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4. After lodging the FIR, injured persons were sent for medical examination to Primary Health Centre (PHC) Shadora, where Block Medical Education (BMO) Dr. H.H.N. Garg (PW-20) medically examined Bharosa, Munnalal, Dulichand, Parwati Bai and Udham Singh and recorded their MLCs (Ex.P/38 to P/42, respectively). Dr. Garg advised for radiological examination of some injuries of Parwati Bai and for abdomen injury of Bharosa. In the same night appellant Patru and his brother Hamira were also examined by Dr. H.H.N. Garg (PW-20), who recorded their MLCs (Ex. D/2 and D/3 respectively). The radiological examination of Parwati Bai and Bharosa was performed by Dr. R.K.Jain (PW-6) on 10.8.1998 at District Hospital, Guna and in x-ray investigation fracture of metacarpal bone of right hand's index finger of Parwati Bai was found and in this regard x-ray report (Ex.P/13) was recorded by Dr. Jain (PW-6). After radiological examination of abdomen of Bharosa on 10.8.1998, Dr. R.K.Jain (PW-6) referred his x-ray photoplates for expert opinion to Medical College, Gwalior and Medical College Gwalior's radiological expert Dr. Gupta by his report (Ex.P/19) opined that no abnormality is found. During investigation, Head Constable Radheshyam (PW-19) on 8.8.1998 recorded police statements of injured Bharosa with some other witnesses. From 9.8.1998 Bharosa was admitted in District Hospital, Guna being referred from Shadora Hospital and at District Hospital, Guna during treatment, his abdomen was operated, but he died in District Hospital, Guna on 28.8.1998. After receiving report about death of admitted Bharosa from Guna Hospital, merg report (Ex. P/28) was registered by Head Constable Jagmohan (PW-14) at Police Station Guna and after receiving information regarding death of Bharosa at Police Station Shadora merg report (Ex.P/29) was recorded by Shiv Mangal Singh (PW-15) and in previously registered crime No. 120/1998 arisen on FIR of complainant Munnalal, offence punishable under Section 302 of the IPC was added.

7. Trial Court after hearing, placing reliance on eye- witness account given by injured prosecution witnesses including complainant, also treated the police statement of Bharosa, recorded on the date of incident under Section 161 of the CrPC by Head Constable Radheshyam (PW-19) as dying declaration and convicted each appellant and Hamira under Sections 147, 148, 302, 325 and 324 of the IPC and sentenced the present appellants as aforesaid.

8. Appearing counsel for the appellants vehemently contended that Bharosa was injured on 8.8.1998, whereas he died in District Hospital Guna on 28.8.1998 and it was clear from the evidence of Dr. N.K.Sharma (PW-9), who conducted his post-mortem that Bharosa died due to complications arose from post-surgical complication and cause of death was shown perforation peritonitis and according to evidence of Dr. H.H.N. Garg (PW-20), who examined injured Hamira on the date of incident, all his three visible external injuries were of simple nature and he advised for Bharosa's x-ray examination of abdomen as he was complaining pain in abdomen and according to the evidence of Dr. R.K.Jain (PW-6), the radiological expert of Medical College, Gwalior after seeing x-ray photoplate of Bharosa, opined that there was no abnormality in the abdomen and later on at the time of post-mortem of Bharosa, his two ribs on right side were also found fractured, hence the possibility of these fractures of ribs caused after the date of incident could not be ruled out. Therefore, it is argued that the trial Court erred in convicting each appellant under Section 302 of the IPC, whereas each appellant was charged under Section 302/149 of the IPC and on the basis of Ex. D/1 (report lodged by appellant Patru) on the date of incident at Police Station Shadora recorded for non-cognizable offences and MLCs of Patru and his brother Hamira proved by Dr. H.H.N. Garg, it is contended that the possibility of mutual fighting between two groups could not be ruled out and there was no explanation of injuries found on the body of accused Patru and his real brother Hamira. Hence, the evidence of family members of complainant could not be believed, as independent witnesses Bhanwarlal (PW-7), Shivraj Singh (PW-8) and Salman (PW-10) have not supported the prosecution's case and they were declared hostile. Hence, it is prayed that appeals filed by each appellant be allowed and he be acquitted from above mentioned offences.

11. Dr. H.H.N. Garg (PW-20) opined that nature of fourth injury of abdomen of Bharosa could be ascertained only after radiological examination.

12. Much emphasis has been given by the learned counsel for the appellants that except abdomen injury of Bharosa, other three injuries of Bharosa were of simple nature according to Dr. Garg's evidence. Dr. R.K.Jain (PW-6) deposed that on 10.8.1998 at District Hospital, Guna radiological examination of abdomen of Bharosa was conducted by him but relating x-ray photoplate was sent by him for getting expert opinion from the head of the radiological department of Medical College, Gwalior and his referral report is Ex.P/17 and from Medical College, Gwalior report (Ex.P/19) signed by Dr. Gupta was received, according to which no any fracture or abnormality was found by the above-mentioned expert. Dr. Jain deposed in cross-examination that in abdomen of Bharosa, no injury was found by the above-mentioned expert of Medical College.

15. Dr. N.K.Sharma (PW-9) clearly deposed in para 3 of his statement that Bharosa died because of failure of operation of his abdomen. On this point his evidence is not challenged by the prosecution, therefore, his above- mentioned evidence is binding on prosecution. It is clear from Bharosa's MLC report recorded by Dr. H.H.N. Garg (PW-20) that Bharosa was complaining pain in his abdomen at the time of his examination by Dr. Garg, hence radiological examination of his abdomen was advised by Dr. Garg. There is no evidence or record available in the case that on which date operation of Bharosa was performed in the District Hospital, Guna.