1. The above two appeals arise out of the judgment dated January 7, 1977 of the learned Sessions judge, Bhilwara where by the appellant Mohansingh in Appeal No. 30 of 1977 and the accused Saniya in Appeal No. 71 of 1977 were convicted of the offences Under Sections 148 and 302, IPC and the appsllants Najariya, Bhagwaniya, Kaniya, Manohariya and Baliya were convicted of the offences Under Sections 147 and 302/149, IPC Under Section 148, IPC the appellants Mohansingh and Saniya have been awarded 2 years' rigorous imprisoment each and Under Section 302, IPC imprisonment for life. The other appellants in Appeal No.71 of 1977 were awarded 1 year's rigorous imprisonment for the offence Under Section 147 and imprisonment for life Under Section 302/149, IPC. The other two accused-appellants namely, Heeriya and Rodiya were acquitted of the offences Under Sections 147 and 302/149, IPC.
2. The prosecution case as unfolded during the trial, in brief, is that on 26.12.1975 at about 7 or 7.30 am. Mst. Bhanwarkanwar (PW 6) was in the Kitchen of her house in village Sardarji-ka-Kheera. Her husband Nand Singh (deceased) was also in the house. Her husband was sitting out side the Kitchen on a cot. In the other room, her children, sister and her husband's younger brother's wife Mst. Sajjan Kanwar (P.W 7) aged about 16 years were there. Ram Singh (P.W 5) aged about 30 years, the brother of Mst. Sajjankanwar was also in the boundary of the house. Gordhansingh (PW 8) aged about 18 years, the younger brother of Nandsingh had gone to the hilly forest for bringing fuel wood. It is said that the accused-appellant Mohansingh the maternal uncle of Nandsingh, accompanied with the eight accused-persons, who were 'Kanjar' by caste, came to the house of Nandsingh. First they pelted stones at Ramsingh and towards the house. Nandsingh, thereupon, entered into the kitchen and the kitchen was bolted from inside. Thereafter, they entered into the verandah of the houae. Mohansingh shouted for Nandsingh to come out. Mohansingh was armed with a 'Kulhari' and other Kanjars were armed with farsa and lathis, They started knocking the door of the kitchen with force Mst. Sajjankanwar (P.W.7) had also bolted the reom form inside. It is said that Mst. Bhanwarkanwar (PW. 8) then called Mst. Sajjan Kanwar (PW. 7) to open the door Thereupon, Mohansingh and Kanjars entered into that room, in which Mst. Sajjankanwar was there. They damaged the belongings lying in that room A blow was wielded on Sajjan Kanwar by Mohansingh, which was warded off by one kanjar saying not to wield a lathi on a woman Thereafter, the accused-persons came out from that roon and then asked, where Nandsingh is Nandsingh concealed himself under the cot, Mst. Bhanwarkanwar (PW 6) then uttered that he had gone to attend the court. The accused Najariya, thereupon, said that Thakurani referring Mst. Bhanwarkanwar, does not speak a lie. Mohansingh then said that he had seen him sitting on the cot. The accused Bhagliya then told after peeping into the window having iron bars that Nandsingh is sitting beneath the cot, it is alleged that accused Mohansingh then went to fetch one iron 'subbal' and then with the use of sabbel, the door and its frame were broken, whereby, the door fell down. Nandsingh came out of the kitchen. Soon thereafter, he was caught hold of by the accused Najariya, Bhagwaniya, Saniya and Manohariya. At some distance of the house, the accused Mohansingh inflicted a blow on the head of Nandsingh with Kulhari and the accused Saniya inflicted a blow on his neck with farsi, Mohansingh and Saniya with their weapons and the other accused-persons with lathis then inflicted the blows The accused-persons then stated from the place of occurrence. But, it is said that the accused Mohansingh called them and asked them to threw away the body in the well. Thereupon, the accused Heeriya. Saniya, Kaniya and Mohansingh carried the body of Nandsingh end threw it in the well which is situated just close to the kitchen. The accused-persons thereafter left the place. Mst. Bhanwarkanwar (PW 6) then went to the hilly forest and informed of the occurrence to Gordhansingh (P.W.8) In the meantims, Ramsingh had gone to the village and called some villagers. One Jagannath Bali was sent it to the police station, Mandalgarh at a distance of six miles, from the place of the occurrence with a written report but it appears that, that report was not entertained. Two constables, however, visited the place of occurrence Thereafter, Gordhansingh (P W. 8) accompanied with Ramsingh, went to the police station, Mandalgarh and lodged a report at 5.15 p.m. on that very day. In the report Ex p/8 lodged by Gordhansingh (PW 8) has stated that they had gone to the hilly forest for fetching fuel wood. His brother's wife Mst. Bhanwarkanwar (P.W. 6) came from the house raising shrieks and informed that his brother had been killed by Mohansingh, Kaniya, Rodiya, Saniya, Bhagwaniya and Heeriya with lathis, farsi and Kulhari and they had thrown the dead body in the well. At that time, Ramsingh his bother in law (wrongly stated to be his brother-in-law) was also there at the house. He also stated that he will produce the witnesses on the spot. His brother has been thrown in the well after killing him due to enmity. A case Under Section 302, IPC was registered by Gyansingh Verma. Head Constable (P. W. 4). He recorded the statement of Gordhansingh (P.W.8) and visited the place of occurrence He interrogated the witnesses in the night and in the morning, he prepared the site-note Exp/9 and site-plan Ex p/10 and conducted the spot investigation The dead-body of Nandsingh was taken out from the well and panchnama was prepared (Exp/11). Blood-stained stones and Takaliya were seized vide Ex p/ 13 and Ex.p/14 Thereafter he handed over the investigation to the Station House Officer Shri Chhaganlal (P.W. 9) on 26-12-1975, the Station House, Officer had gone to Bhilwara on Government duty. On return from Bhilwara he visited the site on 27-12-75 and he also took Dr. Dwijendra Mohandas (P.W. 1) with him, who conduced the autopsy on the dead-body of Nandsingh. The clothes of the deceased Nandsingh namely, dhoti and sweater stained with blood, were seized and packed vide Exp/6. He arrested Mohansingh on 29.12.75 and he gave information Ex.p/11 in respect of his kulhari. On his information and at his instance a kulhari was recovered vide Exp/22. Iron Sabbal was produced by Nahrsingh, which was seized vide Ex p/23 The other accused were arrested. On 2.1.1976 the accused Saniya gave information regarding his farsi Ex.p/2 and got the same recovered vide memo Ex.p/3. on 11.1976 the accused Mohansingh gave information Ex p/25 in respect of his blood-stained shirt and dhot iand he got the same recovered vide memo Ex.p/2 lathis were also produced by the accused Heeriya Kaniya, Bhagwaniya and Manohariya. After completion of the investigation, charge-sheet was presented against the nine accused-persons who were ultimately tried by the learned Sessions Judge, Bhilwara. The accused Mohan singh and Saniya were charged for the offences Under Sections 148 and 302. IPC simpliciter and rest of the acccused-persons were charged for the offences Under Section 147 and 302/149, IPC. The accused-persons pleaded not uilty to the charges and claimed to be tried. At the trial, the prosecution examined in all nine witnesses. The statement of the accused-persons were recorded, in which, they denied the prosecution case. In defence, the accused persons examined P.W. 1 Dr. Dwijandra Mohandas. After hearing the arguments, the learnrd Sessions Judge recorded the convictions and sentences of the 7 accused-persons as aforesaid and entered acquittal of the two accused persons as stated above.
3. We have heard Mr L.R. Calla Amicus Curiae for the accused Mohansingh and Mr. N.P. Gupta, learned Counsel for the accused-appellants in Appeal No 7 i of 1977 and Mr. M.C Bhati, learned public prosecutor for the State.
4. Before examining the case and dealing with the arguments advanced before us, it would be proper to notice the iujuries, which have been found by Dr. Dwijendra Mohandas (P.W 1) on the persons of Nandsingh deceased. Dr. Dwijendra Mohandas conducted the autopsy at 12.30 p.m. on 27.12. 1975. He found the following 25 external injuries on the person of Nandsingh.
(1) Bruise 3 'x 1/2' oblique vertical on the middle of anterior surface of right surface of right thigh.
(2) Incised wound 4' x 1/2' oblique adjacent to No. 1 injury with linear scratch 1 1/2' lower and in continuation on the medial surface of middle of right thigh.
(3) Incised wound 2'x 1' oblique situated half inch below the No. 2 wound.
(4) Incised wound 5' x 2' x 1 1/2' vertical with line scratch 2' upper and in continuation on the anterior surface of lower and of left thigh, running downwards patelle.
(5) Incised wound 1/2' xl/2' 1/3' oblique with line Scratch 2' upper end in continuation and line scratch 4 1/2' lower and in continuation situated 2' down wards and tight after nipple extended from the left Fourth inter-costal space to the left costal arch.
(6) Bruise 7 1/2' x 1' transverse on the epigastraim touched to mid-part of No 5 wound.
(7) Lacerated wound 1/2' x 1/4' 1/3' transverse situated 1' below the knuckle of right index finger.
(8) Incised wound 2' x 1' x 3/4' transverse with deformity and compound fracture on the lateral surface of upper and of left arm.
(9) Bruise 2 1/2' x 1/2' transverse vertical on the left deltoid.
(10) Incised wound 3' x1' x 1/2' oblique on to lateral end of the spine of left scapula.
(11) Linear scratch (sharp 3 1/2' vertical on the lateral surface of left side of neck behind the middle of sternocelei domastoi dius muscle.
(12) Linear scratch, (sharp) 3 1/2' zig zag vertically oblique, on the occipital tri-angle of left side of neck.
(13) Incised wound (14) 1.1/2'x l/2x whole thickness of skin pelled, vertical, just below the middle of left scapular spine
(14) Incised wound 5.1 /2'x 2'' x 2'x (bone touched) transverse below the left bar lobule and 1' infront of left lobule posteriorly extended backward to the nuchal furrow of neck.
(15) Incised wound 7'x 1/2x scalp cap come off extended from the left parotid region runs upward 1.1/2 above the height of left auricle and to the back of middle of left auricle. Scalp cap hang and turn on the level of auricle (horse shoe shaped).
(16) Incised wound 4'xl/2x 1.3/4' oblique extended half inch below the medial angle of right eye brow across the nose to the left auxiliary prominence.
(17) Incised wound 1'x 1?/4'x 1/2' 'x 1/2' transverse situated half inch of the No. 16 wound on the body of left maxilla.
(18) Lacerated wound 3/4x 1/2' transverse just below the middle, of left eye brow.
(19) Incised wound 2.1/2'x 1/6' x1/2 (obliquely to vertical bone touched) situated 1/2' to the right of lambdoid suture of head, conveity on the left side of head.
(20) Incised wound 2.1/4'x 1/6'x 1/2' (obliquely vertical, scalp depth) oblique on the lambdoid suture of head.
(21) Lacerated wound with bruise 1'x 1//'lacerated wound 1/2'x 1/3' x1/4' vertical situated 2' to the left of No. 29 wound.
(22) Incised wound 8'x 1/4' bone fracture (smashed brain is on the view) oblique from below the lateral angle of right eye brow across wide of mid point of two frontal emminenees posteriorly extended backward on the head.
(23) Incised wound 3' x 1/4' x bone fracture (smashed brain is on the view) transversely joined the above and of No. 22 wound on the right direction.
(24) Incised wound 4 1/4'x 1/4' x bone fracture (mashed brain is on the views) entended just above of No. 17 wound posteriorly backwards 11 /4' to the left of lateral angle of left eye, touched with the wound No. 2-3 at the mid point of the two frontal eminences.
(25) Incised wound 1 1/2' x 8/4' fracture on the left side of upper lip.
5. According to him, injuries Nos 8, 6, 7, 9, 88 and 28 were caused by lathis and other injuries were possible by Kulharis having long sharp edges. On opening the body, be observed as under:
Scale--(i) Celluloid tissues of the scalp stained. Effusion of blood under the scalp cap. Fracture extended on the head 4' infront of left parietal emminence of left ear and opposite to right super aulliary arch of frontal bone, Membrance tern smashed brain escaping through the open fracture, frontal bone crumbling into 9 pieces (right side seven pieces, upper one piece and left side one piece).
(2) Alveolar process of maxilla fracture and dislocation of upper front multiple teeth.
(3) All incisor tooth, camine and first pre-molar tooth dislocated on the left side central incisors and canine dislocated on the right side.
Femur Bone--(1) 5' x 1/4' x 1' cut vertical on the lower of left leg and of left femur to the lateral condyle of left femur, lateral side of left patella cut of compound transverse fracture of the shaft of upper one third of left femur.
(2) There was a fracture of vertabras atlas on the left side.
(3) Nasal bones fractured. Nasal spine of frontal bone fractured.
(4) Anterior surface of the body of left maxilla fractured.
(5) Sphenoid and ethnoid bone fractured.
5. According to him, the cause of death of Nandsingh deceased was by coma and shock due to multiple fatal injuries of the skul bones with brain stem and other parts of the body. Injuries No. 22, 23 and 24 individualy were sufficient in the ordinary course of nature to cause death. All the injuries were ante mortem in nature.
6. In order to bring home the guilt to the accused-appellants, the prosecution relies on the occular testimony of P.W. 5 Ramsingh, P.W 6 Mst. Bhanwarkanwar and P.W. 7 Mst. Sajjankanwar corroborated by the medical evidence and the first information report Exp/8 lodged by Gordhansingh (P.W. 8) on the day of occurrence and the circumstantial evidence of the recovery of blood-stained kulhari and farsi and blood-stained dhoti and shirt of the accused Mohansingh It is to be seen as to whether the prosecution has been able to establish the guilt against the accused -appellants beyond all manner of doubt.
7. We may first consider the evidence of eyewitnesses.
8. P.W. 5 Ramsingh happened to be at the house of the deceased Nandsingh. At the time, when he was untying cattle, Mohansingh and kanjars arrived at the house of the deceased. The accused Mohansingh was known to him from before as he was the maternal uncle of Nandsingh. Mohansingh was armed with kulhari and the kanjars were armed with 'farsa' and 'lathis'. Aceording to him, the accused-persons started pelting stones at him and towards the house. As he was all alone out side the house within the boundary wall of the house, he could not enter into the house He went to the village to call the people, but no villagers turned up. When he come back from the village then according to him, he saw the occurrence. The accused persons brought the deceased Nandsingh out of the house and surrounded him and started inflicting blows with lathis and kulharis. He also saw that Nandsingh was dragged and thereafter, thrown into the well. The witness also stated that some of the villagers had witnessed the occurrence. He further stated that Mst. Bhanwarkanwar (P.W. 6) and Mst. Sajjankanwar (P.W. 7) were inside the house. He identified the accused-appellants namely. Saniya Kaniya, Rodiya, Najariya and Bagliya in jail and further stated that all the accused persons participated in the 'Mar Feet'. This witness was confronted with his police statement, EX. D/1 portion A to B. In portion A to B,of his police statement, the witness did not state that he saw the accused-persons surrounding the deceased Nandsingh, conflicting blows on him and dragging him in order to throw him into the well. According to his police version, when the accused-persons started throwing stones at him and towards the house, he ran away towards the village and when he returned from the village, Mst. Sajjan Kanwar (PW 7) informed him that Nandrsingh has been thrown into the well after being killed by Mohasingh and the kanjars. The witness has materially improved upon his police version and posed himself as a witness of the main occurrence. This part of his statement cannot be believed that he saw from the house that accused-persons taking out the deceased and then encircling him and beating him with lathis and then dragging and throwing him into the well. But his presence at the spot can not be doubted. It was he, who accompanied Gordhansingh (PW 8) when he went to lodge the report. His presence is further established by the testimony of MST. Bhanwarkanwar and Mst. Sajjan Kanwar. He had come to his sister Mst. Sajjankanwar so his presence could be there at the house of Nandsingh. From his statement, it can be taken as proved that on 26-12-1975 in the early morning he was at the house of the deceased Nandsingh, when the accused Mohansingh armed with kulhari and the Kanjars armed with gandasi and lathis arrived at the bouse of Nandsingh has started pelting stones at him and towards the house of Nandsingh.
9. Before dealing with the statement of Mst. Bhanwar Kanwar (PW 6). we may first deal with the testimony of Mst. Sajjankanwar (PW 7) Mst. Sajjan Kanwar bad come to the house of her i-laws only 8 days prior to the occurrence. According to her, she was busy in grinding flour, when her Jethani Mst. Bhanwarkanwar came to her room marked 8 in the site plan (Ex. p/10) adjoining the kitchen marked, 1. When Mst. Bhanwarkanwar was going out of the room, the stones started coming. Thereupon, Mst. Bhanwar Kanwar asked her to bolt the door from inside and then she bolted her room. When the accused Mohan Singh and the kanjars started breaking the door of the kitchen, then her Jethani called her to open the door. Thereupon, she opened the door. She knew Mohansingh, but she did not know the kanjars, so she could not identify them. When she opened the door, the accused Mohansingh entered into her room. The accused Mohansingh wielded a lathi on her but one of the kanjars warded it off. Then, they damaged the belongings lying is the rooms. Thereafter, they started breaking the door of the kitchen and continued to ask Nandsingh to come out. Then, Mohansingh fetched a sabbal and started breaking the door. The door of the kitchen fell down. Thereafter, the deceased Nand Singh came out of the kitchen The accused persons then carried Nandsingh near to the Tapri and started beating him. According to her, the accused Mohansingh was armed with kulhari and pointing out the accused Saniya, she stated that he was armed with 'Tabalwali Kulhari'. Both of them i.e. Mohansingh and Saniya inflicted blows wirh kulhari and the rest with lathis. She further stated that after beating Nandsingh the accused Mohansingh brought three Kanjars and then they carried the body of Nandsingh and threw it into the well. She also painted out the accused Bagliya and said that she identified him in jail In cross-examination, she stated that she saw the 'Maar Peet' from a distance of 10-15 paces from the back side of the house concealing herself One can see the place of occurrence from behind the back of the house, if one sees leaning oneself, Mr N.P. Gupta, learned counsel for the accused-appellants submitted that the occurrence could not have been seen from behind the back of the house. The statement of the witness is inconsistent. The back side of the house is at a great distance and according to her, she saw the occurrence from a distance of 10-15 paces. It may be stated that on account of this inconsistency, the whole of her statement cannot be said to be incredible. Her presence at the house was natural. Being related, she could identify the accused Mohansingh. Her statement otherwise inspires confidence. She clearly stated that she had come 8 days prior to the occurrence to her Susral, so she could not identify the kanjars. Out of the rest of the accused-persons, she had identified the two accused-persons merely Saniya and Bagliya. In relation to the identification of the two accused-persons whether reliance can be placed on her testimony requires consideration. But from her statement, it is amply proved that the accused Mohansingh accompanied with the Kanjars came to the house of Nandsingh and the occurrence took place as alleged by her. A criticism has been levelled against her testimony, when she states that the accused Saniya was armed with Kulhari having Tabbal According to Mst. Bhanwar Kanwar (PW. 6) the accused Saniya was armed with lathi having farsa and Mohansingh was armed with Kulhari. Tabbalwali Kulhari was recovered from the possession of the accused Mohansingh, recovery memo whereof is Exp/22, whereas, the lathi having farsa was recovered from the possession of the accused Saniya, recovery memo whereof is Ex.p/8. So the statement of Mst. Sajjankanwar (PW.7), so far as the weapon of Saniya is concrned, does not get support from the recovery memo and from the statement of Mst. Bhanwarkanwar. In this connection, suffice it to say, that description of weapon of the offence by this witness may not be correct, but from her statement, it can be found that the accused Saniya was the only Kanjar who was armed with sharp-edged weapon, Mst. Sajjan Kanwar is aged only 16 years. It may be that the description of the weapon as given in Ex p/3, according to her, may be tabbalwali Kulhari. Thus, this criticism, to our mind, is not of such consequence, which may, in my view, affect the testimony of this witness. The narratio of the occurrence is quite clean and clear. The sequence of events relating to the occurrence appears to be neatly stated by her.
10. Now, we take up the testimony of Mst. Bhanwar Kanwar (PW 6) the principal and star witness of the prosecution. In the beginning, we have narrated the prosecution story in the light of the statement of this witness as to how the occurrence took place and what was the sequence of events relating to the occurrence. Her description of the events is vivid and sufficiently a detailed one. She has stated that her husband was sitting out side the kitchen on a cot and came into the kitchen when the accused-persons had arrived. According to her, the accused Mohansingh was accompanied with 8-10 kanjars and they started pelting stones and raising shouts and abuses asked her to turn Nandsingh out. The accused persons started beating the door of the kitchen with lathis. It may be stated that when the accused-persons arrived at the bouse, Mst. Sajjankanwar (PW 7) had also bolted the door of her room inside, on being asked by Mst. Bhanwar Kanwar (PW 6). Mst. Bhanwarkanwar also bolted the kitchen from inside. When the accused-persons were trying to break upon the door of the kitchen then she asked Mst. Sajjankanwar to open the door. Thereupon, she opened the door of the adjoining room marked 8. On her opening the door, the accused Mohansingh and kanjars entered into that room. When they found that Nandsingh was not there in that room, after damaging the belongings, they again directed themselves towards the kitchen. Then, she further narrated the entire occurrence in her statement, as to how the door and frame were broken and what Najariya and Bagliya said and what Mohansingh said and how Najariya, Bhagwaniya, Saniya and Manohariya caught hold of Nandsingh, when he came out of the kitchen and how he had been beaten near the Tapti She specifically stated that the accused Mohansingh armed with his kulhari inflicted a blow on the head of Nandsingh and Saniya inflicted a blow on his neck with a lathi having farsi. Then, she also stated that the accused-Heeriya, Moharfingh and Kaniya threw the body of Nandsingh into the well. Much criticism has been levelled against the testimony of this witness and most of the criticism is directed on the question that the identity of the kanjars was not disclosed by her. As regards, the identity of the accused-persons'; other than Mohansingh, according to Mr.N.P. Gupta, here is the solitary testimony and when she does not disclose the identity to others, her solitary testimony should not be relied upon. He pointed out that the prosecution case suffers from serious infirmities. Admittedly, the occurrence was witnessed by some villagers but none of them has been examined. Besides these, none of witnesses has be en examined to whom identity of the kanjars was disclosed. Her conduct also appears to be unnatural or improbable, when she states that soon after the occurrence, she went to the forest to inform Gordhan Singh (P.W. 8) In the sequence of the events, according to her, the stones were not thrown in the beginning but afterwards, which version is not supported by Ramsingh (P.W. 5) , and Mst. Sajjankanwar (P.W. 7). It was also pointed out that Mst. Sajjankanwar has not supported the version that Nandsingh was sitting on the cot in the beginning and thereafter, he entered into the kitc hen. In connection with the identity of the assailants and the minner of occurrence, it was also vehemently ured that no corroboration can be sought from; the first information report, in view of the fact that the first information report, which was sent along with Jagannath Balai, has not seen the light of the day In the absence of the earliest version by Gordhan Singh (P W. 8) can not be taken into consideration and the later version Ex.p/8 is inadmissible and can not be accepted as the first information report.
11. Much would depend on the assessment and evaluation of the statement of Mst. Bhanwarkanwar (PW 6). In the present case, it has not been disputed that she knew the kanjars by name. The crucial question in the case relates to the identity of the assailants other than Mohansingh. Mohansingh was known to all the witnesses by name and ail the three witnesses in their statement named him and they have also stated that he was armed with a kulhari. The question only remains as to who were the rest of the assailants. Such like criticism levelled against the testimony of Mst. Bhan-war kanwar, in our opinion, is immaterial, irrelevant and insignificant that her conduct was abnormal in going to the jungle at a distance only about a mile for informing her devar that she stated that first they entered into the verandah and then stated that Mohan Singh and Kanjars in number 8-10, pelted the stones. While narrating the incident, she might have, instead of stating first that the stones were pelted first and then, they entered into the verandah, narrated in the reverse order, which was wrong. As regards her conduct in visiting the forest, it may be pointed out to Ramsingh (PW 5) was stranger to the place and so there was nothing un-natural for her to have gone to the forest in order to inform Gordhansingh (PW 8).
12. It is true that there were some persons, who had witnessed the occurrence but none of them was examined by the prosecution. PW 6 Mst. Bhanwarkanwar in her cross-examination stated that when the accused-persons were beating Nandsingh, at that time some villagers namely: Saniya, Shreelal Rebari, Paliya, Makrama and Kaniya Balai were observing the occurrence. But there were no Rajputs and who were others, she cannot say. Ramsingh (PW 5) also stated that at the time of occurrence, there were some villagers, whose names he does not know. The question is what is the effect of non-production of other witnesses, who has witnessed the occurrence. To our mind, it would have been better that some independent witnesses should have been examined, so, that with regard to the identity of the kanjars, independent corroboration could be available to lead further assurance to the crediblity of the evidence relating to the identity of the assailants other than Mohansingh. As already stated that Mst. Bhanwarkanwar (PW 6) as named Mohansingh, Najariya, Baliya, Bhagwaniya, Saniya, Manohariya, Heeriya and Kaniya and has assigned specific roles to them. She has stated that the accused Najariya uttered that Thakurani does not tell a lie and that Najariya was one of the four accused-persons, wno caught held of Nandsingh when he came out of the kitchen. For Bagliya, she stated that it was he, who after peeping into the window having iron bars informed that Nandsingh is sitting beneath the cot inside the kitchen, For Bhagwaniya, Saniya and Manohariya, she stated that they alongwith Najariya caught hold of Nand Singh, when he came out of the kitchen. For the accused Saniya, she categorically stated about his weapon and further stated that he inflicted the blows with his weapon on the neck of Nandsingh and also on the nose of Nandsingh, when her husband fell spine on the ground. She further attributed the role of carrying the body of Nandsingh and throwing the same into the well to Heeriya, Kaniya, Saniya and Mohansing. In her police version Ex D/2, she did not name the accused Heeriya to be the accused, who carried the dead-body along with the three others. She named Najariya in her police statement Ex D/2, the benefit whereof was given to Heeriya and he was acquitted of the offence by the learned Sessions Judge, despite the specific roles having been attributed by Mst. Bhawankanwar (PW 6) in the absence of independent testimony whether implicit reliance can be placed on her statement, still requires consideration. It appears that the Public Prosecutor closed the evidence without examining the independent witnesses named by Mst. Bhanwarkanwar (PW 6). The witnesses were cited in the calender but were not examined. But we are clear in mind that on account of non-examination of the independent witnesses, the whole of the testimony of Mst. Bhanwarkanwar (PW 6) can not be discarded. Whatever checks are available on record and whatever surer foundation, we can have, we can proceed on that basis. With reference to the statement of Ramsingh (PW 5), it has been argued that Mst. Bhanwarkanwar did not disclose the name of Kanjars, even when she was so asked by Ramsingh. PW 5 Ramsingh stated that when the villagers were brought by him, the villagers did not ask Mst. Bhanwarkanwar, the names of the assailants and when the villagers left and be had a talk with Mst. Bhanwarkanwar (PW 6) Then, Mst. Bhanwarkanwar told that Mohansingh and Kanjars were the assaitants and Mst Bhanwarkanwar did not disclose the names of the Kanjars to him at that time. Mst. Bhanwarkanwar on the other hand stated that she does not know who came at her house first, as she had gone to info m Gordhansingh (PW 8) in the jungle. Thus, Mst. Bhawarkanwar does not admit as stated by Ramsingh (PW 5) that the villagers came in her presence. So far as Ramsingh is concerned, it may be that she may not have disclosed the names of the Kanjars to him as he was a stranger to the place and it may be that Mst. Bhanwarkanwar wanted to give out the name to Gordhansingh, who knew the kanjars and it was he who was to be sent to lodge the report.
13. Before considering the question regarding the identity of the kanjars assailants, we may first go into the question of acceptance of the report Ex. P/8 as the first information report. If is it can be accepted, it may be considered in the form of a available check. Ramsingh (P W 5) has stated that he brought Nanda Daroga, Babu Numberdar, Vijaysingh, Jagannath Balai and Mathuradas Baba. According to him, Gordhansingh (PW 8) came at the house at about 9 a.m. Till then, he did not come to know the names of the kanjars before Gordhansingh reached the house, Jagannath Balai had written a report to be sent to the police. Then, Jagaonath Balai was sent for Mandalgarh. A question was also put to Ramsingh as to whether the names of the Kanjars were disclosed by Mst. Bhanwirkanwar to Jagannath Balai. Then, he first stated that Mst. Bnanwarkanwar did not disclose the names, then he stated that he does not remember as to whether the names were disclosed or not, as his mind was not properly working. He further stated that Jagannath Balai did not return from the Thana but the police came at about 4 p.m. and the constable told that the report is written incorrectiy. Then he stated that he along with Gordhansingh went to the police station. He also stated that he does not remember that Gordhansingh gave a report or not as his mind was not working. Mst. Bhanwarkanwar denied to have sent Jagannath Balai with the report. As already considered above, according to Mst. Bhanwarkanwar she had gone to the jungle to inform Gordhansingh, so she does not know, who had come at the house, but Jagannath Balai was not seat by her. Although she admitted that at about 12.00 Vijaysingh and Umraosingh had come before the arrival of the police. Umraosingh told them not to take out the dead body from the well before the arrival of the police. At that time, she disclosed the names of the assailants to Vijaysingh. She further stated that Vijaysingh had come earlier but had gone back as she was not available and she learnt that they had sent a Balai boy to Mandalgarh police station. Thereafter, Bhanwarsingh, constable came at 4 p.m. and he had informed that the Station House Officer has not accepted the report. Thereupon, Gordhansingh (PW 8) was sent to the police station and Ramsingh (PW 5) also went along with him. (P.W.8) Gordhansingh has also stated that when he returned from the forest, he found no villagers sitting in the house.Vijay Singh and Jagannath were not present and he does not know whether Jagannath Balai had gone to the police station or not. He further stated that two constables had come to the village and he does not know, in what connection they had come. But they had told that he should go at the police station as the Thana people have not accepted the report of Jagannath. On their saying so, he along with Ramsingh (PW 5) went to Mandalgarh. PW 4 Gyansingh denied that Jagannath Balai came to the police station with a report at 12.00 noon on 26-12-75. He also stated that he did not send any police constable to the spot before he went to the place of occurrence, on the basis of the report of Gordhansingh (PW 8) and the two constable did rot meet him when he reached the place of occurrence.
14. From the above evidence, it appears that one Jagannath Balai was sent with a written report to the police station but that report was not accepted, and the two constables had visited the village and on their informing that the report has not been accepted, Gordhansingh went to lodge the report. In face of the statement of Ramsingh (PW 5) Mst. Bhanwarknwar (PW 6) and Gordhansingh (PW 8) the statement of Gyansingh (PW 4) can not be believed. Nevertheless, the fact remains that the report sent with Jagannath Balai was not entertained. Had the report been entertained it would have been recorded. It appears that the report must be a vague one. Ramsingh (PW 5) was not an eye witness of the main occurrence. The identity of the assaliants was not known to Ramsingh. Considering the report sent with Jagannath Balai to be incomplete and a vague one, it might not have been accepted It is also true that Jagannath Balai has not been produced by the prosecution. What was the report or what were its contents have not been put to Ramsingh (PW 5). It is also true that in the absence of the report, it can not be said what was the version set out therein. Accepting that, some report was sent with Jagannath Balai, but the same was not entertained and the two constables had come to the village and one of them, asked Gordhansingh (PW 8) to go and lodge the report, it cannot be found that the report, which Gordhansingh lodged is rendered inadmissible. When no report is recorded at the police station prior to 5.15 p.m. then the report lodged by Gordhansingh (PW 8) is the only report on which, investigation was initiated. Even if, the FIR Ex.p/8 may be considered to be report; which had been recorded after initiation of the investigation still Ex P 8 can be taken to be the first version of Gordhansingh (P W 8) and credibility as to the identity of the assailants by Mst. Bhanwarkanwar (PW 6) can be examined in light of the first version of Gordhansingh (PW 8).
15. It may be stated that the source of information of Gordhansingh is Mst. Bhanwar Kanwar, Mst. Bhanwar Kanwar (P W 6) has stated that when she visited the forest, she had disclosed the occurrence to Gordhansingh (PW8). She further stated in her cross examination that Gordhansingh (PW 8) went to lodge the report at the police station, but he did not talk with her. He had already asked all things earlier. It is pertinent to note that Gordhansingh disclosed only six names in the first infromation report namely Mohansingh, Kaniya, Rodiya, Saniya, Bhagawaniya and Heeriya. He did not disclose the names of Najariya, Manohariya and Bagliya although the specific acts have been attributed by Mst Bhanwarkanwar to the accused Nazariya, Manoheriya and Bagliya. Gordhansingh (PW 8) has stated that he had disclosed the names of the assalants, whatever were disclosed by Mst Bhanwar Kanwar to the Head Constable He also stated that he did give out the name of Bagliya, but the police might have not written, It appears from that statement, that he wants to explain that he was grief stricken and not in senses, he did not disclose the other names, but he does not remember. Mst. Bhanwarkanwar (PW 6) has stated that Gordhansingh (PW 8) may have named only six persons to be the assailants as he might not have been in his full senses at the time of making the report. It may be mentioned hat it is not the case of Ghordhansingh that he did not know the accused-persons by name. If he was not in his full senses or he was grief stricken, at least, he could have stated that there were some 2, more kanjars but he did not even state so. Mst. Bhanwar Kanwar has not named Rodiya. The presence of Rodiya is thus negatived. As there was a contradiction with regard to the accused Heeriya, so his presence in the company of the accused is doubted. So, both these accused persons were given the benefit of doubt. If he statement of Mst. Bhanwar kanwar (P.W 6) is tested in the light of the first information report, Ex P/4 we feel assured of the presence of Mohan Singh Kaniya. Saniya and Bnagwaniya. The names of Najariya. Manohariya and Bagliya are missing from the first information report. The question arises, would it be safe to act upon the sole testimony of Mst. Bhanwarkanwar in relation to these three accused-persons. From the prosecution evidence, of course, it can not be doubted that the number of assailants was more than five. Mst Bhanwarkanwar (P.W 6) has said that there were 8-10 Kanjars. But the question arose with regard to their identity. So far as the identity of Mohansingh and Saniya is concerned, their indentity is fully established by the testimony of Mst. Bhanwarkanwar and Mst. Sajjankanwar. But as regards the identity of Najariya. Manohariya and Bagliya, in our opinion, it would be unsafe to rely on the sole testimony of Mst. Bhanwarkanwar. The accused-appellant Bagliya has also been identified by Mst. Sajjan Kanwar (P.W. 7). But her identification evidence relating to the accused Bagliya does not appear to be worthy of the any credence. When she had not identified the Kanjars other than Saniya and has not given any reasons as to how she identified the accused Bagliya and she also stated that police had brought the kanjars in the village, which were sitting at a distance of 20-25 paces from her house, it would not be safe to rely on the testimony of Mst. Sajjankanwar (P.W. 7) with regard to the accused Bagliya. Mst. Sajjankanwar did not even identify the accused Manohariya at the test parade. Identification by Ramsingh (P.W 5) is highly doubtful. He does not identify the kanjars individually at the trial. Besides that he had seen them before the test parade.
16. In this state of identification evidence, the omission of the names of Najariya, Manohariya and Bagliya in the first version Ex.p/8 given by Gordhansingh (PW 8), in our opinion, assumes great significance and so, it would not be safe to place implicit reliance on the testimony of Mst. Bhanwar Kanwar in relation to these three accused persons. Thus, these three accused-persons are entitled to benefit of doubt, in the light of Ex.p/8. However, it can be definitely found that the assailants of the deceased Nandsingh, were Mohansingh, Saniya, Kaniya, Bhagwaniya and some others, whose identity is not established beyond doubt.
17. So far as the accused Mohansingh and Saniya are concerned, there is a further circumstantial evidence regarding the recovery of bloodstained weapons and blood-stained clothes of the accused Mohansingh The Kulhari of the accused Mohansingh has been recovered on the information of Mohansingh Ex.p/21 vide recovery memo Ex.p/22. The clothes of the accused Mohansingh namely: dhoti and shirt, were recovered on the information of Mohansingh Ex p/25 vide recovery memo Bx.p/2. The Gandasi or a farsa of the accused Saniya was recovered on his information Ex. 24 vide recovery memo Ex. P/3. The prosecution has examined one Shankerdass (PW 2) motbir of the recovery of farsa by the accused Saniya and he is also the motbir of the recovery of the clothes of the accused Mohansingh. He stated that the clothes and Saniya's farsa were no stained with blood and the recovery memos of the weapons also do not state that the weapons were stained with blood, but the recovery memo of the clothes does make such reference. The packets of these articles were packed and sealed as stated in the memos and further stated by PW 2 Shankerdas and PW 9 Chhaganlal, Investigating Officer. Both the weapons and the clothes have been found positive for blood as per the report of Forensic Science Laboratory Ex.p/26. It is true that there is no evidence led by the prosecution that the packets reached the Laboratory untampered but no cross-examination is directed in this regard. It is also true that the quantity of blood found was too small for Serological examination. But in our opinion, the recovery of blood-stained weapons by the two accused-persons and the recovery of bloodstained clothes by the accused Mohansingh can be considered as corroborative pieces of evidence against them.
18. Besides that, so far as the accused Mohansingh is concerned, there is further evidence of enmity. Mst. Bhanwarkanwar (PW 6) has stated that her cow and calf had trespassed into the field of Mohansingh and has damaged the crop. So the accused Mohansingh was having grudge against them. Further, Gordhansingh (PW 8) has also stated that they has launched the proceedings Under Section 107, Cr. PC against Mohansingh and 4-5 Kanjars 15 days prior to the occurrence. Thus, the relations with Mohansingh were not good rather were strained, which establishes that there was motive with the accused Mohansingh.
19. We may consider one more aspect of the case. The learned Sessions Judge, on the basis of the statement of P.W. 1 Dr. Dwijendra Mohandas has found that the six blunt weapon injuries were not ante mortem but were post-mortem in nature and in all probability, they may be on account of dragging. We have looked into the injuries, out of the six injuries, only one injury appears to be on the back. Looking to the blunt weapon injuries, it can be said that they might have been caused due to dra ging. The opinion expressed by Dr. Dwijendra Mohandas (PW 1) in respect of the blunt weapon injuries has not been get explained. There is no reason to hold these injuries as post mortem, when PW 1 Dr. Dwijendra Mohandas has categorically stated that they were ante mortem. Simply because, be stated that he did not find cogulated or liquid blood. When he examined the simple Injuries caused by blunt weapon, it can not be taken that they were post mortem. The dead body of Nandsingh remained in the well for more than 24 hrs When he specinally stated that the injuries were ante mortem and when no. explanation has been sought as to why they are ante mortem in nature, the injuries can not be taken to be post mortem in nature. Thus, assault by lathis by the Kanjars is also established. It may be stated that Kanjars with Mohan Singh in any case, were more than 4 in number. They all came in a group armed with deadly weapons with a common object to kill Nandsingh or in any case, with a common object to assault Nandsingh and they knew that in prosecution of that common object of assault, Nandsingh is likely to be killed, then, every member of such an unlawful assembly is guilty of the offence of murder under the later part of Section 149, IPC. Looking to the part played by the accused Mohansingh and Saniya, they have been rightly convicted for the offences Under Sections 48, and 30 , IPC The accused Kaniya and Bhagwaniya have also been rightly convicted for the offences Under Sections 147 and 302/149, IPC. However, the accused Najariya, Manohariya and Bagliya are entitled to benefit of doublt as considered above.
20. In the result, the appeal of Mohansingh is dismissed. In appeal No; 71 of 1977 the convictions and sentences awarded to the appellants Saniya, Kaniya and Bhagwania are maintained. Their appeal is dismissed. However, the appeal by the accused-appellants Najariya Manohariya and Bagliya is allowed. The convictions add sentences of these three accused-appellants namely Najariya, Manohariya and Bagliya are set aside. Manohariya is on bail, so he need not surrender to his bail-bonds, which are hereby discharged. The accused-appellants Najariya and Bagliya are in custody, they shall be released forthwith, if they are not required in any other case.
21. The accused-appellant Bhagwaniya is on bail, he shall surrender to his bail-bonds, within 15 days from today failing which forfeiture proceedings in respect of his bail-bonds shall be initiated and the learned Sessions Judge shall effect his arrest to serve out the remaining sentence as awarded by the learned Sessions Judge.