1. The three accused-appellant Gopal, Omprakash and Nandu are the sons of Hazari and are as such brothers. Babu alias Rambabu is the son of Nandu accused-appellant. The learned Additional Sessions Judge, Gangapur City under his judgment dated 20-10-1981 convicted the above named four accused-appellants for the various offences. Accused-appellant Gopal has been convicted under Section 302, IPC, whereas the other three accused have been convicted under Section 302/34, IPC, and each of them has been sentenced to undergo imprisonment for life and a fine of Rs. 20,000/-, or in default of payment thereof to 4 months RI. The accused-appellant Rambabu, Nandu and Omprakash have been convicted under Section 323/34, IPC and sentenced to pay a fine of Rs. 500/- each and in default of payment thereof to 2 months RI.
2. In village Badi Udai, PS Gangapur City, District Sawai Madhopur, Girraj PW 1 son of deceased Ganga Sahai runs a petty shop. In the same village nearly the shop of Girraj PW 1, Gopal accused-appellant runs his own shop and is also a petty shop-keeper. Both deal in the same items. There is said to be a trade rivalry between them. It is the case of the prosecution that on 8-11-1980 at about 11 A.M, PW 1 Girraj was inside his shop and the accused persons Gopal, and Babu alias Rambabu came unarmed and gave beating to him with first and also kicked him. Mahesh (PW 5) came to his rescue. The accused-appellants Gopal and Babu returned to their house but in the evening at 5 p.m. on that day when Gangasahai along with his two sons Girraj (PW 1), Kamlesh (PW 2) and Chiranji (PW 6) and Gopal (PW 9) was sitting outside the platform of his house and was enjoying Hukka, all the accused persons along with their father came there. They came abusing. Accused Gopal was armed with axe and others with lathis, and when Ganga-sahai was still sitting on the platform, they caused injuries to him. Accused Gopal is said to have given blows with axe on the head of Gangasahai (deceased) whereas others gave lathi blows. The occurrence is said to have been witnessed by the above named persons. A written report (Ex. P 4) was lodged by Kamlesh (PW 2) in P.S. Kotwali, Gangapur at 12.15 A.M. on 9-11-1980, and a case was registered and the investigation was set in motion.
3. Ramgopal (PW 14) was the SHO of Police Station and he took over the investigation of the case.
4. Gangasahai was examined for his injuries by Dr. Radhey Shyam Parashar (PW 7) and he found that Gangasahai had as many as 7 injuries, the first incised Wound l' x 1/8' x 1/4' on the right side of parietal region central portion, and the bleeding was present; second lacerated wound; the third lacerated wound on the right side of fronto-parietal region; the fourth a bruise with blue upper and lower eye lid 2' x 2' on the right upper and lower eye lids with conjunctival haemorrhage; the fifth also a bruise bleeding present on the nose more on the right side nostril, and the sixth and seventh were also bruises on the left fore-arm wrist joint and below. All the injuries except 2, 3, 4 and 6 were simple in nature. Injury No. l was caused by sharp weapon and X-ray was advised for injuries 2, 4 and 6 and the opinion was reserved. The said Gangasahai died in the hospital and Dr. Nandlal Sharma (PW 8) conducted autopsy on his dead body on 10-11-1980 and he found he same number of injuries except that injury No. 1 was found to be a stitched wound. In his opinion, all the injuries were ante mortem in nature. On opening the body, he found that there was fracture of right parietal bone mind above from right eye brow extending upto suture. There was fracture of right orbit laterally with fracture of zygmatic bone and maxillay bone of face. There was also fracture of left ulna at the junction of upper 2/3rd and lower 1/3rd. There was also a fracture of anterior cranial fossa. In his opinion, the fracture of right parietal bone was the result of corresponding external injuries 2, 3 and 4 fracture of right zygmatic bone and maxillary bone was the result of corresponding external injuries 5 and 6, as noted above The fracture of left ulna was the result of corresponding external injuries 7 and 8 and fracture of anterior cranial fossa was due to corresponding external iniury No. 6. All the injuries 1, 2 and 4 individually and collectively were sufficient to cause death.
5. Besides Gangasahai, the other two persons Kamlesh (PW 2) and Girraj (PW 1) also received injuries and Kamlesh on examination by Dr Radhey Shyam (PW 7) was found to be having a bruise 2' x 1-1/2' on the left fore-arm which was simple and caused by blunt object. Girraj was found having as many as the three injuries, first being a bruise with abrasion on the left side of occipital region; the second a contusion on right side of from to parietal region and the third a bruise redish on the left scapular region All the injuries were simple and caused by blunt object.
6. After usual investigation, a charge sheet was filed. All the four accused appellants did not plead guilty and claimed trial. The prosecution examined in all 14 witnesses. The accused persons were examined under Section 313, Cr. P.C. During the cross-examination of the witnesses, the case of the defence was that the occurrence did not take place as alleged by the prosecution witnesses, and the occurrence took place in the thorough fare out-side the shop of Girraj (PW 1). In that incident, as per the case of the defence, the complainant party were the aggressors, & the accused Nandu, Om Prakash and Rambabu alias Babu also received injuries. The accused persons produced the injury reports Ex. D. 3 to Ex. D. 5 of Nandu Omprakash and Rambabu respectively, which have been proved vide the statement of Dr. Radhey Shyam (PW 7). After trial, the learned Additional Sessions Judge convicted and sentenced the accused-appellants, as aforesaid.
7. The contention of the learned Advocate for the appellants is that the prosecution has not come out with the true genesis of the incident and has not explained the injuries of the accused which were no vital parts. Therefore, the case of the prosecution is rendered doubtful. It is also contended by him, that it cannot be believed that the occurrence took place on the platform and mere presence of blood on the platform will not lead to that inference, because admittedly after the incident deceased Gangasahai had fallen on the thorough fare and was lifted upto the platform. It is further contended by him that the witnesses are mostly related and therefore, cannot be relied upon, more so when they have failed to explain the injuries of the accused.
8. The case of the prosecution depends on the evidence of eyewitnesses Girraj (PW 1), Kamlesh (PW 2). Smt. Teejo (PW 3) and Gopal (PW 9). Out of the above witnesses, Girraj and Kamlesh are the sons of deceased Gangasahai. Mst. Tejo is the wife to the deceased. All of them have stated that accused Gopal was armed with an axe and he gave blow with the axe on the head of Gangasahai. Girraj (PW 1) states that even Hazari was amongst the accused persons and no sooner the accused persons had arrived, Gopal gave a blow by an axe on the head of Gangasahai & the other gave lathi blows. He further states that he and his brother Kamlesh were beaten by all the four accused. He further states that after the blows were given to Gangasahai, he just rolled and fell on the ground. A similar statement has been made by other witnesses Kamlesh (PW 2) and Mst. Tejo (PW 3). When they were asked as to whether deceased Gangasahai or the other persons Girraj and Kamlesh were armed or not, Mst. Tejo denied that any of them was armed. It is also stated that she did not see any injury on the accused persons Omprakash, Babu and Nandkishore. Girraj (PW 1) states that Gopal gave a blow on the head of his father with axe when Gopal was standing on the thorough fare and he states that Kamlesh did not come on the platform. Girraj (PW 1) on this point has stated that Gopal came on the platform and then gave axe blow to his father. The other persons gave blows to his father while standing on the thorough fare, Kamlesh (PW 2) states that his father received these injuries by axe, a statement which is not corroborated by the medical evidence, as the doctor found only one injury by sharp weapon. Mst. Tejo (PW 3) wife of deceased Gangashai states she was inside the house and only came on hearing the alarm and saw that a blow by axe was given by Gopal accused to her husband and the other accused gave lathi blows. She states that Gopal gave axe blow while he was standing in the thorough fare. All of them stated that it had become dark and it was time to perform Girraj Puja. Gopal son of Arjun (PW 4) is Meena by caste and did not support the case of the prosecution and was declared hostile. He states that Gangasahai was lying in the thorough fare and was lifted to the platform. Chiranjilal (PW 6) has stated that vision is not good and he can not see in the dark. In the court he was made to identify the accused from a distance of 6 ft., but he failed to identify. Therefore, it can be said that Chiranjilal (PW 6) was not in a position to witness the occurrence at that hour from a distance of 20 steps, as alleged by him. That apart he states that all the accused persons were armed with lathis and does not state that accused Gopal was armed with axe. We will, therefore, exclude his evidence from consideration. Gopal son of Ishwarlal (PW9) states that he saw that Gopal Meena was at the platform and was holding Gangasahai and blood was oozing out of his injury. He does not state that the occurrence took place in his presence and states that he saw the accused running away. Thus, it can be said that only the evidence of the witnesses of the house remains.
9. On the same day an occurrence had taken place in the shop of Girraj (PW 1), and as stated by Girraj (PW 1) and supported by Mahesh Chand (PW 5) that in the occurrence accused Gopal and Babu have given beating with fists and also kicked Girraj. Therefore, the aggrieved party, if any, were Girraj (PW 1) and persons belonging to his family. It has come in the evidence of eye witnesses that the accused persons came abusing, did not utter a word and started giving beating. The witnesses have denied that they saw any injury on the accused which injuries as stated earlier have been proved by Dr. Radhey Shyam (PW 7). That apart, we have already discussed the evidence and there are contradictions on the question as to whether Gopal accused who is said to be armed with axe gave a blow while standing in the thorough fare, or had gone to the platform where he gave a blow. Thus, the prosecution has not come out with true genesis of the evidence. The prosecution has failed to explain the injuries of three accused persons, which are numerous, and are not superficial, and were received in the same occurrence. Therefore, the case of the prosecution is rendered doubtful. In other words, it will not be safe to rely on the prosecution story and to convict the accused-appellants.
10. In the result, we allow the appeal, set aside the judgment of the learned Additional Sessions Judge, Gangapur City dated 20-10-1981. All the appellants are acquitted of all the charges levelled against them. The accused-appellants except Gopal are on bail. They need not surrender to their bail bonds which shall stand discharged.
11. Accused-appellant Gopal is in Jail. He shall be released forthwith, if not wanted in any other case.
12. Before parting with this case, we will like to observe that Gopal accused, according to the prosecution case, gave a blow by axe and the doctor found that this injury was simple. The learned Additional Sessions Judge, therefore, could not have convicted accused Gopal under Section 302, IPC simpliciter, because accused Gopal is not author of that injury.