Jas Raj Chopra, J.
1. Accused Pancha Ram Sabuda, Manchhiya, Harjida, Shankernath, Jagdish Nath and Peeriya were tried for the offences under Sub-section 302, 148, 302/149, 147, 1208 and 109 IPC whereas accused Sukh Ram, Bhopal Chand, Roop Raj and Hamir Mal tried for the offence under Sub-section 302/120B and 302/109 IPC. The learned Addl. Sessions Judge vide his judgment dated September 10, 1974, convicted the appellants Pancha Ram under Section 302 and 148 IPC and sentenced them to suffer rigorous imprisonment for life under Section 302 IPC and to suffer rigorous imprisonment for 3 years under Section 148 IPC. Accused Shanker Nath, Harjida Babuda and Manchhiya were convicted of the offence under Section 302/149 IPC and were sentenced to suffer rigorous imprisonment for life. They were also held guilty of the offence under Section 147 IPC but no separate sentence was recorded against them for this offence. However, accused Peeriya, Jagdish Nath, Sukha Ram. Hamir Mal, Roop Raj and Bhopal Chand were acquitted of all the charges framed against them. The articles recovered were ordered to be destroyed after the expiry of the period of appeal.
2. The prosecution case succinctly stated is that there existed a long standing enmity between deceased Ganesh Dan, Sarpanch and his partly and the accused persons in village Gole. A number of cases were going on between the parties. Cases of murder, attempt to murder, hurt and so on were instituted or have been pending against each other. In some of them, rival parties were acquitted and in others they were convicted and so, the enmity was deep rooted between the two groups who were also contestants for the post of Sarpanch for a number of years. It is alleged that on Fagun Vadi 14 i.e. the night intervening between 17-3-1973 and 18-3-1973 dances were arranged in village Gole due to the Holi Festival. The bigger Gair danced at Akhariya and the small Gair danced in the Chohhata of the village as usual. It is alleged that at about 9 p m. in the night, deceased Ganesh Dan who was Sarpanch of the Gram Panchayat, Gole, went to take tea at the shop of Jaina Maharaj situated somewhere near the Chohhata. His brother-in-law Sohandan came to his house to enquire about his health, He was told by the daughters of Ganesh Dan that Ganesh Dan was better and has gone to take tea at the shop of Jaina Maharaj. It has been alleged by Sohan Dan that Ganosh Dan was not keeping well for the past about one month. He proceeded towards the hotel of Jaina Maharaj in order to meet him. When he came to the Chohhata, he found that small Gair was dancing and so. he stopped near the hotel of Poonama Khatri and started to witness the Gair. After some time, Ganesh Dan also came there from the side of Jaina Maharaj's hotel and stood near the hotel of Poonama Khatri. He was holding one small stick in his hand.
3. It is so alleged that when he arrived there and started watching the Gair, accused-persons Pancha Ram Shankernath, Harjida, Manchhiya, Babuda, Peeriya and Sankal Nath & Jagdish Nath came from behind the Pegion-Chabutra (Rostrum for Pegion) armed with Pharsis Kulhadis and Dhariyas in pursuance of a conspiracy which they hatched with accused Sukh Ram, Bhopal Chand, Roop Raj and Hamir Mal at the house of Hamir-mal. It is so alleged that when Ganesh Dan reached the Chohhata, Hamir Mal and Sukh Ram gave a signal to the accused persons who were inside the house of Hamir Mal and thereafter, accused persons immediately came there. Accused Pancha Ram, Shanker Nath and Harjida were armed with Dharias whereas accused Babuda and Manchiya were armed with Kulhadis & Sankal Nath and Peeriya were armed with lathies. As soon as they came near Ganesh Dan Pancha Ram availed of him and struck a Dhariya blow on the neck of Ganesh Dan on his right side by which his turban fell down and Ganesh Dan too, started falling down. At that point of time other four accused persons i.e. Sankal Nath Harjida, Babuda and Manchhiya also availed of him with the weapons which they were carrying and seriously injured him by which he fell down on the ground. Sankal Nath and Peeriya were wielding lathies and told the persons present there not to come near them or intervene, otherwise they will also meet the same fate. This desisted one and all from rescuing the Sarpanch by coming near the place of incident. The persons who were taking part in the Gair ran away from the place.
4. The prosecution has come with the case that accused Sohan Dan was present there. He implored the accused persons not to beat Ganesh Dan. This request of Sohan Dan was supported by Gepariya and Poonam who were also sitting in the Chohhata at the Chabutri situated in front of the house of Poonamchand Khatri. However, the occurrence did not take more than a minute and the accused persons after killing Ganesh Dan went away. It is so alleged that after the accused persons left the place of occurrence Sohan Dan, Gepa and Poonama Mali went near Ganesh Dan but he was dead Poonama then went to his house. Gepa remained there to guard the dead body of Ganesh Dan and Sohan Dan went to report the matter to the police. He met Bagta Ram. Head Constable, in Akhariya where bigger Gair was being danced. He informed him that these 7 accused persons armed with Dharias, Kulharis and lathies have killed Ganesh Dan and his dead body is lying in the Chohata. On this information, Bagta Ram accompanied Sohan Dan and came to the Chohhata and saw the dead body of Ganesh Dan and immediately went to the post office situated in the Gole and rang up the SHO, Jalore and informed him about the incident. The SHO directed him to protect the dead body and site and further informed him that he is reaching the place of occurrence.
5. It is so alleged that the SHO reached the place of occurrence in the night at about 1 a.m. He recorded the statements of Sohan Dan and Bagta Ram In the morning he inspected the site at the instance of the father of Ganesh Dan (deceased). He also inspected the dead body of Ganesh Dan and sent it for post mortem examination and seized his blood stained clothes. On 18th he arrested Jagdish Nath, whereas on 19th he effected the arrest of accused Babuda and Mancha Ram and after that as he was going for training and so he closed the investigation diary and thereafter the investigation was handed over to somebody else. The first information given by Shri Bagta Ram was formerly recorded in the Rojnameha on 17-3-1979 at about 11.25 p.m. and on the basis of that a formal FIR was drawn and a case under Section 302 IPC was registered. The site plan has been marked Ex. P. 17 and the site inspection memo has been marked Ex. P. 6. Inquest memo of the dead body has been marked Ex. P. 7 ad the autopsy report has been marked as Ex. P. I. It is alleged that at about 3.15 a. m. in the night intervening between 17th and 18th March, accused Jagdish Nath also went to the police and lodged a written report marked Ex. P. 3 which was also sent by the Head Constable Mohan Lal to the SHO vide memo Ex. P. 4 to village Gole. The Dr. S.L. Rai (PW 16) also preserved the stomach, small intestines, heart, lungs, liver, spleen and kidneys. The letter written by Dr. S.L. Rai to SHO, Jalore, in this respect has been marked Ex.P 2 Accused persons Peeriya, Shanker Nath Manchhiya and Harjida were arrested on 17-5-1973 and their arrest memos have been marked Ex.P. 8 to Ex. P. 11 where as arrest memos of Jagdish Nath, Babuda and Pancha Ram have been marked Ex. P. 18 to Ex. P. 22 respectively.
6. Accused Shanker Nath volunteered to give information on 23-5-1973 to the Inspector of Police, Cl, Jalore, that he can get recovered Dhariya of Manchhiya, Kulhadi of Peeriva and the lathi which was possessed by him. This information has been marked Ex.P 12 and the recovery memo has been marked as Ex.P 13. Certain documents relating to the previous enmity were taken into possession by the Investigating Officer. After the accused persons were challaned in the Court of Munsif and Judicial Magistrate, Jalore, the learned Magistrate took cognizance against the accused Sukh Ram, Bhopal Chand, Roop Raj and Hamir Mal for hatching a conspiracy to kill Shri Ganesh Dan with the challaned accused persons. After the committal enquiry, the learned Munsif and Judicial Magistrate committed the accused persons to the court of Additional Sessions Judge, Jalore, where all the 11 accused persons faced trial as stated by us above.
7. The learned Addl. Sessions Judge after trial, convicted and sentence all the accused appellants as stated above. However, the learned Additional Sessions Judge acquitted accused Peeriya, Jagdish Nath, Sukh Ram, Hamir Mal, Roop Raj and Bhopal Chand of the charges framed against them meaning thereby that the charge of the conspiracy was held as not proved. It also held the prosecution story unreliable so far as the involvement of accused Peeriya and Jagdish Nath in the occurrence was concerned and, therefore, they too were held not too have taken part in the occurrence and consequently they were acquitted of all the charges framed against them. Aggrieved against the judgment of the learned Additional Sessions Judge, the present five accused petitioners have preferred this appeal. Whereas the State of Rajasthan has preferred an appeal against the acquittal of accused appellants including accused Peeriya and Jagdish Nath.
8. We have heard Mr. S.R. Singhi and Mr. P.R. Choudhary, learned counsel appearing for the accused persons and Mr. L.S. Udawat, learned Public Prosecutor for the State.
9. We have meticulously gone through the record of the case and have also given our most earnest consideration to the submissions made at the bar by the learned counsels appearing for the parties. Now we have to see how for the judgment of the learned lower Court can be sustained. It is admitted fact on both the sides that there was a long standing enmity between the two parties one represented by Sarpanch Ganesh Dan and the other led by Sukh Ram and Hamir Mal. A number of revenue and criminal cases were pending between the parties. Even there was a political rivalry for the post of Sarpanch between these two groups and so naturally their relations were embittered and they were at daggers drawn. In this back ground after considering the evidence of the prosecution relating to conspiracy, the learned lower court held that the factum of conspiracy has not been established. The case of the prosecution in this respect was that all these persons conspired in the house of Hamir Mal and when Ganesh Dan came at the Chohhata, Hamirmal and Sukh Ram gave a singnal to the accused persons who had already assembled in the house of Hamir Mal and on their signal, all there 7 accused persons armed with weapons of offence came to the Chohata and inflicted injuries to Ganesh Dan. However, this evidence stands completely falsified by the testimony of PW 2 Gepa who had admitted in the cross-examination that all these 7 accused persons were already standing in the Chohata armed with the weapons behind the square of the Piao and Ganesh Dan came to the scene of occurrence after the arrival of the accused persons. Therefore, this story of prosecution that these accused were hiding in the house of Hamir Mal and they came out only on the signal of Hamirmal and Sukh Ram is falsified. Regarding this fact of conspiracy, the prosecution has examined PW 4 Tala Ram, PW 5 Ganesha, PW 6 Hema, PW 7 Bela Ram, PW 8 Chimna and PW 9 Bagh Singh. In the light of the facts explained above, we need not touch the testimony of these witnesses while deciding this appeal except PW 4 Tala Ram, who has also claimed that he is an eye witness of the occurrence. Having disbelieved the testimony regarding conspiracy and after having held the prosecution testimony false regarding arrival of the accused persons at the place of occurrence from the house of Hamir Mal on the signal of Hamir Mal and Sukh Ram, the learned Sessions Judge discussed the testimony of four eye witnesses i.e. PW 1 Shoan Dan, PW 2 Gepa, PW 3 Punama and PW 4 Tala Ram. It has further considered the testimony of PW 11 Bagta Ram, PW 12 Bhima Ram and PW 14 Ghanshyam Lal and PW 15 Narayan Singh as well as PW 16 Dr. B.L Rai and came to the conclusion that the offences as mentioned above have been fully proved against the accused (appellants) who are held to be the actual assailants of Ganesh Dan The story of the prosecution has, however, been disbelieved so far as Peeriya and Sankal Nath were concerned. It was held that the prosecution has not proved beyond doubt that accused Peeriya and Sankal Nath have taken part in the occurrence by welding lathies and consequently, they too have also been acquitted. Thus, relying on the testimony of these two eye witnesses, supported by the medical evidence and the ocular evidence, the learned lower court held that the involvement of 5 accused persons in the commission of crime has been proved.
10. We are constrained to observe that the appreciation of evidence by the learned lower court has been very cursory and superficial. It has not scanned and scrutinised the evidence with the care and caution expected of a Sessions Judge. Once it has held that there was a longstanding enmity existing between the parties resulting in number of Criminal and Revenue cases and at the same time having totally disbelieved the testimony of the prosecution witnesses about hatching of a conspiracy as also having disbelieved the evidence of eye witnesses regarding involvement of accused Peeriya and Sankal Nath it should have scrutinised the evidence of the eye-witnesses more closely and throughly specially when the prosecution has examined, only interested partisan and inimical witnesses. It has not been disputed before us that deceased Ganeshdan has met his death on that very night, i.e., the night intervening between 17th and 18th of March, 1973 in the Chohhata of village Gole where his dead body was found lying by Head Constable Bagta Ram. It has further not been disputed before us that he met with a homicidal dean. If any corroboration is needed for this conclusion, we may gainfully refer to the testimony of PW 16 Dr. B.L. Rai, who has conducted the autopsy on the body of late Shri Ganesh Dan. He conducted his post mortem on 18-3-1973 at 1.15 p.m. The dead body was identified by Mohan Dan and Sanwal Dan. The doctor has observed that when he conducted the autopsy of Ganesh Dan he found that the pupils were dialeted and the eyes were closed. He had the following injuries on his person:
(1) Incised wound 15 cm. x 2.5 cm. x brain deep transverse on skull from 5 cm. above left ear upto 3.5 cm. on right side of mid line cutting both parietal underneath, causing gap of 9.5 cm. between cuts ends of bones from which brain matter had come out;
(2) Incised wound 19 cm. x 9 cm. x 4 cm. deep anteriorly and 9 cm. deep posteriorly standing from 3.5 cm. from middle of chin running obliquely posteriorily below right mendible mastoid region. Cutting all muscles, submendible and panotid, glands, external and internal panotid anteriors of right side external and interal jugaral veins and nerves upto second carvical vertebra;
(3) Incised wound 5 cm. x 2.5cm. x 1.5 cm, semi-circular with covexity towards shoulder and deep medially over right schromian region;
(4) Incised wound 1 cm. x 0.5 cm. oblique on pinn of right ear 2 cm. above lobule of right ear;
(5) 11 small contusions of 1 cm. x 0.5 cm. and 0.5 cm. x 0.5 cm. size spread over anterior of upper half of left side of chest;
(6) 9 Contusions 1 cm. x 0.5 cm. scattered over right side of chest.
11. On internal examination, he found that there was a fracture below injury No. 1 passing from left parietal bone going down wards and slightly posteriorily upto 5 cm. behind and above left mastoid region. The membranes and brain were transversely cut in the meninges upto 1.5 cm. deep at the base of injury No. 1. On the right parietal region this fracture line entered downwards and posteriorly upto protubrance then again turning down-wards and posteriorly for 2 cm. and then turn medially upto sagittul suture. Stomach was pale and contained digested food. In the opinion of the Doctor, the cause of death was due to suncope and coma resulting from ante-mortem wounds on neck and head. Duration after death was doubt 12 to 16 hours. According to him all these injuries along with their internal effect were ante-mortem in nature. He has further stated that these injuries could be caused by weapons like Dhariya and Kulharis. According to him, all these injuries were grievous in nature except contusions which were simple. Injury Nos. 1 to 4 were caused by sharp weapons whereas injury Nos. 5 to 6 were the result of blunt weapons. He has stated that Ex. P. 1 post-mortem report is in his hand and bears his signatures at A to B. According to him injuries No. 5 to 6 could be caused by the nails put under the heels of the shoes. According to him, sharp weapon injuries could be the result of one weapon and as well as number of different weapons also. He was initially examined on 17-12-1973. His further cross-examination was conducted on 21-8-1974 and then he told that if the victim is lying on the ground and if the assailant puts his feet on the chest of the injured while wearing a shoes having stars on the sole like Ex. M. 1 and then the accused strikes a blow with dhariya on the neck of the injured, then injuries Nos. 2, 5 and 6 could be caused. According to him injury No. 3 and 4 could be caused by a single blow of the weapon. He has also stated that all these injuries cumulatively and injuries Nos. 1 and 2 individually were sufficient in the ordinary course of nature to cause the death of the deceased. He has also opined that if the deceased falls on the small pieces of stones and somebody presses his chest against the stones, which were lying there then also the injury Nos. 5 and 6 could be caused. Probably it is not the case of the prosecution and no body has said that this piece of land of the Chohhata where he fell down dead had any small pieces of stones lying there. Rather, PW 3 Poonama has stated that in the Chohhata there was only sand and, therefore, the possibility of stones lying there is ruled out. Thus, from the testimony of PW 16 Dr. B.L. Rai it is clear that deceased Ganesh Dan died a homicidal death.
12. The learned lower court has however, relied on the testimony of PW 3 Sohan Dan, PW 2 Gepa, PW 3 Poonama and PW 4 Tala Ram and on the basis of their testimony, it has held that the accused persons are guilty of committing the murder of Ganesh Dan. We have critically gone through the statements of these four eye witnesses. All of them have stated that at the same when the occurrence took place they were present in the Chohhata. Ganesh Dan came from the side of Jaina Maharaj's hotel, and stood near the hotel of Poonam Chand Khatri or in the Chohhata somewhere near that Hotel. On the basis of the testimony of PW 2 Gepa it can safely be said now that these 5 accused persons, i.e.. Harjida, Babuda, Pancha Ram, Shanker Nath and Manchhiya were bidding behind the Piao situated in the Chohhata. Ganesh Dan came from the side of west and stood near the hotel of Poonam Chand Khatri. Accused persons all of a sudden came there from behind that Piao. Out of these five accused persons, three accused persons viz., Pancha Ram. Shanker Nath and Harjida were armed with Dhariyas, Babuda and Manchhiya were armed with Kulharis. The attack was opened by Pancha Ram with a Dhariya. He inflicted a blow on the neck of Ganesh Dan. As soon as Ganesh Dan received this injury on his neck, his turban fell down and when he himself was in the process of falling down all the other four accused persons Harjida, Shanker Nath Manchhiya and Babuda availed of him with their weapons and inflicted injuries to Ganesh Dan for 1/2 minute or a minute and then Ganesh Dan fell down. Where upon, all the accused persons ran away from the spot. We are not discussing here the testimony regarding Peeriya and Jagdish Nath because they have already been acquitted and although an appeal against their acquittal has been filed by the State but it has not been pressed by the learned Public Prosecutor on behalf of the State. These four witnesses have categorically stated that after the deceased Ganesh Dan fell down, no injury was inflicted to Ganesh Dan and all the accused persons ran away from the spot. During the course of occurrence, it is alleged that Sohan Dan implored the accused-persons not to beat Ganesh Dan. This request was also made by Gepa and Poonama who were also sitting in the square of Poonamji-Maggaji's house and they too requested the accused persons not to beat Ganesh Dan. After the accused persons left the place of occurrence, they went near Ganesh Dan and found him dead. Poonama has stated that after this he went towards his house and on the next day he was down with fever for 4-5 days and so he was sleeping at his well and went no where else. PW 4 Tala Ram has, however, stated that as soon as he saw Ganesh Dan falling down, he started shivering and he ran from there and he did not go near the dead body of Ganesh Dan and went to his well and after that he developed diarrhoea and did not recover therefrom and so he remained at his well for these 12 days. Thus, all these four eye-witnesses have stated that they have seen these 5 accused persons inflicting injuries to Ganesh Dan and they were very much present there when this occurrence took place. The entire incident has taken place only 1/2 minute or a minute. Although PW 2 Gepa has stated in his statement in the committing court marked Ex. P 5 at C to D that belabouring took place for about 10 minutes but now he has stated that it was only an approximation and whatever he has stated before the lower court was not correct. Sohan Dan, however, after leaving Gepa to guard the dead body of Ganesh Dan went to the Police Chowki, Gole. PW 11 Bagta Ram, Incharge of Police Chowki, Gole, has stated that on that date, he was on duty at Akhariya, where bigger Gair was being danced. Sohan Dan came to him at 10.30 p.m. and told him that in the Chohhata where smaller Gair was danced, Ganesh Dan has been murdered by Pancharam, Harjida, Peeriya Manchhiya, Babuda, Shanker Natha and Jagdish Nath by Dhariyas and Kulharis. He however, informed him that after murder, the accused persons fled away from the scene of occurrence. He then went to the spot and saw Ganesh Dan dead in the Chohhata. He posted two police constables to guard the dead body of Ganesh Dan and went to the Post Office, Gole, and rang up the SHO Jalore, and then after that he came to the Chowki and recorded the entire incident in his Rojnamcha. This Rojnamcha has not been produced before the court. The copy of the Rojnamcha has not been relied on by the prosecution. No copy has been supplied to the accused persons and therefore, when his witness tried to prove this Rojnamcha the learned lower court disallowed its proof. He has admitted that he made no immediate record of the information given to him by Sohan Dan. The information of Sohan Dan was oral to him and he went on the spot and then after informing the SHO on phone he came to the Police Chowki and recorded that information. Thus no immediate record of the information was maintained by him and consequently what so ever was maintained was not relied on by the prosecution while submitting the documents under Section 173 Cr. PC and later when it tried to prove that document, it was not allowed to be proved by the learned lower court and this is of no avail.
13. Mr. Singhi learned counsel appearing for the accused persons tried to argue that the entire fabric of this case is a figment of imagination. Of course it cannot be disputed that Ganesh Dan was killed or murdered by one or more than one persons at the Chohhata of village Gole but beyond that the entire fabric of the prosecution case has been so built up that although it gives an appearance of a true version of the occurrence but it is really a figment of imagination on behalf of Investigating Agency as well as Sohan Dan who is the real brother-in-law of Ganesh Dan. According to the learned counsels appearing for the accused persons, neither Sohan Dan nor PW 2 Gepa, PW 3 Poonama and PW 4 Tala Ram were the alleged eye witnesses of the occurrence. They all are built up witnesses. The FIR is an ante-dated document. It was sent late to the court i.e. on 20th although it was alleged to have been recorded on 17th night. No case on the basis of this information was registered at the time when it is alleged to have been registered because the case number does not find place in the site inspection Memo Ex. P. 6. He has further stated that the Investigating Officer has taken up the investigation of a built up case which actually did not exist. In support of this contention, he has argued that Ex. P. 17A was recorded on the basis of a telephonic talk which Bagtaram had with the SHO Bagtaram has stated that he made a telephonic call from the Post Office, Gole. The charges of the telephonic call were neither paid by him nor paid by the SHO Jalore. No record has been produced that payment of this call was made by the S.P. Office. This information was alleged to have been recorded at 11.25 p.m. on 17-3-1973 but the copy of the FIR has been received by the court on 20-3-1973 at 3.00 p.m. PW 15 Narain Singh SHO has stated that on 18th and 19th, there were holidays due to Holi and, therefore, this FIR was sent late. Learned counsel for the accused persons has however argued that the information has to be sent to the Magistrate and not to the Court. The Magistrate was in Jalore and so the copy of the FIR should have been sent to his house. In this respect he placed reliance on Sarwan Singh v. State of Punjab 1976 CAR 385 (SC). There was delay of two days in sending the FIR to the Magistrate which created suspicion in the mind of the Court that it is ante dated. However, the larger Bench of Hon'ble the Supreme Court has held in Sarwan Singh's case (supra) that it is well settled law that mere delay in despatch of the FIR is not a circumstance which can throw out the prosecution case in its entirety. Thus, only on the basis of the late sending of the case of the prosecution cannot be held as suspicion. It only guards the court to scrutinise the evidence of the case with care and caution. The contents of the FIR shows that it is not a fabricated document because only the names of the assailants are mentioned in this FIR Bagta Ram is not an interested witness and so he could not make a false report. Much stress has been laid by the learned counsel for the accused persons about the absence of case number of the FIR in Ex. P. 6 and Ex. P. 17 have been prepared at the same time and Ex. P. 17 does record the FIR number as 43 of 17-3-1973 and, therefore, mere non-mention of the number of FIR in Ex. P. 6 does not materially affect the prosecution case. If the prosecution wanted to fabricate the document it could certainly have made the FIR more detailed. We are, therefore, unable to accept this part of the argument of the learned counsel for the accused persons.
14. Now we next take up the point whether Sohan Dan himself is an eye witness of the occurrence. He has admitted that he only disclosed to Bagta Ram the names of the accused persons who have killed Ganesh Dan and this fact is supported by PW 11 Bagta Ram. If he had been an eye witness of the occurrence, he would certainly have told Bagta Ram PW 11 that he has seen the occurrence. He was standing near the hotel of Poonam Chand Khatri and Sarpanch came and stood nearby him. He has also not stated to Bagta Ram as to who were the persons present in the Gair or took part in the dance when this murder took place. Moreover, he has now come with a case that he made a request to the accused-persons not to kill Ganesh Dan and on this he evoked support from PW 2 Gepa and PW 3 Poonama and they, too requested the persons not to kill Ganesh Dan. As per him PW 4 Tala Ram was also present and so when he was observing the Gair, he knew as to who were participating in the Gair. As per him, he lives in this village for the past about 7 years and so he knows these witnesses who have now come forward as eye witnesses of the occurrence and so, it was essential for him to have disclosed the names of the eye witnesses and the part played by him. Secondly he went to the house of Ganesh Dan to enquire about his health and when Ganesh Dan came to witness the Gair and stood in front of the hotel of Poonam Chand where he was sending, it was most natural for him to have talked with Ganesh Dan about his health because he has stated in the lower court that did not have any conversation with Ganesh Dan which is most unnatural. Learned counsel for the accused appellants argued that it could be possible that Sohan Dan have reached the place of occurrence after the occurrence and the persons taking part in the Gair have informed him as to who have killed Ganesh Dan. He has not seen the actual occurrence. Had he observed the actual occurrence, there is no escape from the fact that he would have mentioned his name as an eye witness and he would certainly have mentioned the names of Gepariya, Poonama and Tala Ram as the alleged eye witnesses of the occurrence to Bagta Ram. At least Gepariya and Poonama came near the dead body, saw the dead body and after that Sohan Dan has left Gepa there to guard the dead body. Thus, these facts which came to the knowledge of Sohan Dan before he made the report would certainly have been disclosed by him to PW 11 Bagta Ram, if at all they were in the knowledge. Sohan Dan has categorically admitted that he did not disclose to Bagtaram the names of the eye-witnesses. Not only that even he did not tell him that he himself has seen the occurrence. In a case of group rivalry creation of witnesses is not an unthinkable proposition.
15. PW 15 Narain Singh has admitted in his statement that when he reached the place of occurrence at 1 a.m. in the night, Head Constable Bagta Ram and Sohan Dan were there and he recorded their statements. It is not known why Gepa left the place before the S.H.O. came because no explanation is forthcoming for his leaving that place. However, this witness has admitted in his cross-examination that he recorded the statement of PW 1 Sohan Dan under Section 161 Cr.PC before he inspected the site and prepared the site plan Ex. P. 17. Shri Narain Singh was asked why he has not shown the places from where the alleged eye witnesses have seen the occurrence in Ex. P. 17 He has curtly replied that he did not deem it necessary. He has further admitted that he inspected the site at the instance of the persons who knew about the occurrence. Sohan Dan has admitted that when the site was inspected, he was present with the S.H.O. and still site was not inspected at the instance of Sohan Dan. Although as per his police statement Ex. D 1 he claimed himself to be an eye witness of the occurrence. When he was told that Sohan Dan was present there and so, the site should have been inspected in his presence, the S.H.O. had no other explanation but to say that Sohan Dan was not present at the time and, therefore, he inspected the site at the instance of Nathu Lal.
16. Learned counsel for the accused-appellants has advanced two fold arguments about ii. Firstly he says that the statement of Sohan Dan was not recorded at the time alleged by the S.H.O. and actually upto the lime the site was inspected and the site plan was prepared, the police did not know who were the eye witnesses of the occurrence. Otherwise if Sohan Dan has already stated that he has seen the occurrence and has been the eye witnesses present at the spot, it was incumbent upon the SHO. to have inspected the site at his instance. He being an eye witness of the occurrence, he would certainly have pointed out the places from where the eye-witnesses have seen the occurrence. It has been observed by a Division Bench of this Court in Moti v. State of Rajasthan 1962 RLW 448 as under:
We also cannot help pointing out that the investigation of the case was far from satisfactory and the Investigating Officer failed to investigate the case with that measure of responsibility which was expected of him in a case of this kind. We also take the opportunity of expressing the hope that the authorities concerned will take the necessary steps to see that proper plans of the scene of offences at least in cases of grave offences are prepared by those incharge of the investigation and that such plans should be drawn up with reasonable approximation to the realities of the case and should show the various important places with reference to their exact distances from the scenes of crime, so as to serve a valuable check for the truth or otherwise of the respective stories put forward by the prosecution or the defence, as the case may be. Let a copy of this judgment be sent to the Chief Secretary to the Government for such action as may be necessary.
17. This paragraph shows that the copy of the judgment was sent to the Chief Secretary and from thereon instructions must have been issued to the Investigating Officers to take notice of these principles as laid down above. The SHO himself admits that he was obliged to take this precaution but he has not taken those pre-cautions and this leads us to infer that actually till the site was inspected it appears that Sohandan was not considered to be an eye witness of the occurrence & therefore the site was not inspected at his instance and consequently, the absence of the places from there the other eye witnesses have seen the occurrence must certainly have been pinted out in the site plan if Sohandan was present at the time the site plan was prepared. Sohandan has categorically stated that he was present when the site plan was prepared. Taking into consideration, the totality of the circumstances explained above, this creates a doubt in our mind that Sohandan is not an eye witness of the occurrence.
18. So far as PW 2 Gepa is concerned, he has stated that he left the occurrence because he was directed by Bagtaram go to in search of the accused persons Firstly this fact is not supported by PW 11 Bagtaram and secondly this explanation appears to be palpably false. This witness was on inimical terms with the accused party. He has seen one of his leader being killed by these persons with Dhariyas and Kulharis so mercilessly. It is, therefore, unthinkable that he would gear up the courage to go alone in search of these accused persons. Secondly he says that after 2 days when he returns to village Gole, he informed Bagtaram that the accused persons were not found. Bagtaram then advised him to go to Jalore and inform the SHO about it. He has stated that then he want to Jalore on that very day and met the SHO and informed him about it. He then recorded his statement under Section 161 CrPC at P.S. Jalore. As against this PW 15 Narain Singh has stated that he has recorded the statement of PW 2 Gepa on 29-3-1979 at Police Chowki, Gole which is Ex. D. 2
19. PW 11 Bagtaram has stated that it was he who was sent by the SHO to search out the accused persons. He left the place at 3. 15 a.m. in the night on 17-3-1973 He went to the well of Pancharam but he was not found there Then he went to the well of Nathu and then he again visited number of wells but no accused was found which shows that it was Bagtaram who sent in search of the accused-persons and not this witness Gepa. When his explanation about his late examination is disbelieved, it creates a doubt whether he is an eye witness of the occurrence. Moreover, if he was not sent in search of the accused persons he should have been there at the scene of the occurrence because he has already stated that he was there guarding the dead body of Ganesh Dan and so he had no valid reason to leave the place of occurrence.
20. PW 3 Poonama has stated that after seeing the dead body he went to his well and in the morning he was down with fever and remained at the well for 4-5 days He was examined on 22-3-1973 i.e. 5 days after the occurrence If they were available all the time on their wells there is no ostensible reason why they were not examined earlier when SHO has visited Gole village number of times during this period.
21. Another eye witness PW Talaram was examined by the police after about 14 days of the occurrence. He has stated that after seeing the dead body of Ganeshdan he developed shivering and so he went to his well and thereafter, he developed diarrhoea. The conduct of these two witnesses is also highly unnatural and doubtful.
22. PW 3 Poonama has stated that he only informed about this occurrence to his wife and not to anybody else He passed through the Akariya where the bigger Gair was being danced but he did not stop there and did not inform any body else about this ghastly murder which is most unnatural. If this witness who is a villager has seen the occurrence of murder committed by number of persons, he should certainly have informed Them that such a serious crime has taken place and Sarpanch of the age has been killed by so and so. Moreover, he has stated at the trial that he did not go to the Ayurvedic Hospital to take medicines. Had he gone to the hospital, the Chowki was corning in the way and therefore, he certainly would have informed this fact to the police. He was confronted with his earlier statement in the committing court marked Ex. D. 6 portion A to B, wherein he has stated that he went personally to the hospital to bring the medicines but now he has stated that he did not give this statement before the committing court which clearly shows that he has indulged in a false hood. His non-examination for such a long time i.e. 5 days clearly creates a doubt in our mind that he is a cooked up witness.
23. PW 15 Narain Singh has stated that Prithvi Singh, Constable, was sent to call number of persons who could depose about occurrence and Prithvi Singh did come back with 10 persons but the case diary does not contain any note that Gepa and Poonama and for that matter Talaram were summoned by the SHO. The SHO, however, admits that they did not come on that day and he recorded the statements of Gepa on 22-3-1973 which clearly shows that till Prithvi Singh was sent in search of the witness it was not disclosed to the police either by Sohan Dan or by anybody else that Gepa, Poonama and Tala Ram are the eye witnesses of the occurrence.
24. So far as PW 4 Tala Ram is concerned, his conduct is also very strange. He says that due to shiverrling he went to his well. In the way the bigger Gair was being danced and he did not stay and inform about this occurrence to anybody. The Police Chowki also came in his way but he did not stay there and did not inform anybody else about the occurrence. He gave an explanation that out of fear he did not inform anybody. There was no occasion for him to fear anybody and he could have stated the facts to the police then and there as the accused persons have already left the place of occurrence. He has stated that he remained for 12 days at his well and if that was so, Prithvi Singh would certainly have traced out or informed the S.H.O. that he is ill and so his statement may be recorded at his well. Such a long delay in recording the statement of such a material eye witness raises a doubt about the prosecution case and leads to the inference that in actuality they were not the eye witnesses of the occurrence and they have been set up as cooked up witnesses. In this respect, reference may be made to G.B. Patel v. State of Maharashtra : 1979CriLJ51 , wherein their Lordships of the Supreme Court have been pleased to observe as under:
Delay of a few hours simpliciter, in recording the statements of eye witnesses may not, by itself amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Thus, under the facts and circumstances of the case delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.
25. It has been held by their Lordships of the Supreme Court in Balakrishna v. State of Orissa : 1971CriLJ670 that unjustified and unexplained long delay on the part of Investigating Officer in recording the statements of the material eye witnesses during investigation of murder case will render evidence of such witnesses unreliable.
26. It was argued by the learned counsel for the accused persons that the incident has taken place in the Chohhata where a lot of persons were playing Gair. PW 4 Tala Ram has stated that Saviya and Ukiya were playing Gair. He has further admitted that Keshar Ram and Okha Ram were also sitting by his side. One Hanja was also with him. It is admitted case that Mobata and Nabu Dholi were beating the Dhol when the smaller Gair was playing in the Chohhata. Many more persons must have taken part in the Gair before whom this occurrence has taken place but it is unfortunate that the prosecution has only examined interested and inimical witnesses whose presence at the place of occurrence is very doubtful and it has failed to examine those witnesses whose presence at the time to the occurrence is admitted. Failure to examine independent witness in such circumstances when their presence was natural and stands admitted further lend support to the argument of learned counsel for the accused persons that actually the prosecution was not interested in examining independent witnesses before the Court and it has only produced the cooked up witnesses whose statements were recorded so late that it creates a doubt in the mind of the Court whether they were eye witnesses of the occurrence at all. When an occurrence takes place before many persons and only inimical and interested witnesses are produced and independent witnesses who could depose about the occurrence are not examined it gives rise to an inference that the case is concocted. In this respect we place reliance on Jagdeo Singh v. State 197 Cr.LJ 236 where in it has been observed as under:
Non-production of such independent and material witnesses constitute severe infirmity in the prosecution case.
27. Keeping in view the aforesaid observations, although the four eye witnesses of the occurrence have deposed that the five assailants have inflicted injuries to Ganesh Dan and have killed him, we are unable to accept their testimony that they have seen the occurrence, They appear to be cooked up witnesses.
28. Even when we examine the testimony on the touch stone of medical evidence then too, their presence at the scene of the occurrence becomes doubtful. There are only four sharp weapon injuries on the person of Ganesh Dan and five persons armed with sharp weapons are alleged to have inflicted at least one blow to Ganesh Dan before he fell down PW 16 Dr. B.L Rai has stated that injury Nos. 3 and 4 could be the result of the same blow if the weapon of offence slips. Thus, there are sharp weapon injuries on the person of Ganesh Dan which could have been the result of only 3 blows and so 5 persons cannot be held to be the authors of these 3 effective blows. Injury to the ear cannot be inflicted by an axe or a dhariya without causing injury to the dependent part of the body i.e. upper part of shoulder. It is not an injury by knife nor a dhariya or an axe. If these witnesses have really seen the occurrence, they could not have stated that all these 5 witnesses have inflicted injuries with sharp weapons. All these four eye-witnesses have stated that after the deceased Ganesh Dan fell down no injury was inflicted to him and actually the accused persons have left from the place of occurrence after he fell down. Ex. P. 7 Inquest Memo of deceased Ganesh Dan discloses that he was lying on the ground face ward i.e. his back was towards the sky and front portion of the body was towards the ground. As per Dr. B.L. Rai, there are 11 small contusions of 1 cm. x 0.5c.m.x0.5 cm. x 0.5 cm. size spread over anterior or upper half of left side of chest and 9 contusions 1 cm. x 0.5 cm. scattered over right side of chest i.e. in all 20 contusions spread on left and right of the chest. As per the doctor, these injuries are possible by the Khurtal of the shoes. The place where he was found dead is a sandy place and no stones were lying there PW 4 Tala Ram has admitted that it was a sandy place and therefore, some body must have caused these injuries on the person of the deceased by standing on his chest. None of the eye witnesses have explained these injuries found on the chest of the deceased as to how they came to be inflicted. Sohan Dan has stated that he left behind Gepariya to guard the dead body of the deceased and so no body could have dealt with the dead body of Ganesh Dan in the presence of Gepa. It is no body's case that they were inflicted to Ganesh Dan after he was dead. More over as per Dr. B.L. Rai all these are antemortem injuries and so they were received by Ganesh Dan when he was alive and at a time when the other sharp weapon injuries were inflicted on his body because duration of all the injuries is the same as per Dr. Rai. The non-explanation of the injuries received by deceased on his chest in such large number clearly shows that these witnesses have not seen the occurrence otherwise they would certainly have explained these injuries. When the deceased was lying on the ground faceward and no injury was inflicted on his person after he fell down, then it is clear that these injuries on his chest could not have been received after he fell down. Thus, this aspect of the matter clinches the entire matter and clearly goes to establish that these persons have not seen the occurrence.
29. It may be that due to the enmity existing between the parties these persons might have killed Ganesh Dan. It may also be true that some of the persons present on the scene of the occurrence might have informed Sohan Dan as to who have killed Ganesh Dan but between a fact which may be true and which must be true, a long distance has to be travelled by the prosecution by adducing clear cogent and reliable evidence. Unfortunately the carrier in the shape of these four eye-witnesses employed by the prosecution has not been able to cover that distance conclusively and reliably and therefore, these five accused persons deserve the benefit of doubt and consequently acquittal.
30. It may be stated that Ex. P. 3, the document which was submitted by Jagdish Nath before PW 10 Mohan Lal cannot be read into evidence. Firstly because it was presented to the police at 3.15 a.m. before the time the SHO had already reached the place of occurrence and has started investigation and, therefore, it is hit by Section 162 Cr. PC and secondly this FIR is not inculpatory. Jagdish Nath does not admit his guilt in this FIR and, therefore, it cannot be used as a confessional statement on this behalf, on the basis of which any recovery has been made under Section 27 of the Evidence Act. His statement that the other persons gave beating to Sohan Dan cannot be read into evidence and, therefore, this Ex. P. 3 is a document of no consequence.
31. PW 14 Ghanshyam Lal has admitted that accused Shanker Nath gave information to the police on 23-5-1973 that he will get recovered one Dhariya, Kulbari and lathi which belonged to Harjeeda and Manchhiya and himself. These three weapons were recovered vide memo Ex.P 30.However, no human blood was found either on Dhariya or on kulhari or on lathi and so, it cannot be said on the basis of Ex. P. 12 that these two Dhariya and Kulhari belonged to these the accused persons and so this recovery also is of no consequence. The lathi which is alleged to belong to Shanker Nath is not blood stained and in villages villagers do keep such lathies usually and therefore this recovery also cannot be used as an incriminating circumstance against the accused persons.
32. It was argued by the learned Public Prosecutor that Mobata and Nebu filed affidavit before the SDO Bhinmal that they do not know anything about the occurrence. However, their statements were recorded under Section 162 and under Section 164 Cr. PC and they threw light on the occurrence and so it was the duty of the prosecution to produce them, failing which, the learned lower court should certainly have called and examined them as court witnesses in this case. If they would have deposed before the trial Court that they do not know anything about the occurrence, of course adverse inference could not have been drawn against the prosecution but when these independent witnesses who have been named above including Mobata and Nebu have not been produced by the prosecution and adverse inference should be taken against the prosecution that had they been examined they would certainly have stated against the prosecution. We place reliance in this on Savia v. State 1985 Cr. LR (Raj) 18.
33. On the basis of the discussion made above, we find that the learned lower court erred in convicting these 5 appellants i.e. Pancharam of the offence under Section 302/149 IPC and accused Shanker Nath Harjida, Babuda and Manchhiya of the offences under Section 302/149 IPC and 147 IPC. The learned lower court has rightly held that charge of conspiracy is not proved against the accused persons Hamirmal, Roop Raj, Sukh Ram and Bhopal Chand and so it has rightly acquitted them of the charges framed against them. The appeal of the State filed against the acquittal of accused Peeriya and Jagdish Nath has not been pressed before us by the learned Public Prosecutor and we feel that he has rightly done so.
34. We, therefore, accept the appeal No. 574 of 1974 and set aside the conviction and sentence of these accused persons viz., Pancha Ram, Babuda, Manchhiya, Harjida and Shanker Nath recorded against them by the learned Add 1. Sessions Judge, Jalore, and acquit them of the offences with which they were charged in this case. The appeal filed by the State is also dismissed.