S.N. Modi, J.
1. This is an appeal by the State against the order of acquittal parsed by the Sessions Judge, Bikaner in a case under Sections 302, 307, 302/140, 148 and 323/149 I.P.C. instituted against the six accused respondents.
2. The incident relating to this case took place at about mid night en April 19, 1969, at Gopala Ram's dhani (house) situated mid-way between the village Jaisinghbdisa and village Pithasar, within the jurisdiction of the Police Station, Nokha. Gopala Ram's dhani consists of two verandahs, called as Bhanal and an open court-yard enclosed by walls. In front of of the court-yard there is a bada known as 'Bhanal' surrounded by thorn fencing. This dhani was being used as a famine relief camp which, started functioning fron April 10, 1969. It is alleged that accused respondent Ramrakh did not like the idea of opening the famine relief camp at Gopala Ram's dhani, He was eager to have this camp located in his village Jaisinghdisa.
3. The prosecution case, as narrated in the First Information Report as well as, by the eye-witnesses, may now briefly be stated. On the night between 18th and 19th April, 1969 at Gopala Ram's dhani deceased Gopala Ram and his brother PW 1 Mula Ram were sleeping tide by side in the courtyard of their dhani. PW 1 Mula Ram's son Jaisukba PW 2 was also sleeping on the roof of one of the two 'sals' of the dhani. PW 6 Gopal Das, a work-charge in the famine relief camp, was sleeping inside the 'sals'. At about mid night six accused respondents, namely. Ramrakh, Birbal and Goidhan sons of Bharta Ram. Ganpst and Jagmal sons of Nanu Ram and Bagdawat son of Harbhaj along with Hazari son of Bharta Ram entered the court-yard of the dhani and went near the place where PW 1 Mula Ram and the deceased Gopala Ram were sleeping. Ganpat and Birbal were armed With 'selas', Gordhan was armed with 'barcha'. Hezari was armed with a pistol and the rest namely Ramrakh, Jagmal and Bagdawat were armed with lathis. Ram Rakh is said to have asked Gopala Ram where Jethu Ram round be found. Gopala Ram replied that Jethu Ram had gone to the village. Ram Rakh then dealt a lathi blow to Gopala Ram while he was sleeping, Gopala Ram got up, packed up a lathi lying beneath his cot and hit Ram Rakh with it, with the result that Ram Rekh fell down on the ground. Ram Rakh, exhorted his companions to do away with Gopala Ram and PW 1 Mula Ram. Thereupon Bagdawat dealt a lathi blow on the fact of Gopala Ram and Ganpat pierced 'sela' into the neek of Gopala Ram. PW 1 Mula Ram intervened to save Gopala Ram. Birbal struck a blow with 'sela' on Mula Ram's right axilla. Gordhan struck with the 'barcha' edge en Mula Ram's head Ganpat dealt a blow with the 'sela' on Mula Ram's left groin. Jagmal dealt five lathi blows on Mula Ram's left leg All the accused thereafter kicked Gopala Ram and fled away leaving behind Gopala Ram dead, and PW 1 Mula Ram seriously injured The cries raised by the injured persons attracted Lalu Ram. PW. 6, Horpalaram and Bhajna Ram PW. 3. Bhajna Mula Ram narrated to them the names of the assailants, and the manner in which he and Gopala Ram were assaulted PW. 3 Bhajna Ram then went to the police station Nokha and If deed the first information report in the morning at 7 a.m. Dr. Mohan Lal PW. 8 conducted post mortem examination on the dead body of Gopala Ram at 5 p.m. on 19/4/69, and noticed the following external injuries:
1. Incised wound 1' x 1/4 x muscle deep (1') in the front of neck middle part extending to right side.
2. Lacerated wound ' x ' muscle deep on the lower jaw right side.
3. Incised wound 3/4 ' x 1/4' in bone deep on left leg anteriorly middle part.
4. Bruise 1' x 1' on back right side on scapular region
5. Bruise 4' x ' on back right half scapular region.
6. Bruise 1' x ' on right arm lateral part.
7. Bruise ' x 1/4 on right fore arm lateral part.
4. On opening the dead body the Doctor found the following internal injuries:
1. Rupture of external carotid vessel on right side.
2. Right and left lungs congested posteriorly.
3. Spleen and kidneys were congested.
5. In the opinion of the Doctor the cause of death was shock and haen orrhage due to rupture of right external carotid artery. The Doctor further opined that death of Gopala Ram took place between 5 p.m. on 18/4/1969 and 5 a.m. of 19/4/1969.
6. The same Doctor examined PW 1 Mula Ram on 19/4/W69 at 4 p.m. and found the following injuries on his person:
1, Incised wound 1 ' x 'x 1' on the right axilla. Air was coming out of the wound.
2 Abrasion 1/3' x 1/3' on left arm, lower part, with 1/3' swelling around.
3. Abrasion 1/3' x 1/3' on left arm middle part.
4. Abrasion 1/6' x 1/6' on the dorsal surface on left thumb.
5. Incised wound 1 1/3' x 1/3' in bone deep on left parietal region. Bone exposed.
6. Lacerated wound ' x 1/3' x 1/3' on left groin.
7. Contusion 1' x 1' on left leg anteriorally mid part.
8. Swelling' x 1' on left foot dorsal part.
7. Injuries No. 1 and 6 were grievous and the rest were simple. The duration of the injuries was between 8 to 12 hours.
8. During the course of hearing of the appeal, the learned Public Prosecutor produced the injury report of accused Ramrakh. The learned Counsel for the accused admitted its correctness. It was, therefore, admitted in evidence. This injury report showed that accused Ramrakh was examined by the Doctor on 19/4/69 at 5 a.m. The Doctor found eight injuries on various parts of his body : three of them were lacerated, wounds on the head; two, were contusions and three were abrasions. According to the Doctor, the duration of the said injuries was about seven hours.
9. Accused Ram Rakh was arrested by the Investigating Officer on 21-4-1969. At the time of his arrest he was indoor patient in the hospital at Bikaner. Accused Gordhan and Birbal were arrested on 26-4-69. Ganpat and Jagmal were arrested on 25-4-69 and 26-4-69 respectively, Bagdawat was arrested during the course of committal proceedings The above accused persons are said to have given information to the SHO leading to the discovery of various weapons, which of re recovered at their instance, None of the weapons was, however found stained with blood. The learned Sessions Judge rightly did not, take into consideration these recoveries, as, there was no evidence to connect the weapons with the injuries sustained by Gopala Ram and Mula Ram.
10. After usual investigation the police put up a challan against the respondents and Hazari in the Court of the Addl. Munsiff Magistrate, Bikaner, The latter by his order dated on 5-1-70 discharged Hazari and committed the six respondents to the Court of the learned Sessions Judge Bikaner for trial.
11. The plea of the accused was that of total denial. All of them denied having participated in the incident. Accuesed Ramrakh in his statement, under Section 342 Cr.P.C. (Old) disclosed that the was belaboured on the evening of 18-4-69 by PW1 Mula Ram, PW. 2 Jaisukh Ram and 6 other persons. No witness was examined in support of the above version. It may be stated at the outset that the injury report of Ramrakh produced before us completely falsifies the story told by Ram Rakh, namely that be was belaboured on the evening of 18-4-69. The injury report shows that he was examined by the Doctor on 19-4-69 at 6 a.m., and at that time he himself disclosed the duration of the injuries to be about 7 hour. This estimate of duration of injury given by Ram Rakh was found to be probabele by the Doctor. That shows that Ram Rakh received injuries near about 10 P.M. on 18-4-69 According to the prosecution, the incident took place near about mid-night on 18-4-69. Taking into consideration the above facts and that at least one lathi blow even according to the prosecution was inflicted to Ram Rakh at the time of the incident If can safely be inferred that Ram Rakh must have received all the injuries at the same incident at which Gopala Ram and Mula Ram received the injuries. We, therefore, find no truth in the defence story given of Ram Rakh that he was belaboured in the evening of 18-4-69. On the contrary, we are inclined to hold that he received injuries in the same incident at which Gopala Ram and Mula Ram sustained injuries.
12. The prosecution case rested on the evidence of PW. 1 Mula Ram, PW2 Jaisukh Ratn and PW. 6 Gopal Das. According to the prosecution, they were sleeping at the 'dhani' on the night of the incident. The learned Sessions Judge after careful scrunity of the evidence of these witnesses has come to the conclusion that the evidence of PW. 6 Gopal Das is of no assistance to the prosecution, as he admitted having neither seen the assailants nor the injured person. He admitted that he was frightened on account of the fight which took place at about mid-night. He remained in the 'Sal' and when silence prevailed, be ran away to village Pithasar.
13. Coming to the other two witnesses we find that PW. 1 Mula Ram is the father of PW. 2 Jaisukh Ram Deceased Gopala Ram was the brother of of PW. 1 Mula Ram. Both these witnesses, namely PW. 1 Mula Ram and PW. 2 Jaisukh Ram are thus closely related to the deceased Gopala Ram. PW. 1 Mula Ram further admitted his deep rooted enmity with the accused for last 10 year. On critical examination of the evidence of PW. 1 and PW. 2, the learned Sessions Judge summarised their evidence in the following words:
The main prosecution witness Mularam and his son Jaisukha have told lies from beginning to end and given distorted version. Deep rooted enmity is also admitted by them with Ganpat, Birbal, Ramrakh. In this state of deeply interested evidence adduced from the prosecution side with great regard I have to record that it is not found as to how the whole episode, which engulfed Gopala Ram's life took place and how the fatal blow was caused to this deceased and under what circumstances and by whom Mula ram was wounded..
The main prosecution witnesses Moolaram, Jaisukha and Lalu Ram in the instant case could not stand the test of cross-examination as already demonstrated above.
14. We have gone through the statements of PW. 1 and PW. 2 with due care and caution We have no hesitation to say that the testimony of these wit casses is not of that type which can safely be acted upon without independent corroboration connecting each accused with the crime Unfortunately, in this case, no corroboration is available. In absence of such corroboration, we cannot hold that the learned Sessions Judge acted erroneously of unreasonably in acquitting the accused.
15. The prosecution story shows that 7 persons armed with deadly weapons went to the dhani at about mid night. This act on the part of the assailant definitely suggests that they went determined to be labour Gopal Ram and PW. 1 Mula Ram. In this back-ground, it appears to us highly improboble that Gopal Ram could in presence of seven assailants armed with deadly weapons pick up a lathi lying underneath his cot and I it Ram Rakh with it. Again, according to the prosecution, Gopala Ram got up when the lathi blow was inflated on him by Ram Rakh It further appears that Mula Ram was attacked by the assailants only when he intervened to save Gopala Rare. These facts go to show that both the injured persons received injuries while they were standing But the medical evidence leads to a different conclusion. The location of the injuries sustained by Gopala Ram and Mula Ram suggests that both of them were probably beaten while they were sleeping. It is significant to cote that in the case of Gopala Ram all the injuries except, injury No. 8, were found on the right side of his body. Similary, in the case of PW1. Mula Ram all the injuries, except injury No. 1, were found on the left side of his body. These injuries, in our opinion, clearly suggest that both the victims were attacked while sleeping; Gopala Ram while sleeping on his left side, and Mula Ram while sleeping on his right side. Another serious infirmity which is apparent on the record is that the prosecution has given no explanation as to bow Ram Rakh sustained as many as 8 injuries on his person. As pointed out above, Ram Rakh sustained injuries at the same incident when Gopala Ram and Mula Ram were injured. The very fact that PW. 1 and PW. 2 did cot mention anything in their evidence as to how so many injuries were found on the person of Ram Rakh makes it wholly unsafe to rely on their evidence. We further find that according to PW. 1 and PW 2, accused Jagmal struck 4-5 lathi blows on the left leg of Mula Ram, that Gopala Ram was kicked by all the accused and that Ganpat pierced 'Sela' into the neck of Gopala Ram. The medical evidence does not show infliction of such injuries on the persons of Gopala Ram and Mula Ram. Moreover, a perusal of the statements of PW 1 and PW 2 would go to show that both of them contradicted their previous statements, and then had the braveness to say that they did not make those earlier statements. Another important infirmity in the evidence of these two witnesses is that they roped in at least Hazari, an innocent person, and attributed to him two fires with a pistol. None of the injured persons received gun shot injuries.
16. The learned Public Prosecutor has strenuously argued before us that the first information report was lodged at the earliest opportunity and that there was thus no time for the complainant party to cocoon a false case against any of the accused persons. It has been further contended that but for certain improvements which according to the Public Prosecutor, are not on material points, the story told by the witness at the trial is consistent with the story narrated in the First Information Report. It has also been urged that so far as PW 1 Mula Ram is concerned, his presence cannot be doubted as he is one of the victims. According to the learned Public Prosecutor, the evidence of the eye-witnesses considered in the back ground of the First Information Report must be accepted by the Court without diverting its Mention to other circumstances.
17. In our opinion, it is neither a rule of law, nor of prudence that if the evidence of the eye witnesses is consistent with the story narrated in the First Information Repot, then the evidence of such witnesses has to be accepted on its face value without assessing the probabilities of their evidence it without considering the other factors, and features of the case as would be evident on the materials on the record. We have pointed out certain infirmities in the evidence of eye-witnesses, such, as close relationship of the witnesses with the deceased, deep rooted enmity with the accused, apparent lease and, improbable nature of the story etc. The Judge has to apply his mind, and properly assess and judge the evidence on record by the yard-stick of probabilities, its intrinsic worth and animus of the witnesses.
18. In the case before us, because of the improbable and unsatisfactory features in the prosecution evidence, which have been mentioned above and discussed in the impugned judgment, the evidence of the eye witnesses does not at all inspire confidence
19. A careful perusal of the evidence on record, its discussion in the impugned judgment and for the reasons stated above, we are satisfied that the respondents have been rightly acquitted in this case.
20. We do not find any merit in this appeal, and it is, therefore, dismissed.