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Judgment
P.K. Jaiswal, J.—This judgment shall govern the disposal of both the appeals, as they arise out of common judgment of conviction and sentence dated 9.1.03, passed by the First Additional Sessions Judge, Shajapur in Sessions Trial No. 11/2003. By the aforesaid judgment accused/appellants Ramprasad, Sampatbai, Atmaram, Narainsingh, Bherulal, Babulal, Durgaprasad, Bhagirath, Badriprasad and Gokul have been convicted for an offence punishable under Sections 302/149, 326/149 & 323/149 of the IPC. Accused Sampatbai has also been convicted u/s 147 of the IPC and the remaining accused persons have further been convicted u/s 148 of the IPC. According to their conviction the sentence awarded to the appellants is as under:-
Conviction under Sections
Sentence
147 of IPC
1 years R.I.
148 of IPC
1 years R.I.
302/149 of IPC
Life imprisonment with fine Rs.100/-.
326/149 of IPC
3 years'' RI with fine Rs.100/-.
323/149 of IPC
6 months'' RI.
Accused Ramprasad, Sampatbai and Atmaram have preferred Criminal Appeal No. 134/03, while accused Narainsingh, Bherulal, Babulal, Durgaprasad, Bhagirath, Badriprasad and Gokul have filed Criminal Appeal No. 175/03.
According to the prosecution case, on 1.11.01 at about 8-8.30 PM Hemraj S/o Chainaji was in his Gumti (hut). The complainant Chainaji (Chain Singh) (PW4), was standing near the Gumti. Radheshyam (PW3), after taking his meal was going towards the Gumti and when he reached near Gumti, accused Sampatbai started abusing him and was coming nearer to him and behind her accused persons namely Ramprasad, Narainsingh, Bherulal, Atmaram, Babulal, Durgaprasad, Bhagirath, Badriprasad, Gokul were coming. They were armed with deadly weapon like Dhariya, Farsi, knife and lathi. All the accused persons unlawfully assembled there near the Gumti and forcibly brought him (Hemraj) out of the Gumti and surrounding him with a common object to commit his murder. They started inflicting knife injuries to him. When Radheshyam (PW3) and Chainaji (PW4) tried to save Hemraj, at that relevant point of time Gokulprasad and Narainsingh caused lathi injuries to Radheshyam (PW3). He received injuries on his right leg and head. Bherulal (PW5) when tried to save Hemraj, accused persons namely Ramprasad, Bhagirath and Bherulal surrounded Hemraj and started inflicting knife injuries. As a result of assaults, Hemraj fell down. Chainaji (PW4) again tried to intervene; he was also belabored by accused persons namely Atmaram, Durgaprasad and Badriprasad and caused knife and Farsi injuries to him, due to which Chainaji (PW4) also fell down. On raising alarm, accused persons Narain Singh, Gokul Prasad and Babulal caused lathi injuries to Hemraj and Chainaji (PW4). The incident was witnessed by Bherulal (PW5), Arjun, Ramesh, Pappu and others. Due to injuries sustained by Hemraj he died on the spot. The Gumti (hut) in question was opened by deceased Hemraj and complainant party two days'' prior to the date of incident. There was dispute between the complainant party and accused persons over the ownership of land over which the Gumti was installed. A report of the incident (Ex.P/5) was lodged by Radheshyam (PW3) at about 11.15 PM, in the night on 1.11.01 at Police Station Salsalai, which was reduced in writing by the then Assistant Sub Inspector Ramchandra Rathor (PW10) vide Ex.P/5. Copy of the FIR was sent to the court concerned on 2.11.01. On a report having been filed, an offence was registered. Ajay Kumar Verma (PW13), Station House Officer, Police Station Salsalai started investigation. Through Safina form (Ex.P/7) he called the witnesses. Inquest report was prepared vide Ex.P/8 in presence of Radheshyam (PW3), Bherulal (PW5) and other witnesses. A requisition for postmortem (Ex.P/ ) was sent. At the instance of Radheshyam (PW3) spot map (Ex.P/6) of the place of occurrence was prepared. By seizure memo Ex.P/4) blood mixed soil and plain soil were seized vide Ex.P/41. Radheshyam (PW3) and Chainaji (PW4) were sent for medical examination. Autopsy of deceased Hemraj was conducted by Dr. N.K. Gupta (PW1). Ex.P/1 is the postmortem report. Ex.P/2 is MLC report of Radheshyam (PW3). Ex.P/3 is opinion in respect of seized arms towards injuries caused to the injured and the deceased.
On 2.11.01 Chainaji (PW4) was examined by Dr. N.C. Jhala. Ex.P/28 is his MLC report and Ex.P/31 is his x-ray report. Ex.P/9 is spot map prepared by Patwari Chandar Singh (PW11). Constable Dhalsingh (PW12) prepared seizure memo (Ex.P/39) in respect of clothes of deceased. Investigating Officer, Ajay Kumar Verma (PW13) arrested the accused persons vide their arrest memos Ex.P/ 10, P/11, P/13, P/15, P/33, P/43 and P/44. Ex.P/16 is memo of Bhagirath, Ex.P/17 is memo of Narainsingh, Ex.P/18 is the memo of Bherulal, Ex.P/19 is memo of Atmaram, Ex.P/20 is memo of Babulal, Ex.P/34 is memo of Badri Prasad, Ex.P/45 is the memo of Ramprasad, Ex.P/46 is memo of Durga Prasad. On the basis of above memorandums knife was recovered from Bhagirath vide Ex.P/21. Vide Ex.P/22 knife was recovered from Bherulal, vide Ex.P/ 23 knife was recovered from Atmaram, Vide Ex.P/25 Lathi was recovered from Babulal, Vide Ex.P/29 lathi was recovered from Narain Singh, Vide Ex.P/35 Farsi was recovered from Badri Prasad, Vide Ex.P/47 knife was recovered from Ramprasad, Vide Ex.P/48 knife was recovered from Durga Prasad. Ex.P/42 is memo by which accused Bhagirath was sent for medical examination by the Investigating Officer (PW13). Accused Gokul Prasad was arrested vide arrest memo (Ex.P/49) and one lathi was seized from him by Ex.P/40. Seized articles were sent for examination to Forensic Science Laboratory and Ex.P/52 is the FSL report. After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate, Shajapur. On 8.1.02 the case was committed to the Court of Sessions from where the same was made over to the First Additional Sessions Judge, Shajapur for trial on 15.1.02. During trial charge under Sections 147, 148 and 302 of the IPC and in the alternative under Sections 302/149, 307 & 307/149 of the IPC were framed against the accused persons. They abjured the guilt and pleaded trial. The prosecution examined as many as 13 witnesses. The learned trial Court, after appreciating the evidence on record convicted and sentenced them as stated herein above. The judgment of conviction also directs imprisonment in default of payment of fine.
Radheshyam (PW3) and Chainaji @ Chainsingh (PW4) are injured witnesses and real brother and father of the deceased. Bherulal (PW5) is the eyewitness of the incident. Dr. N.K. Gupta, (PW1) who conducted the autopsy on the body of deceased Hemraj has opined that cause of death of Hemraj S/o Chainaji is hemorrhage, shock from left lung and right kidney. The death is homicidal and within 18 hours before postmortem. As per postmortem report (Ex.P/1) the deceased sustained following injuries:-
Diamated wound 2'''' x 0.2'''' x scalp deep over skull frontal ant. Part, c/o + + margins reddish. Scalp tissues are bone injured 2'''' x 2'''' clots.
stab wound 2 cm x 0.4. cm both margins sharp, oozing + obliquely situated over chest (L) side 1'''' above x mydially to (L) nipple directed inward, mydially and downward.
Incised wound 1/2cm x 03.cm, skin deep, clot + hon''z, situated over (L) side of sternum 2'''' below the sternal notan.
Stab wound over (R) plank, both margins and corners, even oozing + directed medially situated vertically 9cm above iliac over est & 11cm lethal to spine.
Incised wound 2 x 1/2 cm, margins smooth, even, clot, over upon part of sciorum, horiz.
Incised wound even margins 1cm x 0.3 cm x skin deep, clot +, at back of mid of neck.
Incised wound 2cm x 0.4 cm x muscle deep, clot +, even margins, over mid spine, oblique.
Stab wound 2cm x 0.4cm oblique, oozing +, at +8 level of spine, directed forward.
Stab wound 2cm x 0.4 cm oozing, margins smooth both corners even x shape, directed forward, situated below inferior angle of (L) scapula, horiz.
Incised wound, 2cm x 0.5 cm muscle deep, clot +, horiz, over mid of (L) scapula.
Injury No. 1 by hard x blunt object. Injury No. 2 to 10 by hard and sharp object. All ante-mortem just before or shortly before death. Injury Nos. 1,3,5,6,7 & 10 simple in nature.
Dr. N.K. Gupta (PW1) in his statement has deposed that injury No. 1 was caused by hard and blunt object, whereas injuries No. 2 to 10 were caused by hard and sharp object. He also stated that injuries No. 1, 3, 5, 6, 7 and 10 were simple in nature. Dr. N.K. Gupta (PW1) gave his opinion and stated that injury No. 1 of deceased can be caused by either weapon (lathi or farsi) and injuries No. 2 to 10 can be caused by any of the objects No. 1 to 5 i.e., knife.
Dr. N.K. Gupta (PW1) in paragraph 6 of the statement has deposed that he examined injured Radheshyam (PW3) and, thereafter, prepared MLC report (Ex.P/2). In reply to query (Ex.P/3).
Ex.P/2 is MLC report of injured Radheshyam (PW3), according to which he sustained the following injuries:
(1) Skin deep abrasion 1/2 x 1/2 cms over occipital region. Advised x-ray.
(2) Tender swelling calf 3" x 3" over (r) calf, Simple. Both by hard and blunt object. Duration 24 Hrs.
In respect of injury No. 1 he advised for X-ray. Injury No. 2 was simple in nature.
In respect of the above injuries of Radheshyam Dr. N.K. Gupta (PW1) has deposed that both the injuries can be caused by farsi or weapon like stick. This witness has further admitted that injury No. 2 of Radheshyam can be caused by fall on the floor.
Dr. N.C. Jhala (PW6), who has examined injured Chainsingh (PW4), has deposed in his statement that Ex.P/28 is his MLC, Ex.P/ 29 is admission ticket and Ex.P/30 is bed ticket. Chainsingh was discharged on 8.11.01. He has sustained fracture of his 11th rib of right chest. Ex.P/31 is his report. X-ray plate is Ex.P/32. He has denied that injuries No. 2, 3, 4 and 5 cannot be caused by fall on the floor. He has deposed that injuries have been caused by hard and blunt object. He has further deposed that fracture of 11th rib is dangerous to life. MLC report of Chainaji (Ex.P/28) reads as under:-
(1) LW 6 x 1 cm scalp deep over Lt frontal region vertically, blood clot present, x-ray skull.
(2) Abrasion over Lt mid clavicle vertical 7 x 1/4 cm, dried scab present.
(3) Cut wound Lt Back of Elbow (mid) 1 x 1/2 cm, subcutaneous deep, blood clot present.
(4) Cut wound Rt chest back vertically on 7 & 8 ribs directed forward and medially Blood clot present. Probing not done (muscle scan). Size 3 x 1/2 cm. X-ray chest.
(5) Cut wound Rt back vertically at lumber region. Size 2 x 1/2 cm Probing not done (muscle scan), blood clot present, x-ray abdomen.
All injuries can be caused by hard & blunt & sharp object and duration about within 12 hours.
Dr. N.C. Jhala (PW6) in paragraph 2 of his statement has deposed that Chainaji was examined by him and as per MLC he has sustained 5 injuries. In respect of injuries No. 1, 4 & 5 he was advised for x-ray. Ex.P/28 is the MLC report. In paragraph 6 he has deposed that there was only one fracture which is of 11th rib. Injury No. 5 is grievous in nature. In paragraph 7 he has deposed that sometimes fracture of ribs becomes dangerous to life, if some other part of the body caused any injury.
Radheshyam (PW3) in paragraph 5 of his statement has deposed that Bhagirath was armed with knife and has caused knife injury on the chest of the deceased, Ramprasad caused knife injury on his back, Bherulal also caused knife injury. As per paragraph 5 of his statement Bhagirath, Ramprasad and Bherulal caused knife injuries to his brother deceased Hemraj on his chest and back. He further deposed that Badri Prasad was armed with farsi caused injury on the head of Chain Singh, while Durga Prasad and Atmaram were armed with knife and they caused knife and farsi injuries to his father Chain Singh. In paragraph 6 he has deposed that Narainsingh and Gokul Prasad were armed with lathi and caused lathi injuries to him. He has also deposed that on the spot Bherulal (PW5), Pappu and Ramesh reached there and they tried to save the life of his brother, but no statement of Pappu and Ramesh was recorded. In paragraph 8 he has deposed that there was dispute regarding installation of Gumti. He has deposed that he installed Gumti over the government land, whereas accused persons were stating that Gumti is on their land and due to the aforesaid reason they caused injuries to deceased Hemraj and his father Chainsingh. In paragraph 12 he has deposed that deceased sustained three injuries on chest, neck and back. In paragraph 21 this witness denied that accused Bhagirath (A/5) sustained any injury on his head. Learned Senior Advocate for the appellants has submitted that the prosecution has failed to explain head injury of accused Bhagirath. This witness in paragraph 27 of his statement has deposed that no Patta in his favour in respect of the land over which the Gumti has been installed. This witness in paragraphs 28, 29 & 30 has deposed that the cause of dispute is in respect of installation of Gumti. In paragraph 31 he has deposed that at the time of incident number of customers were standing on his Gumti; Pappu and Bherulal were also standing there, whereas Bherulal (PW5) in his statement has deposed that at the time of incident no customer was there.
Chainaji (PW4) in paragraph 2 of his statement has deposed that deceased Hemraj was sitting in his Gumti. Accused Sampatbai was abusing him and saying that why he has installed the Gumti. Other accused persons were armed with knife, Dhariya, Farsi and sticks. In paragraph 5 he has not given any detail description about the injuries caused by the accused persons. In paragraph 9 this witness has admitted that house of Ramprasad is behind the Gumti and the distance between Gumti and house is only 5 ft., whereas his house is 100 ft. from the Gumti. He has also admitted that near the Gumti there is house of Gangaram Balai and one government well. In paragraph 14 this witness has deposed that the first injury was caused on his head and, thereafter, he became unconscious. He denied the suggestion that first injury was caused to him and gave an explanation about the injuries caused to Hemraj. In paragraph 15 he has admitted that injuries of Hemraj were caused outside the Gumti and when he became conscious he saw the injuries on the chest and back of deceased Hemraj. He has not stated that any one came there to save the life of Hemraj. He has further deposed that he is not in a position to say about the details of weapons, which were armed by the accused persons and the injuries caused to the complainant party. In paragraph 17 he has deposed that on seeing the accused persons he will be identify them. In paragraph 20 he tried to explain the injuries of accused Bhagirath and stated that during fight he sustained injuries.
Bherulal (PW5), an eyewitness of the incident in paragraph 4 of his statement has deposed that 4 persons namely Ramprasad, Atmaram, Bhagirath and Durgaprasad have caused knife injuries to deceased Hemraj. Accused Narainsingh and Gokul caused injuries to Radheshyam (PW3). Durgaprasad and Ramprasad caused injuries to Chainsingh (PW4). He has further deposed that at the time of incident Kallu Khan, Israr Khan, Ramesh Chandra and Mohan Singh Patidar were present and they witnessed the incident. This witness in paragraph 20 of his cross examination has deposed that on the date of incident the deceased was not taken to Shajapur Hospital. His dead body was brought on the next day. Inquest report was prepared on the next day at about 10-10.30 hours in the morning. He has also stated that when police came in the night at that time he was alone near the dead body and Lalji, Ramesh, Kallu and Israr were not present. Radheshyam has gone to lodge a complaint. In paragraph 27 he has deposed that accused Bhagirath was arrested on 1.11.01 i.e., on the date of incident, whereas as per statement of PW13 accused Bhagirath was arrested on 2.11.01. This omission has been recorded in paragraph 36. He has stated that he in his police statement (Ex.D/4) stated the name of Narainsingh, Gokul and Radheshyam, but he has no reason as to why the same has not been recorded in his police statement. This witness in paragraph 37 of his cross examination stated that all the accused persons have not caused injuries to Radheshyam nor all the accused persons have caused any injury to Chainaji. Only three persons have caused injuries. Paragraph 37 of his statement is relevant, which reads as under:-
In paragraph 39 he has deposed that he had not seen any injury on the head of injured Bhagirath. No one from the nearby place was present on the spot.
Ajay Kumar Verma (PW13) deposed that on 1.11.01 he was on duty at Police Station Shujalpur, where he received the intimation of Crime No. 142/01. After receiving the said information he reached at the place of occurrence. In paragraph 7 he has deposed that accused persons namely Sampatbai, Bhagirath, Narainsingh, Bherulal, Atmaram and Babulal were arrested on 2.11.01, Ex.P/10 to P/15 are their arrest memos. In paragraph 11 he has deposed that accused Bhagirath was sent for medical examination vide requisition Ex.P/42, which contains his signatures at place ''A'' to ''A''. In paragraph 12 he has deposed that Rampeasad and Durgaprasad were arrested on 1.11.01, Ex.P/43 & P/44 are their arrest memos. In paragraph 18 he has deposed that he has not made any entry in daily diary regarding his reaching and leaving the police station. In paragraph 23 he has deposed that in the night there was no arrangement and, therefore, injured Radheshyam (PW3) was medically examined on 2.11.01. This witness in paragraph 24 of his statement has tried to explain the injuries of accused Bhagirath by stating that during fight Bhagirath sustained injuries from the accused persons only. This witness has admitted that he has not made any query regarding injuries of Bhagirath.
Shri Jaisingh, learned Senior Advocate, who is appearing on behalf of the accused persons, has submitted that the learned trial Court has wrongly convicted all the accused persons u/s 302 of the IPC. He has further submitted that as per statement of two injured witnesses and one eyewitness only three persons had caused injuries to the deceased and the trial Court committed an error in convicting all of them. He also submitted that there are material contradictions in the statements of injured witnesses and eyewitness and non explanation of injuries of accused Bhagirath is fatal to the prosecution and prayed for acquittal of the accused persons. In support of the said contention he drew our attention to the following decisions:-
(I) Jadu Yadav and others Vs. State of Bihar,
(II) Ganesh Bhavan Patel and Another Vs. State of Maharashtra,
(III) Bir Singh and Others Vs. State of Uttar Pradesh,
(IV) Lakshmi Singh and Others Vs. State of Bihar,
On the other hand, Shri Deepak Rawal, learned Government Advocate drew our attention to the statements of PW3, PW4 and PW5 and submitted that as per statements of PW3 & PW4 the injuries of deceased Hemraj were caused by accused Bhagirath (A5), Ramprasad (A1) and Bherulal (A2). He also submitted that as per statement of PW5, four persons have caused injuries to the deceased; they are Ramprasad, Babulal, Bhagirath and Durga Prasad. In respect of injuries of injured Radheshyam (PW3) it is submitted that Ramprasad and Gokul caused injuries to him. Similarly, in respect of injuries of injured Chainaji (PW4) it is stated that Badriprasad and Atmaram caused injuries to him. He submitted that all the accused persons were unlawfully assembled and inflicted multiple knife injuries to deceased Hemraj. Thus, the learned trial Court has not committed any legal error in convicting them. He further submitted that injuries of the injured and the deceased were duly explained by PW1 Dr. N.K. Gupta and Dr. N.C. Jhala (PW6). He also submitted that at the time of incident the complainant party was unarmed and, therefore, it cannot be said that in right to defend they have caused injuries to the deceased and two other injured persons nor the said principle will be applicable in the facts and circumstance of the case and prays for dismissal of the appeals.
We have heard the learned counsel for the parties and perused the record.
The question that arises for consideration first is to, in the facts and circumstances of the present case, whether it could be said that accused persons satisfied the requirement of Section 147 of IPC.
As per Section 141 of IPC, it is clear that it is not a mere assemblage of the number of persons stated therein, but the object with which the persons compose that assembly that determines whether the assembly is unlawful. There may be cases where large number of people gather but they do not gather for any of the purposes stated in Section 141. There are also cases where innocent persons get mixed up in the group without subscribing to the object of the other member of the assembly and from their mere presence it cannot be inferred that they have become the members of such assembly. In a situation like this, unless there are reasons to indicate that the assembly is of the members to commit any mischief or criminal trespass or within the meaning of both clause, third and fourth, to use criminal force or show of criminal force to any person or to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way and the other matters stated in that clause, innocent persons cannot be attached culpability. Thus, the Court has to be discerning in matters where large number of persons are involved and the prosecution story merely suggests that only a few participated in the incident. By mere presence culpability cannot be attached to the persons who are present.
With the above provision of law in mind, we proceed to analyze the evidence on record. The statements of Radheyshyam (PW3) and Chainji (PW4) are more or less in the same lines in the evidence. They have stated in their deposition that though the accused persons surrounded the deceased Hemraj, but Ramprasad, Bherulal and Bhagirath caused knife injuries to him. Bherulal (PW5) contradicted from the above version of the PW3 and PW4 and deposed that four persons inflicted knife injuries to deceased and they are Ramprasad, Aatmaram, Bhagirath and Durgaprasad. He has not stated that Bherulal also caused injuries to the deceased, whereas PW3 and PW4 are injured eyewitnesses and they in their statements have not made any allegations against Atmaram and Durgaprasad. We are, therefore, of the view that so far as the ocular account of the incident has been rendered by the eye witness viz (PW3) Badrilal, (PW4) Chain Singh @ Chainji and (PW5) Bherulal, it is clearly proves that the persons named Ramprasad, Bhagirath and Bherulal duly participated in the incident and caused injuries to deceased - Hemraj. It is, therefore, clear that the persons, who actually caused injuries to deceased - Hemraj were liable for the sentence.
The main dispute is between accused Ramprasad and his family and complainant party in respect of installation of Gumti. Accused Sampatbai is mother of Atmaram and Ramprasad. She was residing along with her two sons Atmaram and Ramprasad. Rest of the accused persons are residing separately. The defence of the accused was that Gumti was installed over the land of Ramprasad. No Patta was granted in favour of deceased Hemraj or in favour of the complainant party and they failed to prove their ownership over the land for which Gumti was installed. This fact has been admitted by the injured eyewitness Radheyshyam (PW3) in para 30 of his cross examination. In para 31 he has deposed that at the time of occurrence number of customers were standing at Gumti, but Bherulal (PW5), denied this fact and has deposed that no body was standing at the time of occurrence. Another injured witness Chainaji (PW4) in para 2 of his statement has deposed that Gumti of grocery shop was installed by the deceased one day prior to the date of occurrence. In para 14, this witness stated that he sustained head injury and thereafter, he became unconscious. In para 15, he has deposed that he cannot say and specify the weapons, which were armed by the accused persons. In para 21 he admitted that accused Bhagirath, sustained head injury on his head and blood was oozing from the said injury.
However, the contention of the State counsel is that in a situation in like this, where a large number of persons had assembled with various arms including swords, Farsi and Lathis, when it is established beyond any shadow of doubt that some of them caused injuries to which the deceased succumbed, others would become liable under the provisions of Section 149 of the IPC, non-participation notwithstanding.
Though it is true that once it is established that in fulfillment of the object of an unlawful assembly if an offence is committed which the members knew was likely, the members of the assembly would become liable for the said offence but first and foremost requirement in such a case is that there should be an unlawful assembly. As observed by us above, it was in a public place that the accused persons have assembled. There is no evidence of the prosecution to suggest that while they were sitting together, they had a mission in their mind or that it was with some object in their mind that they had assembled there. There is also no suggestion that the accused had been lying in wait to spring at them. Under these circumstances, no culpability can be attached to the presence of the accused or at least, initial presence of the accused. Though the witnesses have tried to impute to them the intention by saying that all the accused participated in the crime, but the fact that only a few accused participated and nothing has been said about the accused persons nor any suggestion has been made to show that the other accused persons prevented the escape of the persons being assaulted, we find that apart from the active role ascribed to the accused persons named by us hereinabove, there is no evidence, not an iota, to show participation of the remaining accused. Under these circumstances, notwithstanding a very large number, we are unable to accept that the assembly of the accused persons was for any of the reasons enumerated in Section 141 of the IPC. Thus, constructive liability with the aid of Section 149 of the IPC will not be attracted in the present case.
If the persons, who had not participated had not been the members of an unlawful assembly, they cannot be convicted for offence under Sections 147 and 148 of IPC. During trial Narayan Singh, Babulal and Gokulprasad were in jail for the period of 53 days, 106 days and 45 days respectively. They are on bail. During trial Badriprasad, Durgaprasad and Atmaram were in jail and they have completed 373 days, 371 days and 379 days respectively. After conviction they are in jail for a period from 09.01.2003. They have completed almost more than ten years. So far as accused Ramprasad, Bherulal and Bhagirath are concerned, the evidence of PW1 and PW2 are clearly and to the effect that all the three accused used knife and inflicted multiple injuries to deceased - Hemraj. It cannot be said that the statements of PW1, PW2 and PW3 are not supported by medical evidence. In view of the aforesaid, the decision cited by the learned Senior Advocate for the appellants in the case of Jadu Yadav & Ors. v/s. State of Bihar (Supra) will not be applicable in the present facts and circumstances of the case. In the case of Bir Singh & Ors v/s. State of UP (Supra) all the eye witnesses were examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the Apex Court rightly held that the evidence of the eyewitnesses suffers from various infirmity and could not be relied upon.
Here in the case in hand, the injuries of the accused has been explained by stating that when they were causing injuries to the deceased, one of the appellant caused injuries to accused and, therefore, the decision of Bir Singh & Ors v/s. State of UP (Supra) will not be applicable in the present case.
From the evidence on record, no inference can be drawn that prosecution has suppressed genesis and origin of occurrence and has thus, not presented the true version. The Apex Court in the case of Lakshmi Singh & Ors. v/s State of Bihar (Supra), held that the omission on part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version, which competes in probability with that of the prosecution. Here in the present case, there is no evidence that an eyewitnesses and other witnesses were having inimical relations with the appellants. The dispute is in respect of installation of hut (Gumti), which was installed one day prior to the incident and, therefore, they will not get any help from the judgment of Lakshmi Singh & Ors. v/s State of Bihar (Supra).
From the evidence as discussed herein above, only three persons have caused fatal injuries to deceased Hemraj and they are Bhagirath, Ramprasad and Bherulal. Other accused persons namely Narayansingh, Babbulal, Durgaprsad, Badriprasad, Gokul, Sampat bai and Atmaram have not participated in any way in committing the murder of deceased Hemraj.
In the result, the appellants accused Narayansingh, Babulal, Durgaprsad, Badriprasad, Gokul, Sampat bai and Atmaram are given the benefit of doubt and they are acquitted and their conviction and sentence are set aside. They be set at liberty, if not required in any other offence. Appellants Narayansingh, Baboolal, Gokul and Sampat-bai, are on bail. Their bail bonds are hereby discharged. However, the conviction and sentence under Sections 148, 302/149, 326/149 & 323/149 of the IPC awarded by the court below against accused appellants Bhagirath, Ramprasad and Bherulal are maintained. In the result, both the appeals are allowed in part to the extent indicated herein above.