bhima also chased and started beating to her husband, she went to rescue her husband but she was also beaten. Her husband received injuries on hands and legs. His legs were cut, the witness further stated that she was beaten by Ganga Sahai, Bhima by Lathies and her husband was beaten by Ganga Sahai, Bhima, Roshan and Mohar Singh by Pharsi. In cross examination she admitted that a murder case was pending against her husband and one Chajia and this case was related to the murder of Ram Singh father of accused Roshan, Prabhu and Punia. The witness further admitted in cross-examination that her son Om Prakash PW 1 had gone to school but after some time he came to the field after hearing the noise. PW 1 Om Prakash came on the spot, at the time when the husband was in the field of Pujari. Their field was at about one mile from the village. The witness specifically admitted that she was not beaten by the accused-persons in her field but was beaten in the field of Pujari, when she tried to rescue her husband. The witness admitted in cross examination that at the time of occurrence Moolia r/o Adalpur, Prabhu Meena and Chotey had also come there and they also tried to rescue them.
11. PW 8 Ram Lal stated that he ran away from the spot before accused-persons gave beating to deceased Ghamandi and PW 2 Smt. Kampoori PW 8 Ram Lal only corroborated this much statement of PW 1 and PW 2 that he had been gone to the field of deceased Ghamandi and at that time Smt. Bhooti came on the spot and started abusing, on this he ran away. In cross-examination he admitted that Om Prakash PW 1 had not come with them to the field and he had seen Om Prakash on the spot.
12. PW 5 Dr. S.L. Sharma proved the post-mortem Report Ex. P 11. This witness stated before the trial court that the injuries on the person of deceased were caused by sharp object and the cause of death was shock due to injuries of both legs. The witness furter stated that injury on the person of Ghamandi were sufficient to cause his death in the ordinary course of nature. This witness also proved the injuries on the person PW 2 Smt. Kampoori which were 9 in number. The witness further stated that post-mortem Report Ex.P 11 and injury report of Smt. Kampoori Ex.P 12 is in his hand writing and the same are prepared by him and bear his signatures. PW 10 Shri Gopal Ram, SHO, Mahuwa came in the witness box and he proved Ex. P 1, report by Om Prakash Ex. P 2 site-plan, Ex. P 3 inquest-report, Ex. P 8 (memo of lifting blood stained earth) site-plan, Ex. P 6 prepared by Hazarilal Patwari Ex.P 22 information for the recovery of Pharsi by Prabhu and Ex. P 15 recovery memo of Pharsi Article 8 Ex.P 23 information by Mohar Singh, Ex.P 13 recovery memo of Pharsi at the instance of Mohar Singh, Ex. P 24 information for the recovery of Pharsi by Punia and recovery of tanchiya Ex. P 16 at the instance of accused Punia reeovery memo, Ex.P 25 by accused Shri Ganga Sahai for the recovery of Lathi, its recovery memo Ex.P 14. The witness further stated that after the recoveries of all the above mentioned articles were sealed by him on the spot and same were sent to Chemical Examination in the sealed conditions.
13. PW 11 Shri Liyakat Ali Circle Inspector, Police Station, Hindaun who was a probationer at that time proved the information Ex. P 28 given by accused-appellant Roshan and vide memo Ex. P 10 Pharsi article 10, which was stained with blood was sealed by him. PW 12 Shri Ramawatar is also Police employee who has stated about the recovery of Pharsi at. the instance of Mardana who has been acquitted by the trial court. He has also stated that the arrested accused Roshan and took in his possession the blood stained shirt and Panja of accussed-appellant Roshan. PW 4 Shri Ganga Sahai proved site-plan Ex P 2, inquest-report Ex. P 3 memo Ex. P 7, Ex.P 9, and Hx. P 10 claiming himself as the attesting witnesses of the aforesaid memos.
14. PW 3 Hazarilal is a Patwari of village who has proved the Khasra Girdawari Ex. P 5 and site-plan Ex. P 6.
15. PW 6 Shri Banshidhar has stated that the articles recovered in this case were kept in sealed conditions and were sent for Chemical Examination in scaled conditions.
16. PW 7 Shri Ganesh stated that he took the articles of this case to Chemical Examiner, Jaipur from Malkhana, Police Station, Mahuwa in sealed conditions.
17. PW 9 Shri Moolia claiming himself to be the attesting witness for the recovery memo of weapons of offence i.e. Pharsi, Lathi. DW 1 Shri Chotey gave evidence for the accused Mardana. DW 2 Dr. J.P. Verma proved the injury report Ex. D 3 of accused Roshan.
18. In view of the evidence discussed above this much is clear that Shri Ghamandi died on 10-7-1975 at the place of occurrence and he died on account of injuries which had been on his person. Dr. S.L. Sharma who conducted the post-mortem had categorically stated that injuries on the deceased were sufficient in the ordinary course of nature to cause the death of Shri Ghamandi. He has also stated that number 5 on the person of deceased alone was sufficient to cause the death of Ghamandi. It has also been proved that PW 2 Smt. Kampoori also sustained injuries in the occurrence.
19. Now it is to be seen as to whether the injuries on the persons of the deceased Ghamandi and Smt. Kampoori were caused by the accused-appellants and they are responsible to commit the murder of Ghamandi and caused simple injuries on the person of Smt. Kampoori after forming an unlawful assembly common object of which was to murder Shri Ghamandi and to inflict simple injury on the person of Smt. Kampoori.
20. In the instant case there are only two witnesses who have been examined by the prosecution as eye witness PW 1 is the son of deceased and PW 2 is the widow of deceased and they are closely related with the deceased. The contention on behalf of the appellants that the evidence of these two witnesses should be rejected because they are closely related to the deceased is not tenable. The testimony of relatives or parties on witnesses cannot be discarded simply on the ground that the witnesses happen to be related with the deceased. But at the same time the testimony of such witnesses should be closely scrutinised and their testimony should be acted upon only such scrutiny.
21. PW 2 Smt. Kampoori is the widow of the deceased. She has narrated the whole incident and claims herself to be an eye witness. Because of her relations with the deceased we will have to scrutinise and examine her statement with caution. If corroboration is available, then her testimony can not be rejected simply on the ground that she is the widow of the deceased. As discussed above, PW 2 Smt. Kampoori had also sustained injuries and her Injury report Ex. P 2 where in the injuries found on the person of PW 2 are proved by Dr. S.L. Sharma. Because Smt. Kampoori is an injured witness so her presence at the place of occurrence cannot be doubted. She has stated that accused-appellants Roshan, Punia, Ganga Sahai and Bhima were armed with Pharsi. It has been stated by her that the blow on the forehead of deceased was inflicted by accused-appellant Roshan. She has further stated that Roshan also inflicted Pharsi blow on the hand and legs of the deceased. Blood stained shirt and Panja of accused-appellent Roshan were taken into possession by the Police. Similarly one Pharsi was also recovered at the information and instance of accused-appellant Roshan. In the report Ex. P 26 these articles Shirt, Panja and Pharsi were found blood stained by the Director, Forensic Science Laboratory, Jaipur and the same is reported in Ex. P 26. Likewise the Serologist detected blood B-group on the shirt of the accused-appellant Roshan and the Shirt of the deceased Ghamandi, and blood stained earth which was seized from the place of the occurrence. The report of Serologist is Ex. P 27. The statement of Smt. Kampoori is fully corroborated and there is no doubt that accused-appellant Roshan certainly participated in the beating of deceased Ghamandi. The statement of PW 2 Smt. Kampoori further gets support from the statement of PW 1 Om Prakash who also reached on the spot. It is possible that PW 1 might not have seen the whole occurrence but that part of his statement can be relied upon which gets support from PW 2. After going through the statement of Om Prakash and the FIR we find that certain facts which are narrated by PW 2 Smt. Kampoori do not find place in the statement of Om Prakash and in the FIR which does not mean that Om Prakash did not at all see the occurrence. It is a fact that in the FIR Ex. P 1 some of the details of this occurrence are not mentioned but it cannot be lost sight of that the report was lodged by a boy of only 12 or 13 years of age, who had seen his father and mother being brutally beaten by the assailants and because of that beating his father died on the spot. In these circumstances, it cannot be expected that a boy of 12 or 13 years of age will be in a fit state of mind to narrate the whole incident. It is just possible that he may forget to mention certain facts. In the FIR Ex. P 1 sufficient particulars, such as the name of the accused-appellant, place of occurrence, beating of her mother and father, weapons of offence in the hands of the accused-persons are mentioned. It was not obligatory on the part of the informant to give other details of the occurrence. In these circumstances, it cannot be said that Omprakash did not witness the occurrence. There are contradictions in the statement of PW 1 and PW 2 but they are minor in nature. Presence of contradictions in the statement of these two witnesses is natural. It is not necessary that occurrence seen by a person from one angle should be witnessed by the other from the same angle, and because of this reason there may be contradictions of minor nature.
22. Learned Counsel for the accused-appellant pointed out that there is a contradiction regarding the timings of School, but it is not so material to hold that PW 1 was not present on the spot.
23. In the instant case, if there is a contradiction In between the statements of PW 1 and PW 2 regarding the weapons of offence and the injuries which were inflicted by the accused-persons it does not mean that whole of their statements can be thrown away.
24. PW 1 Omprakash has stated that the accused-appellants Roshan, Prabhu, Punia and Moharsingh were armed with Pharsis, Like-wise PW 2 Smt. Kampoori has stated that Roshan, Prabhu, Ganga Sahai and Bhima were armed with Pharsis. The injuries on the person of deceased were caused by sharp weapons. So this much is clear that the assailants inflicted the injuries on the person of the deceased by sharp weapon. In the statement of PW 1 and PW 2 names of Roshan and Prabhu are common, who were having Pharsis in their hands, but there is a discrepency with regard to accused-appellant Ganga Sahai and Moharsingh, although it has been explained by Smt. Kampoori that Pharsis and Lathies were exchanged by Ganga Sahai, Moharsingh, Bhima and Smt. Bhooti, but this part of her statement cannot be believed because it has not been supported by direct or indirect evidence.
25. From the statement of PW 1 and PW 2 it has come on record that Shri Ramsingh father of the accused-persons Roshan, Prabhu and Punia was murdered and a murder case was pending against the deceased Ghamandi, Smt. Kampoori PW 2 and one Chajia at the time when Ghamandi was murdered. It has also been admitted that the accusedappellant Moharsingh was a witness in the case against the deceased Ghamandi, Smt. Kampoori and Chajia, Ganga Sahai is admittedly the father of Moharsingh. Deceased Ghamandi and Smt. Kampoori were on bail in that case. So the motive alleged by the prosecution as against the accused-appellant Roshan and Prabhu is believable from the above facts. It appears that accused-appellant Roshan and Prabhu gave beating with sufficient motive and killed Ghamandi, who was an accused in murder case of Shri Ramsingh. But at the same time we are unable to accept that the accused-appellants Ganga Sahai and Moharsingh may also have a motive of killing the deceased in this case. This is possible that accused-appellant Moharsingh gave evidence against Ghamandi and Smt. Kampoori and as such he might have been implicated falsely in this case and that is the reason that PW 2 Smt. Kampoori has given the name of Ganga Sahai who was armed with Pharsi but PW 1 Omprakash has given the name of Moharsingh being armed with Pharsi at the place of occurrence. As we have stated earlier that the deceased sustained injuries by sharp weapons only so because of this material contradiction in the statement of PWs 1 and 2 we are unable to accept the prosecution version to this extent that the accused-appellants Mohar Singh and Ganga Sahai ever participated in the assault of deceased Ghamandi. Threfore, on this count both the accused-appellants Ganga Sahai and Mohar Singh are entitled to get the benefit of doubt. Similar is the case of accused-Punia who has not stated to have taken part in the beating of deceised Ghamandi or Smt. Kampoori who is start witness of the prosecution. So, accused-appellant Punia is also entitled to get the benefit of doubt. Smt. Kampoori has stated that Pharsi blows were inflicted on the person of deceased by Bhima also. Accused Bhima had absconded and did not face the trial, and as such it will not be just and proper to express any opinion with regard to Bhima, Smt. Kampoori has stated in her examination-in-chief that only accused-appellants Bhima and Ganga Sahai inflicted lathi blows on her person. Her statement regarding Ganga Sahai cannot be believed because at one time Smt. Kampoori says that Ganga Sahai was having Pharsi and he inflicted a blow on her hand but at the same time she says that Ganga Sahai inflicted lathi blow on her person.
26. As per the statement of Smt. Kampoori and the FIR and the statement of PW 1 Om Prakash it has come on record that other people also witnessed the occurrence, but none of them has been produced by the prosecution. In case of their production the statements of Smt. Kampoori and Om Prakash would have gained more strength. Their non-production does not mean that the statements of Smt. Kampoori and Omprakash are absolutely false. As we have observed above that the statements of Om Prakash and Smt. Kampoori are to be examined carefully. We have examined their statements with care and caution and find that their statements cannot be disbelieved for the accused-appellants Roshan and Prabhu, because their statements are fully supported by the recoveries of the weapons of offence, and the reports Ex. P. 26 and Ex. P. 27. It. is not disputed that Ghamandi died due to injuries on the leg. These injuries were caused by sharp weapon. Both accused-Roshan and Prabhu were armed with Pharsi and it has been stated by PW 2 that accused Roshan and Prabhu inflicted Pharsi blow on the leg and hand of the deceased. It is therefore fully established that both the accused-Roshan and Prabhu had the common intention to kill Ghamandi. Both the accused came together and after inflicting Pharsi blow on the person of Ghamandi went together. Thus it is also clear that they attacked Ghamandi after pre-arranged plan in order to get the revenge of their father Ram Singh's murder. Under these circumstances accused Roshan and Prabhu are guilty for the offence as is defined under Section 302 read with Section 34 of the Indian Penal Code.
27. It has been contended by the learned Counsel for the accused-appellant that the defence version is more probable. We are unable to accept this contention. It has been stated by accused Punia under Section 313 Cr.PC that he had gone to graze his sheep in the morning and his sheep entered into the field of deceased who threw stone on the sheep. The dog following Punja started barking; on this the deceased inflicted a Pharsi blow on the dog and the dog fell down and died. After this accused Punia narrated this incident to his brother Roshan who went to the field of deceased and made a protest to the deceased who in turn inflicted a Pharsi blow on the hand of Roshan. Injury of Roshan has been proved by DW 2. We do not find any evidence on the record for the above mentioned version of the accused-appellant Punia and Roshan. Injury on the person of accused Roshan does not mean that it has been caused by the deceased. Injury is simple in nature and it has neither been proved nor there are circumstances on record to show that the injury sustained by Roshan is caused in this incident or is inflicted by deceased. No evidence in this respect has been produced by the accused. If the dog was killed by the deceased or the accused Roshan was beaten by the deceased then Roshan or Punia could have reported the matter to the police and could have obtained the medical certificate of a veternary doctor for their dog to support their version but it has not been done. PW 1 and PW 2 denied the suggestion given in cross-examination about the defence version. Unless it is proved that accused Roshan also sustained injury in this incident it was not necessary for the prosecution to explain the injury on the person of accused Roshan.
28. In view of the foregoing discussion we are inclined to accept the appeal of accused-appellants Ganga Sahai Mohar and punia and acquit them of the affence under Sections 302, 149, 147 148 and 323 IPC. They are on bail and their bail bonds are cancelled. The appeal of accused-appellant Roshan and Prabhu is allowed to this extent that they are acquitted for the or offences under Sections 147-148 but their conviction is altered from 302/149 IPC 302/34 IPC and ther sentence of life imprisonment and fine is maintained for the offence under Section 302/34 IPC. Their conviction and sentence under Sections 147 and 323 IPC are also maintained. Accused-appellant Roshan and Prabhu shall get the benefit of Section 428 Cr. PC. They are on bail and their bail bonds are cancelled. The Additional Sessions Judge, Gangapur city is directed to issue non-bailable warrant against the accused-appellants Roshan and Prabhu and get them arrested to serve out the sentence passed against them.