1. The learned Addl. Sessions Judge (1), Baran under his judgment dated 31-8-1981 convicted accused Sheopal Under Section 302 and 148, IPC. Under the former count, the accused Sheopal has been sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to further undergo two months rigorous imprisonment. Under the latter count, he has been sentenced to two years rigorous imprisonment and a fine of Rs. 100/-, or in default of payment of fine to further rigorous imprisonment of two months. The other accused-appellants Shyam Sarup, Ram Sarup, Ram Gopal, Badri Lal and Birdhi Lal have been convicted Under Sections 147 and 302/149, IPC and each of them has been sentenced to one year's rigourous imprisonment and a fine of Rs. 50/-, or in default to one month's rigorous imprisonment Under Section 147, IPC and Under Section 302/149, IPC to undergo imprisonment for life and a fine of Rs. 100/-, or in default of payment of fine to further two months rigorous imprisonment. The substantive sentences of all the accused have been ordered to run concurrently.
2. In brief, the case of the prosecution is that on 20-9-1980 at about 11-30 or 12-00 in the noon deceased Mathura had gone to his well along with bullocks. It is alleged that all the accused-appellants went there armed with weapons and accused Sheopal was armed with a Kuntia and the other accused were armed with lathis. They started giving simultaneous blows with their respective weapons to deceased Mathura and witnessing this Nandlal (PW 3) rushed to the house of Kalulal (PW 5), father of Mathuralal where Ramratan (PW 4) was also present. The said Nandlal informed that Mathuralal was being beaten by the accused persons and Ramratan (PW 4) and Kalulal (PW 5) ran towards the place of occurrence, and from a distance they are said to have witnessed the occurence. It is alleged that accused Sheopal who was armed with a Kuntia, gave blows to Mathuralal, while the others gave lathi blows. Mathuralal was thus injured and was taken away in that condition, but he died later on.
3. Dr. B.D. Lahoti (PW 2) conducted autopsy on the dead body of Mathuralal on 21-9-80 and found the following injuries on his body:
(1) Incised Wound 1/2' x 1/2' x bony depth over occipital region scalp in the centre, transversly placed;
(2) Incised wound 1/2' x 1/2' x Bone Depth Longitudinal placed over left parietal region 1' away from centre;
(3) Incised wound 1' x 1/2' x 1/2' over occipital region 1' away from injury No. 1 towards left side with swelling 4' x 4' area over parieto occipital junction, transversely placed;
(4) Incised wound 1' x 1/2' x 1/2' over right leg 4' above the ankle joint, longitudinaly placed;
(5) Contusion 2' x 1' over right knee joint;
(6) Bruise 7' x 3/4' over back vertically below the angle of scapula.
4. In the opinion of Dr. Lahoti the injuries Nos. 1,2,3 and 4 were caused by sharp edged weapon and injuries Nos. 5 and 6 were caused by blunt weapon.
5. On opening the scalp, a facture of occipital bone extending towards temporal region 1/2' long linear cut was found, and collected blood was also found inside the injury. There was haematoma of 1-1/2' size oval along with leaking blood vessels. There was fracture of left parietal region 1' away from centre extending upto left frontal region, size 1-1/2' long below injury No. 2. There was congestion in the brain and membrance and there was haematoma at the base of skull.
6. On opening other parts of the body, every thing was abnormal.
7. In the opinion of the doctor, Mathuralal died as a result of head injury having haematoma compressing vital centre, i.e. haematoma compressed the vital centre. The doctor proved the post-mortem report (Ex. P 11).
8. The accused persons were arrested and some recoveries of lathis were made from them, but they have not been connected with the occurrence.
9. The accused persons were charged under the various offences, but they did not plead guilty and claimed trial.
10. The prosecution examined as many as 11 witnesses, and thereafter the accused persons were examined Under Section 313, Cr.PC. The accused persons stand on a bare plea of denial. According to them, they have been falsely implicated as a result of enmity. The accused persons did not examine any witness in defence. The learned Addl, Sessions Judge placing on the evidence of eye-witnesses Ramratan (PW 4) and Kalu (PW 5) convicted and sentenced the accused persons as aforesaid.
11. We have heard the learned Counsel for the appellants and the learned Public Prosecutor and have been taken through the evidence on record.
12. The contention of the learned Counsel for the accused-appellants is that neither (PW 4) Ramratan, nor (PW 5) Kalu, brother and father respectively of deceased Mathura, were in a position to witness the occurence. He has further contended that there are material contradictions in the statements of the witnesses and they cannot be relied upon, more so when their statements are in direct conflict with the medical evidence. More over, they are said to be with armed weapons and 5-6 accused with lathis, and two injuries only were found by blunt weapon and four by sharp weapon. He further contends that all the accused-persons gave beating to Mathura cannot be relied upon. Both the witnesses are near relations of the deceased and admittedly there was long standing enmity between the complainant party and the accused, and, therefore, the possibility cannot be excluded to falsely implicate the accused. The learned Public Prosecutor has supported the judgment of the learned Addl. Sessions Judge, and contends that merely because the witnesses are near relations, their evidence should not be discarded.
13. We have considered the rival contentions. We shall presently show that the two witnesses, Ramratan (PW 4) and Kalu (PW 5), who are brother and father of the deceased, as already stated earlier, could not have witnessed. The occurrence is said to have taken place near a well away from the village. It has been stated by Kalulal (PW 5) that he was at his house and Ramratan was also there. Nanda came there and said that Mathura was being beaten, therefore he went towards Babri. He further states that when he was at a distance of 150-200 steps he witnessed the occurrence. Thus, Nanda (PW 3), who has not supported the prosecution case, only started to the house of Kalulal (PW 5) after the beating had started. It must have taken a few minutes in reaching the house of Kalulal and sometime must have been taken by Kalulal in coming to the Bibri. It cannot be expected that the accused persons will go on beating till the arrival of the witnesses. A look at the post mortem report will show that in all there are six injuries,4 by sharp weapon and 2 by blunt weapon, and the number of the accused persons is six. The infliction of injuries will take a few minutes. It has come in the statement of Ramratan (PW 4) that he took 5 minutes in reaching the place of occurrence. Thus, in our opinion, neither Ramratan nor Kalu could have reached the place of occurrence to witness the actual beating. That apart, there are other contradictions in the evidence of the witnesses, which are material.
14. The F.I.R (Ex. P 13) was lodged by Ramratan in the police station, and he has mentioned therein that Sheopal was armed with a Kuntia. Kalu (PW 5) has stated that when he reached the spot and witnessed the occurrence from 150-200 steps, he saw that Sheopal was armed with a Dharia. He was confronted with his police statement (Ex. D. 2-E to F) wherein the fact was mentioned that Sheopal was armed with a Kuntia, but he stated that he did not depose so. Kuntia and Dharia are different weapons. Therefore, if Kalu would have witnessed the occurrence, he could not have stated in this manner. Contrary to it, Ramratan (PW 4) states that Sheopal was armed with a Kuntia. Kalu (PW 5) has named several accused persons including one Birdha, but in his court statement he has named six accused persons were giving beating to Mathura and Sheopal was armed with a Kuntia. As already stated earlier, as many as 4 injuries were caused by sharp weapon and 2 by blunt weapon. As a matter of fact, 5 or 6 are said to be armed with lathis and if they would have caused injuries with lathis to Mathura, there would have been more injuries on the person of Mathura by blunt weapon. At least there would have been 5-6 injuries by blunt weapon. After going through the evidence of Ramratan (PW 4) and Kalu (PW 5) we are unable to place reliance on their testimony.
15. If the evidence of these two witnesses is excluded, there remains nothing on record to convict the accused.
16. In the result we allow this appeal set aside the judgment of the learned Addl. Sessions Judge (1), Baran dated 31-8-1981 convicting, sentencing accused Sheopal Under Section 302 and 148, IPC and others Under Section 147 and 302/149, IPC. The accused-appellants are acquitted of all the charges. Sheopal is in Jail. He shall be released forthwith, if not required in any other case. The other accused-appellants are on bail. They need not surrender and their bail bonds shall stand discharged.