B.P. Singh, J.@mdashThese seven appeals have been preferred by the appellants, 11 in number, against the judgment and order of the 6th Addl. Sessions Judge, Chapra dated 14th/15th September, 1993 in Sessions Trial No. 87 of 1988/120 of 1993. The learned Addl. Sessions Judge by his impugned, judgment and order has sentenced all the appellants to undergo rigorous imprisonment for life under Sections 302/149, I.P.C. Appellants Anil Singh, Devendra Singh, Hareram Singh, Parshuram Singh, Dinesh Singh, Sheokumar Singh, Ram Pujan Singh and Munna Singh have been sentenced to undergo three years'' rigorous imprisonment u/s 148, I.P.C. Appellants Rameshwar Singh, Ghanshyam Singh and Ram Janam Singh have been sentenced to undergo two years'' rigorous imprisonment u/s 147, I.P.C. Appellant-Rameshwar Singh has also been found guilty of the offence under Sections 114/302, I.P.C., but no separate sentence has been passed on this count. In this manner, all the 11 appellants who were put up for trial before the 6th Addl. Sessions Judge, Chapra have been found guilty.
2. The prosecution case is that an occurrence took place little after 2 p.m. on 17-11-1987 in which all the appellants variously armed assaulted Triguna Singh (deceased) who succumbed to his injuries immediately after the assault. The prosecution has examined 6 eye-witnesses in support of its case, namely, Ksmla Giri, P.W. 1, Sudarshan Singh, P.W. 2, Manilal Giri, P.W. 3, Bunda Lal Giri, P.W. 4 Nathuni Giri, P.W. 5, and Tapeshwar Singh, P.W. 6, the father of the deceased. The defence on the other hand, has pleaded false implication since there was serious enmity between the appellants on the one hand and the prosecution witnesses on the other. The case was investigated by Sri Anand Prakash Gupta, P.W. 9 who on the date of occurrence was posted at the Marhowrah police station and who on ''hearing a rumour at 3 p.m. about a murder having taken place in village Bahuara Patti, reached the village of occurrence at about 4 p.m. and recorded the fardbeyan of Nathuni Giri, P.W. 5.
The place of occurrence is said to be the sweet-potato field of Mangal Kuer which was situated to the east of village Bahuara Patti. The witnesses P.Ws. 1, 3 and 4 who are brothers, reside at a distance of about 300-400 yards north of the place of occurrence. Towards the south-east of the place of occurrence is village Bahuara Patti at a distance of about 800 to 900 yards, to the south of the place of occurrence at a distance of about 40 yards is a canal with shyphon running east to west. By the side of the place of occurrence, there is a village road running north to south connecting village Bahuara Patti in the south to Mathairi Tola in the north.
3. In his fardbeyan recorded at 4 p.m. at the place of occurrence, Nathuni Giri, P.W. 5, stated that at about 2 p.m. on that day, Triguna Singh (deceased) had come to his house which was located at a distance of about 300 yards from the canal. Triguna Singh asked for water which the informant brought in a Lotta. After drinking water the deceased while leaving his house asked for some Khaini (Tobacco). The informant walked with the deceased to some distance while preparing the khaini. Thereafter, he returned and proceeded towards his house. While returning, he heard a noise coming from the direction of the canal. When he turned back, he saw that 11-12- persons armed with Farsa, Bhala and lathi had come on the canal. Triguna Singh also moved towards him. Appellant Rameshwar Singh who was armed with a lathi ordered assault. Appellant Anil Singh who was armed with a Farsa assaulted Triguna Singh, deceased on his neck as a result of which he fell down in the field of Mangal Kuer. Thereafter, appellant Devendra Singh gave three or four Farsa blows on Triguna Singh who had fallen. Appellant Hareram Singh who was armed with Bhala gave two blows on the deceased with his Bhala. Appellant Parshuram Singh who was armed with pistol threatened the witnesses so that no one came near them. Thereafter appellants Dinesh Singh armed with Bhala, Ghanshyam Singh armed with lathi, Sheokumar Singh armed with Farsa, Ram Janam Singh armed with a lathi, Rampujan Singh armed with Garasa started assaulting the deceased with their respective weapons. The assault was witnessed by Sudarshan Singh, P.W. 2, Kamla Giri, P.W. 1, Manilal Giri, P.W. 3, Bunde Lal Giri, P.W. 4., Tapeshwar Singh, P.W. 6 and other villagers.
It was stated by the informant that he had heard that 2-3 days ago there was a quarrel between appellant Devendra Singh and deceased Triguna Singh in connection with Sisum trees growing on the ridge of their lands.
4. The fardbeyan of P.W. 5 was recorded by P.W. 9 who took up investigation. He prepared on inquest report in presence of Pasupati Singh and Prabhu Nath Singh who have not been examined at the trial. He thereafter sent the dead-body for post-mortem examination to the Sadar Hospital at Chapra and thereafter, inspected the place of occurrence. He ascertained that the place of occurrence was the field of Mangal Kuer where he found blood stains which he seized under seizure memo Ext. 5 in presence of the same two witnesses. He recorded the statement of the eye-witnesses on the same evening, but the statement of Tapeshwar Singh was recorded on the following day. From the deposition of the Investigating Officer, it appears that on the date of occurrence, he did not find P.W. 6 to be in a fit state of mind to give statement and therefore, his statement was recorded on the following day. At this stage, it is worth noticing that so far as appellant Munna Singh is concerned, he has not been named in the fardbeyan of P.W. 5.
5. The post-mortem on the dead-body of the deceased was conducted by Dr. Rambali Singh, P.W, 8 at 8.20 a.m. on 18-11-1987 at the Sadar hospital Chapra. He found the following ante-mortem injuries on the person of the deceased.
1. Incised wound on the right side of the neck involving almost 2/3 of the neck exposing all structures (blood vessels, nerves, muscles, cervical vertebra... in cut position and blood-clotted occupying and covering those structures.
2. Incised wound right index finger causing the finger to fall half way from its position.
3. Abrasion 1" in length in the right midshin.
4. Incised wound mid scalp parallel to each other.
(a) 2" x 1/4" x 1"
(b) 1 1/2" x 1/4" x 1"
In the opinion of the doctor, the death had occurred due to haemorrhage and shock caused by the injuries which had been caused by sharp/ cutting weapons such as Farsaand Garasa. The death had occurred within 24 hours of the post-mortem examination. The doctor stated that he might have missed to mention some trivial injuries in the post-mortem report, but he admitted that he had no basis to say so. In cross-examination, this witness stated that Farsa produces sharp-cutting wound while a Bhala produces penetrating wound. He had found no penetrating wound on the person of the deceased. Injury No. 3 in his opinion was possible by hard and blunt substance.
6. The defence has relied upon the medical evidence to discredit the prosecution case as to the manner of assault. It was submitted that according to the prosecution, all the 11 appellants had mercilessly assaulted deceased, but the medical evidence on record disclosed only one abrasion and three incised wounds which support the plea of the defence that the prosecution witnesses had not really witnessed the occurrence and were speaking from imagination. If really, all the 11 appellants had assaulted the deceased with their respective weapons as is the prosecution case, many more injuries would have been found on the person of the deceased. The injuries found on the person of the deceased probabilise the case that not more than two or three persons were involved in the murder of the deceased, but the prosecution witnesses, who were inimically disposed towards the appellants, have implicated all of them. This aspect of the matter will have to be considered later.
7. Kamla Giri, P.W. 1 who claimed to be an eye-witness deposed that on the date of occurrence he was ploughing his field at about 2.30 p.m. when he heard a noise coming from the side of the canal. He saw that 10-11 persons were chasing the deceased who was surrounded in the field of Mangal Kuer. Appellant Rameshwar Singh ordered assault whereupon appellant Anil Singh inflicted an injury with his Farsa on the right side of the neck of Triguna Singh, deceased. Thereafter, appellant Devendra Singh gave two or three successive blows with his Farsa. The other appellants also started indiscriminately assaulting the deceased. Appellant Parshuram Singh threatened the witnesses with his pistol. According to this witness, Rameshwar Singh and Munna Singh were armed with Farsas, Ghanshyam Singh and Ram Janam Singh with lathis, Dinesh Singh and Hareram Singh with Bhalas and Ram Pujan Singh with Garasa. He again stated that Rameshwar Singh was armed with a lathi. This witness deposed that the occurrence was witnessed by Sudarshan Singh, P.W. 2, Manilal Giri, P.W. 3, Bundalal Giri, P.W. 4 and Nathuni Giri, P.W. 5. He has not mentioned the presence of Tapeshwar Singh, P.W. 6 as an eye-witness, but he stated that after the occurrence he came to the place of occurrence and started weeping.
According to this witness, two-three days before the occurrence, there was a quarrel between the appellant Devendra Singh and Triguna Singh, deceased, in connection with Sisum trees. This witness has admitted that his father and the father of P.W. 5 are brothers meaning thereby that he and P.W. 5 are cousins. P.Ws. 3 and 4 are the brothers of P.W. 5. He admitted that a Sessions case was pending at Chapra against him as well as against P.W. 3 Mani Lal Giri and P.W. 5 Mathuni Giri. In that case, appellant Devendra Singh was the complainant who had lodged a case of arson against him and his brother. That Sessions case was pending at the time of occurrence. He has also admitted that the wife of one Ram Raksha Singh had filed a criminal case against him in which appellant Devendra Singh had deposed against him. There was also a proceeding u/s 107, Cr. P.C. against him, but it is not known whether that proceeding had been initiated against him at the behest of appellant Rameshwar Singh. He has further admitted that deceased Triguna Singh had deposed against appellant Devendra in a case lodged by one Birendra Singh. Similarly Triguna Singh, deceased, had deposed against appellants Rameshwar Singh and Ghanshyam in a case lodged by Kapildeo Singh,
8. P.W. 2 Sudarshan Singh was projected as an independent eye-witness, but it appears that he was also on inimical terms with appellant Devendra Singh. He has deposed that on the date of occurrence at about 2 p.m. while he was going to his paddy field and was at a distance of about 100-150 yards to the north of the canal, he heard a noise coming from the direction of the canal. He saw that Triguna Singh, deceased, was being chased by 10-11 persons. Triguna Singh was raising an alarm for help. He saw that Nathuni Giri, P.W. 5. Kamla Giri, P.W. 1, Bundalal Giri, P.W. 4 and Manilal Giri, P.W. 3 ran to save him. However, Triguna Singh was surrounded in the sweet-potato field of Mangal Kuer by the persons chasing him. He identified all the 11 appellants who had surrounded the deceased. Rameshwar Singh exhorted his companions not to spare the deceased. Appellant Anil Singh assaulted Triguna Singh with a Farsa on the right side of his neck whereafter appellant Devendra Singh assaulted Triguna successively with his Farsa. Thereafter, all the appellants started assaulting Triguna Singh with their respective weapons. According to this witness, appellants Munna Singh and Sheokumar Singh were armed with Farsas. Ram Pujan Singh was armed with Garasa while Rameshwar Singh, Ghanshyam Singh and Ram Janam Singh were armed with lathis. Dinesh Singh and Hareram Singh were armed with Bhalas while Parshuram Singh was armed with pistol. When the witnesses attempted to rescue the deceased, Parshuram Singh pulled out his revolver and threatened them. This witness has further stated that after Triguna Singh had died, his father Tapeshwar Singh also came and stated weeping.
This witness has also admitted the enmity between the members of the prosecution party and the witnesses. He stated that there was a dispute regarding Sisum trees between deceased Triguna Singh and appellant Devendra and a day before the occurrence there was a quarrel between them. He also stated that one Kapildeo Singh had filed a criminal case against appellant Rameshwar Singh and Ghanshyam Singh in which deceased Triguna Singh and appeared as a witness-against Kapildeo Singh. Similarly, a month or two before the occurrence, Birendra Singh had lodged a criminal case against Devendra Singh and his nephew Anil Singh in which Triguna Singh, deceased was a witness for Birendra Singh. In cross-examination, this witness has admitted that there were two criminal cases pending against him at the time of occurrence. One of the cases related to an offence u/s 307, I.P.C. in which it is alleged that appellant Devendra Singh had been assaulted. According to this witness, the case was false. There was another criminal case against him, but he did not know under which section. In that case, appellant Devendra was a witness against him.
This witness has further admitted that a proceeding u/s 107, Cr. P.C. has been initiated against appellant Rameshwar Singh and one Kapildeo Singh. In that case, he is also a party along with Kapildeo Singh, but he could not say whether P.Ws. 1, 3 and 5 are also parties along with him. This witness has further admitted that he is a witness for Kapildeo Singh in a criminal case in which appellants Ghanshyam Singh and Rameshwar Singh and other members of his family are the accused. In that case, P.W. 5 is also a witness. This witness has also admitted that he had deposed in a criminal case against appellant Ram Janam Singh. The brother of this witness had filed a criminal case against appellants Parshuram Singh and his brother and appellant Ram Pujan Singh. This witness has also filed a case against appellants Parshuram Singh and Ram Pujan Singh and others. All these cases related to a period before the occurrence.
It would thus appear from the admissions made by this witness that his relationship with the members of the defence party are strained and in several cases, he has deposed against some of them and he has also filed cases against some of them. Therefore, this witness cannot be characterised as an independent witness because it appears from the record that he is inimically disposed towards some of the appellants.
9. P.W. 3 Manilal Giri has also supported the prosecution case. Like P.W. 1, he has also assigned specific role to Rameshwar Singh as the order giver and to Anil Singh and Devendra Singh as the persons who first attacked to the deceased. So far as Parshuram Singh is concerned, even according to* this witness, he had threatened the witnesses with his pistol and prevented them from coining to the rescue of the the deceased. In his examination-in-chief, this witness has mentioned about the presence of P.Ws. 1,2,4 and 5 at the time of occurrence, but he has not mentioned about the presence of P.W. 6 Tapeshwar Singh. According to him, apart from the four appellants named by him, the remaining appellants assaulted the deceased indiscriminately with their respective weapons. He stated in his cross-examination that at the time when the Investigating Officer came to the place of occurrence, all the witnesses as well as P.W. 6 Tapeshwar Singh were present. According to this witness Tapeshwar Singh, P.W. 6, made a statement before the Investigating Officer which was recorded.
10. P.W. 4 Bunde Lal Giri has also deposed on the same line as the other witnesses. He has also assigned the same role to appellants Rameshwar Singh, Anil Singh, Devendra Singh and Parshuram Singh. As against others, there is omnibus statement that all of them assaulted the deceased indiscriminately with their respective weapons. According to this witness by the time Triguna Singh, deceased, died his father P.W. 6 had come and started weeping.
11. P.W. 5 is the informant. In his deposition before the Court, he stated that on the order of Rameshwar Singh, Anil Singh attacked the deceased and caused a farsa blow on the right side of the neck of the deceased as a result of which he fell down. Thereafter, appellant Devendra Singh gave one or two farsa blows and the remaining appellants started assaulting the deceased with their respective weapons. In the first information report, this witness has assigned specific role to Hareram Singh stating that he had given four Bhala blows to the deceased, but such specific statement was not made by him in his examination-in-chief, though in cross-examination in paragraph 58, he stated that appellant Hareram Singh had assaulted the deceased with Bhala, but he did not remember how many times he had assaulted the deceased. After the assault, he went to the deceased and found him dead. Tapeshwar Singh, P.W. 6, father of the deceased had also come. He further clarified that Tapeshwar Singh, P.W. 6, did not come when the assault was in progress, but came after the appellants had left. According to this witness, the Investigating Officer first started recording the statement of Tapeshwar Singh, but finding that he was was not in a fit state of mind, he said that he would record his statement on the following day. Thereafter, the Investigating Officer recorded the statement of this witness which was treated as the fardbeyan.
12. P.W, 6 Tapeshwar Singh is the father of the deceased. According to him, he along with the deceased had gone to his maize field near the canal. While he stayed back, his son left. At about 2 p.m., he heard a noise and saw that a man wearing a green lungi and white ganji was being chased towards the north. The person who was being chased appeared to be his son. From the embankment of the canal, he saw five persons assaulting his son Triguna Singh who had fallen on the ground. The other six appellants were also present. Apparently, this witness had not seen the first part of the occurrence. According to this witness, he was present when the Investigating Officer came to the place of occurrence and wanted to record his statement, but did not do so because he was not in a fit state of mind. This witness claims to have stayed at the place of occurrence till 7 p.m. and in his presence, I.O. recorded the statement of the other eye-witnesses. This witness admitted that for about 6 to 7 months he had developed some problems with his eyes and had a weak eye-sight. He had developed cataract in both his eyes and he could identify a person from a distance of only 3 feet. He had difficulty in identifying any one who was standing at a distance of more than 3 feet. He was getting his eyes treated and he went to his doctor last in October, 1988. He admitted that he had seen the occurrence from the embankment of the canal. The person who was being chased was at a distance of 17 yards from him while those chasing were 15 yards behind the person being chased. This witness has admitted that his grand son Manoj had sent a telegram about the occurrence to the Superintendent of Police, but he could not say whether six of the appellants were not named in that telegram.
13. P.W. 9 is the Investigating Officer. He has deposed that at about 3 p.m. he heard a rumour about a murder having been committed in village Bahuara Patti. He recorded a station diary entry and left for the place of occurrence reaching there at 4. p.m. He recorded the fardbeyan of P.W. 5, inspected the place of occurrence and recorded the statement of witnesses. He stated that he did not record the statement of Tapeshwar Singh, P.W. 6 as he was not in a fit state of mind and he recorded the statement on the following day, i.e. on 18-11-1987. He admitted that he had recorded a station diary entry at the police station, but the number of that entry was not mentioned in the case diary. He also admitted that though he had seen P.W. 6, Tapeshwar Singh at the place of occurrence, this fact was not recorded in the case diary. In paragraph 19 of the case diary which was recorded at 12''O clock in the night, he had recorded that P.W. 6 was not in a fit mental state to give statement. The witness admitted that throughout the night he stayed at village Bahuara Patti and came back to the police station on the following morning at 7.45 a.m. He again went to the place of occurrence at 11 a.m. and assisted the Dy. Superintendent of Police and the Inspector of Police who had come to supervise the investigation. He returned to the police station at 4 p.m., but again came to village Bahuara Patti at 9.30 p.m. It was then that he recorded the statement of P.W. 6. He could not say whether the Supervising Officer had recorded the statement of P.W. 6. He also feigned ignorance about any telegram having been sent by Manoj son of the deceased to the Superintendent of Police. He denied the suggestion that he was feigning ignorance because as many as six of the appellants were not named in that telegram.
14. P.W. 7 Anuj Kumar Singh is the witness to the seizure of two lathis, one farsa and the Bhala from near the house of appellant Rameshwar Singh. His evidence is not very material, because it does not appear that the material objects were produced before the Court. In any event, there is no report of the Chemical Examiner to establish that the weapons were blood stained and may have been used in the commission of the crime.
15. P.W. 10 is also a formal witness who has proved the formal first information report which was recorded at the police station on the basis fardbeyan of P.W. 5.
16. It would thus appear from the evidence on record that as may as 11 persons assaulted the deceased. The witnesses have assigned specific roles to 4 of the appellants, namely, Rameshwar Singh, Anil Singh, Devendra Singh and Parshuram Singh. As against the others, there is an omnibus allegation that they had also assaulted the deceased indiscriminately with their respective weapons. It was submitted on behalf of the appellants that having regard to the strained relationship between the appellants on the one hand and the witnesses on the other, the possibility of false implication of the appellants could not be ruled out. In support of this submission, it was urged that the medical evidence on record would disclose that the number of injuries were few and if really the prosecution witnesses were speaking the truth, many more injuries would have been found on the person of the deceased if really as many as 11 persons assaulted him. Before considering the submission urged on behalf of the prosecution, we may notice the relationship between the appellants inter se and the eye-witnesses. It appears that seven of the appellants belong to the same family. Appellants Rampujan Singh and Rameshwar Singh are brothers being the sons of Suraj. Appellants Munna Singh and Sheokumar Singh are the sons of Rameshwar Singh. Appellants Parshuram Singh, Ramjanam Singh and Ghanshyam Singh are the cousins of appellants Rampujan Singh and Rameshwar Singh being the sons of the brothers of Suraj.
17. Appellants Anil Singh and Hareram Singh are brothers being the sons of Phuldeo.
Appellants Devendra Singh and Dinesh Singh are uncle and nephew. It is not clear from the record whether appellants Anil Singh, Hareram Singh, Devendra Singh and Dinesh Singh are related to other appellants-17. So far as the witnesses are concerned, P.Ws. 1, 3 and 4 are brothers and P.W, 5 the informant, is their cousin. All these four witnesses belong to the same family. P.W. 2 is not related to the other witnesses, but it appears from the record that he had serious disputes with appellant Devendra Singh, Rameshwar Singh, Ghanshyam Singh, Parshuram Singh and Rampujan Singh. P.W. 6, Tapeshwar Singh is the father of the deceased.
18. It is established on record that the deceased was on inimical terms with appellant Devendra Singh. Only a day or two before the occurrence, there was a quarrel between the deceased and appellant Devendra Singh regarding the Sisum trees which had grown on the ridge between their fields. The deceased had also deposed against appellant Devendra Singh in a case lodged by Birendra Singh. The deceased had also deposed against Rameshwar Singh and Ghanshyam Singh in a case filed by Kapildeo Singh.
19. So far as the prosecution witnesses are concerned, it is admitted that there was a sessions case pending at Chapra against P.Ws. 1, 3 and 5, In that case, Devendra Singh was the complainant in which he had alleged that the accused had set fire to his house. It is also established on record that the wife of Ram Raksha Singh had filed a criminal case against P.W. 1 in which appellant Devendra Singh had deposed against him. P.W. 1 also admitted that there was a 107, Cr. P.C. proceeding against him, but he did not know whether that proceeding was initiated at the behest of appellant Rameshwar Singh. It appears from a suggestion put to P.W. 2 that in that proceeding, apart from P.W. 21, P.Ws. 1,3 and 5 were also parties along with Kapildeo Singh who had disputes with appellant Rameshwar Singh. So far as P.W. 2 is concerned, he admitted that he was an accused in a criminal case u/s 307, I.P.C. in which the injured was appellant Devendra. In another criminal case, appellant Devendra had appeared as a witness for the prosecution against him. There was also a proceeding u/s 107, Cr. P.C. between Rameshwar Singh and others on the one hand and Kapildeo Singh and others on the other in which he was on the side of Kapildeo Singh. This witness further admitted that in a case filed by Kapildeo Singh against appellants Rameshwar Singh, Ghanshyam Singh and other members of his family, he was witness for Kapildeo Singh. In that very case, P.W. 5 was also a witness. He has also admitted that appellant Ram Janam Singh had deposed against him in a criminal case. The brother of this witness had filed a criminal case against appellant Parshuram Singh arid his brother and appellant Rampujan Singh. This witness had also filed a case against appellants Parshuram Singh, Ram Pujan Singh and others. All these cases related to a period before the occurrence.
20. Having regard to the strained relationship between the appellants on the one hand and the deceased and the prosecution witnesses on the other, it becomes imperative for this Court to apply the rule of caution. The possibility of false implication of innocent persons cannot be ruled out in a case where the witnesses are inimically disposed towards the accused. No independent witness who can be said to be impartial has been examined in this case, though the occurrence took place in an open field in broad-day-light. We do not attach too much significance to this fact because independent witnesses are reluctant to depose in criminal cases for fear of retribution. We, therefore agree with the submission urged on behalf of the appellants that the testimony of the eye-witnesses has to be critically scrutinised applying the rule of caution.
21. We shall first consider the medical evidence on record. From the post-mortem report, it appears that only four injuries were found on the person of the deceased. The first injury was incised wound on the right side of the neck and all the witnesses are unanimous that this injury was caused by appellant Anil Singh. The second injury is an incised wound on the right index finger. The injury being of such nature, it would indeed be difficult for any witness to notice precisely how such an injury was caused. It appears that such an injury may have caused when the deceased took defensive action to ward off the blows on him. The 3rd injury is an abrasion on the right midshin. Such injury could have been caused to the deceased when he was running away or when he had fallen. Injury No. 4 consists of two incised wounds parallel to each other on mid scalp. This injury has been attributed to the successive blows given by appellant Devendra Singh.
22. It was submitted on behalf of the appellants that such being the number and nature of injuries, the prosecution case that all the appellants assaulted the deceased cannot be believed. On the other hand, Counsel for the State submitted that in the inquest report, three more injures are mentioned. It was submitted on his behalf that the doctor conducting the post-mortem examination has admitted that he may have missed some of the injuries trivial in nature, and on the basis of this statement it was submitted that the other injuries were not noticed by P.W. 8 Dr. Rambali Singh who performed the post-mortem examination on the dead body of the deceased. We have examined the inquest report and it does not appears to us that the other injuries mentioned in the inquest report can be said to be trivial in nature so that P.W. 8 may have missed to notice them. P.W. 8, no doubt, stated that he may have missed some injuries trivial in nature, but he also stated that he had no basis to say so. Obviously, what he meant was that some trivial injuries may not have been noticed by him giving margin for human error. Such a statement cannot be understood to mean that the doctor would not have noticed the injuries of serious nature which were apparent. Unfortunately, neither of the two witnesses to the inquest report has been examined at the trial, and therefore, we cannot place much reliance on the inquest report. We are also satisfied that there is no reason to doubt the testimony of P.W. 8 who had conducted the post-mortem examination on the dead body of the deceased. If he could notice the abrasion 1" in length on the right midshin, he would have certainly noticed the other injuries mentioned in the inquest report, if such injuries really existed. It therefore, appears to us that the injuries caused to the deceased could have been caused by two or three persons and the number and nature of injuries found do not support the case of the prosecution that as many as 11 persons assaulted him with their respective weapons which included Farsa, Garasa, Bhala and lathis. In fact, there is no injury caused by Bhala, and though the case of the prosecution is that the deceased was indiscriminately assaulted with Bhalas and lathis, there is one only abrasion which may be attributed to a lathi blow. The story of indiscriminate assault by so many persons does not appear to us to be true.
23. We are also of the view that there is considerable doubt about the presence of P.W. 6 Tapeshwar Singh at the time of occurrence. Apart from the fact that he appears to be a person with very weak eye-sight who may not have been able to identify the assailants, there are other reasons which lead us to suspect his presence at the time of occurrence. P.W. 5 has stated that this witness had come after the assailants had left. P.W. 3 has not named P.W. 6 as an eye-witness in his examination-in-chief, but has subsequently stated that he was present when the I.O. came to the place of occurrence. P.W. 4 has deposed that P.W. 6 came after the deceased had died. According to P.W. 3, the statement of P.W. 6 was recorded at the place of occurrence. P.W. 5 also states that initially the I.O. started recording the statement of P.W. 6, but discontinued recording his statement finding him to be not in a fit state of mind. The Investigating Officer, P.W. 9 on the other hand states that he had seen P.W. 6 at the place of occurrence, but since he was not in a fit state of mind, he did not record his statement. This fact he had entered in the case diary at 12''O Clock in the night. It is indeed surprising that though P.W. 6 was present at the place of occurrence till 7 p.m. and in his presence, the statement of other witnesses were recorded, his statement was not recorded. The Investigating Officer was in the village the whole night and yet he did not record his statement. On the following day, the Investigating Officer came to the village at 11 a.m. and was there till 4 p.m. Even then he did not record the statement of this witness. He went back to the police station at 4 p.m. and again came to the village at 9.30 p.m. It was then that he recorded the statement of P.W. 6 for the first time. We are not persuaded to believe that P.W. 6 was in such a state of mind that his statement could not be recorded on the date of occurrence and also on the following morning when the I.O. returned from the police station. The recording of his statement for the first time after 9.30 p.m. on 18-11-1987 creates a serious doubt in our mind as to the presence of this witness at the time of occurrence and about his having seen the occurrence. We therefore, do not place any reliance on this witness.
24. In view of the foregoing, we have no doubt about the fact that the deceased was severely assaulted by some of the appellants at the time and place alleged by the prosecution as a result of which he died. The question still arises as to which of the appellants are proved to have committed the offence, since the possibility of false implication cannot be ruled out.
25. The case of the prosecution is consistent that appellant Rameshwar ordered assault and .thereafter, Anil Singh and Devendra Singh assaulted the deceased with Farsas. The evidence is also consistent that Parshuram Singh threatened the witnesses when they wanted to resque the deceased. The deceased had deposed against appellant Rameshwar Singh and he had also deposited in a case of theft against appellants Devendra Singh and Anil Singh. Only a day or two before the occurrence, there was a serious quarrel between the appellant Devendra Singh and the deceased relating to a dispute over the Sisum trees. Since the evidence against them is consistent, we have no doubt about the participation of these four appellants.
26. So far as the remaining appellants are concerned, the allegation is that all of them indiscriminately assaulted the deceased. Appellants Hareram Singh and Dinesh Singh are said to be armed with Bhalas. No injury caused by a Bhala has been found on the person of the deceased. Appellant Munna Singh has not even been named in the first information report. Appellants Ghanshyam Singh and Ram Janam Singh are said to be armed with lathis and it was also stated by some of the prosecution witnesses that they indiscriminately assaulted the deceased with lathis and the number of blows showered on the deceased could not be counted. That part of the prosecution case does not appear to be true, having regard to number and nature of injuries found. Appellant Ram Pujan Singh was said to be armed with Garasa, but apart from the incised injury attributable to the farsa blows of Anil Singh and Devendra Singh, no other incised injury which could have been caused by garasa has been found. The incised wound on the right index finger, as we have observed earlier, may have been caused while the deceased was trying to defend himself against the farsa blows aimed at him by appellants Anil Singh and Devendra Singh. We are, therefore, of the view that these appellants are at least entitled to the benefit of doubt.
27. In these circumstances, appellants Hareram Singh, Dinesh Singh, Ghanshyam Singh, Shivkumar Singh, Ram Janam Singh, Ram Pujan Singh and Munna Singh are acquitted of the charges levelled against them. The remaining appellants, namely, appellants Rameshwar Singh, Anil Singh, Devendra Singh and Parshuram Singh are found guilty of having committed the murder of Triguna Singh. Since we have doubted the participation of remaining appellants, the conviction of these appellants under Sections 302/149, I.P.C. is converted to one u/s 302/34, I.P.C. The conviction and sentence of appellants Anil Singh and Devendra Singh u/s 148, I.P.C., is upheld. Similarly, the conviction and sentence of appellant Rameshwar Singh u/s 147, I.P.C. is upheld. The sentences are directed to run concurrently.
28. In the result, Criminal Appeal Nos. 417 of 1993, 434 of 1993 and 452 of 1993 are allowed and the appellants therein are acquitted of all the charges. They have been released on bail. Their bail-bonds are discharged. It is reported that appellant Ram Punjan Singh in Cr. Appeal No. 452 of 1993 died during the pendency of this appeal. Criminal Appeal Nos. 405 of 1993, 450 of 1993 and 501 of 1993 are dismissed. Except appellant Anil Singh who is in custody, the other appellants are on bail. Their bail-bonds are cancelled and they are directed to surrender to serve out the remaining part of the sentence.
29. Criminal Appeal No. 418 of 1993 is partly allowed inasmuch as appellant Munna Singh is acquitted of the charges levelled against him. He is on bail and his bail-bonds are discharged. The appeal insofar as it relates to Rameshwar Singh is dismissed. His bail bonds are cancelled and he is directed to surrender to serve out the remaining part of his sentence,
A.K. Sinha, J.
30. I agree.
