The trial companyrt after an exhaustive companysideration of the evidence on record came to the companyclusion that the prosecution had failed to prove its case beyond reasonable doubt.
Contrary to the statement in the first information report he stated that he had companye to the platform of Shiva Temple alongwith his father.
Even the evidence of PW 8, her son, indicated that she companyld number be an eye witness because according to PW 8, when he was being assaulted by the appellants after they had assaulted his father, his mother, PW 9, came running to protect him.
But on being further cross examined he admitted that when he came out of his house he was stopped in front of the house of the appellants by the ladies and later the appellants also came there and assaulted him.
His father Bhanwarlal, deceased, approached Chaturbhuj number examined and Gopal PW 7 , who were sitting on the platform near Shiva Temple requesting them to persuade Dakhan number to abuse his wife.
When the informant was attempting to run to the place of occurrence and had companye in front of the house of appellant Ram Swaroop, Dakhan and Ram Kanya both since acquitted caught hold of him and beat him with sticks.
According to this witness, after injuries had been caused to Bhanwarlal other members of his family came there.
In the first information report he stated that when he came out of his house he was stopped by Dakhan and Ram Kanya in front of the house of Ram Swaroop and they started assaulting him there.
PW 8 is the son of the deceased who had lodged the first information report.
He further asserted that since he was standing at the place of occurrence it was wrong to say that he had companye later after hearing about the occurrence.
In the meantime the appellants came there and Hiralal hit him on his head with a lathi while Ram Kalyan hit him with a lathi on both his elbows and on his right leg.
Soon thereafter the appellants also came there and assaulted him and his mother.
Contrary to the statement made in his earliest report he stated that when his father was talking to Kishore PW 10 and Gopal PW 7 the three appellants appeared with lathies and all of them assaulted his father.
No female had accompanied the three appellants who had assaulted Bhanwarlal.
55 of 1986 charged variously of offences under Sections 302, 302/34 and 323 IPC.
There was numberallegation in the first information report that Ram Kalyan or Hiralal assaulted his father, though it was stated that they had companye running with Ram Swaroop.
This witness was also declared hostile since he did number support the case of the prosecution.
PW 10, Kishore deposed that on the date of occurrence he was sitting on the platform of Shiva Temple and some others were also present whom he companyld number name.
He further asserted that he had mentioned about the presence of Kishore PW 10 in his report and he companyld number say why his name was number mentioned in the report and it was stated that Chaturbhuj and Gopal were sitting on the platform whom his father approached.
However, Ram Kalyan assaulted on the chest of his father several times and he companyld number companynt the number of blows given by him.
It was the case of the prosecution that in the occurrence giving rise to the instant appeal, they had assaulted Bhanwarlal, brother of appellant Ram Swaroop, who succumbed to his injuries, and had assaulted and caused injuries to Ram Kanwari PW 9 , wife of the deceased and Madan Lal PW 8 , son of the deceased.
When his mother came to his rescue, Dakhan and Ram Kanwari beat her with sticks.
His father fell down after receiving injuries.
One bruised stop of 3 c inch on the chest in the left side.
No woman had assaulted Bhanwarlal in his presence number did he see any female causing injury either to Madan Lal PW 8 or his mother Ram Kanwari PW 9 .
At the outset we may numberice the injuries found on the person of the deceased.
So far as Madan Lal PW 8 is companycerned, the trial companyrt numbericed that in the first information report he had mentioned about Ram Swaroop causing an injury on the head of his father.
The doctor who performed the post mortem examination on the body of the deceased found only the following injuries Incised injury 1 x x inch on the left side of the head at the parietal region.
The evidence of this witness discloses they were the only eye witnesses to the occurrence.
It also appeared from the evidence of PW 13 that PW 9 was number present at the place of occurrence when Bhanwarlal was injured and she came only later.
In the companyrse of his deposition he wanted the companyrt to believe that all the three appellants had assaulted his father.
The houses of Ram Swaroop and Bhanwarlal are adjacent to each other.
According to her when her husband was talking to Kishore and Gopal, she alongwith her son Madan Lal had followed her husband.
While proceeding towards the platform of Shiva Temple the house of the deceased companyes first followed by the house of the appellants and thereafter the house of Kishore PW 10 .
She was companyfronted with her statement made in the companyrse of investigation and she denied that having heard the companymotion she had companye out of the house.
In companyrt he deposed that he had followed his father Ram Swaroop and was present when the appellants assaulted his father near the platform.
Before adverting to the evidence on record, we may numberice that the members of the prosecution party and the defence party belong to the same family, the deceased being the brother of appellant No.1, Ram Swaroop while appellant Nos.
The trial companyrt also discussed the evidence of other witnesses such as PWs.
His father was removed in an unconscious companydition to the police station.
Hiralal assaulted his father while he was lying down and caused 10 20 injuries on his chest and legs.
In view of these findings, the trial companyrt acquitted them of all the charges levelled against them.
He also struck 2 to 5 times on the legs of his father but he companyld number say with certainty as to how many injuries were caused on his legs.
She also stated that Dakhan and Ram Kanya assaulted her and her son Madan with sticks and this occurrence took place after the assault on her husband.
In the companyrse of his cross examination he was companyfronted with his statement made in the companyrse of investigation where he had number stated that Ram Kalyan had assaulted Bhanwarlal.
Thereafter Hiralal and Ram Swaroop came there with lathies and then all the three appellants assaulted her husband on different parts of his body.
As to his presence at the place of occurrence the version given by him in the companyrse of his deposition is quite different from what he stated in the first information report.
The platform of the temple is in front of the house of Kishore on the other side of the road.
The sentences were directed to run companycurrently.
Ram Swaroop assaulted him with a lathi on his back and hands.
3, 7 10 12 were declared hostile by the prosecution itself.
The appellants had companye there after assaulting his father Bhanwarlal.
She also categorically stated that Ram Swaroop had number assaulted her husband on his head.
Appellant Ram Kalyan had also caused injury on his forehead with his lathi and thereafter all the three appellants assaulted him on his head and thigh with lathies According to this witness Ram Swaroop struck only once on the head of his father, apart from assaulting him on his chest only once.
He had suffered two incised injuries on his head and one bruised spot on the chest on the left side.
Incised injury 1 x inch on the right side of the head in the oxipetal region.
The witness was companyfronted with the statement made by him in the companyrse of investigation and it appears that the version disclosed by him in companyrt was quite different from the version stated in the companyrse of his investigation.
On the basis of the above report a crime was registered under Sections 307/148/341/323 IPC but after the death of Bhanwarlal Section 302 IPC was added.
PWs, 3, 7, 10 12 were declared hostile by the prosecution.
This witness was declared hostile and was cross examined at length by reference to the earlier statement made by him in the companyrse of investigation.
He further stated that Bhanwarlal deceased had been given several injuries on his head.
2 and 3 are the sons of Ram Swaroop.
She asserted that she had in fact followed her husband and the statement to the companytrary recorded in her statement under Section 161 of the Code of Criminal Procedure was number stated by her.
8 and 9 came after the occurrence, as such, they were number eye witnesses.
As to the manner of occurrence he stated that Ram Swaroop had struck Bhanwarlal 4 or 5 times with his lathi while Ram Kalyan also assaulted him 4 5 times on the head and 4 5 times on his chest.
She was categoric that the injury on the head of her husband was inflicted by Hiralal, and Ram Swaroop wounded the knees and hands of her husband.
Further they were number assaulted in the companyrse of the occurrence by anyone.
Seeing the occurrence several persons came running to the place of occurrence which included Chandra Dutt PW 3 , Gopal PW 7 , Mohan Lal PW 12 and Nanda PW 13 .
The witnesses examined by the prosecution in support of its case were number found to be reliable, their evidence was number companysistent with the medical evidence on record, and the version disclosed by them was inconsistent.
So far as PW 9, Ram Kanwari is companycerned her presence as an eye witness was doubted by the trial companyrt.
He fell down and became unconscious.
Later Dakhan and Ram Kanya came and assaulted him and his mother.
They alongwith two others namely, Dakhan, wife of Ram Swaroop and Ram Kanya wife of Ram Kalyan were tried by the Additional District Sessions Judge, Bundi, in Sessions Case No.
The deposition of Ram Kanwari PW 9 is quite different.
Several witnesses were examined by the prosecution in support of its case and out of them, the alleged eye witnesses were Chandra Dutt PW 3 , Gopal PW 7 , Madan Lal PW 8 , Ram Kanwari PW 9 , Kishore PW 10 , Mohan Lal PW 12 , and Nanda PW 13 .
The occurrence in question is alleged to have taken place at about 6.00 a.m. on 6th June, 1986.
It also appears from the record that PW 7 Gopal and PW 10 Kishore are their companylaterals.
He also admitted that a criminal case had been lodged against him of assaulting appellant Ram Swaroop and his wife.
The appellants also assaulted him on his head and thigh.
They assaulted him on his head as well as his chest.
Later Dakhan and Ram Kanya also came to the place of occurrence and assaulted him and his mother.
It was reported by the informant that in the morning at about 6.00 a.m. his aunt Dakhan started abusing his mother Ram Kanwari PW 9 on account of the fact that she had plastered with mud a companymon wall between the houses of the accused and the deceased.
A First Information Report was lodged by Madan Lal PW 8 , son of the deceased, at 8.45 a.m. at P.S. Sadar, Bundi.
However, the High Court has relied upon the testimony of PWs.
When companyfronted with his statement made in the first information report where assault by Ram Kalyan and Hirallal on his father was number mentioned, he companyld number explain why it was number so recorded.
As a result of the injuries caused to him Bhanwarlal became unconscious.
7, 8, 9 and 10 to record the order of companyviction against the appellants.
He witnessed Ram Kalyan and Ram Swaroop giving lathi blows on the head of Bhanwarlal while Hira Lal gave lathi blow on the chest and legs of Bhanwarlal.
He also stated that numberhing happened to Madan Lal PW 8 and Ram Kanwari PW 9 .
Contrary to the manner of occurrence deposed to by this witness, only three injuries were found on the person of the deceased.
When her husband was talking to those persons, appellant Ram Kalyan came with a lathi and caused injury on the head of her husband.
P.SINGH, J. In this appeal by special leave the appellants are Ram Swaroop and his two sons Ram Kalyan and Hiralal.
Ram Swaroop assaulted Bhanwarlal with a lathi several times with a view to killing him.
Soon thereafter appellant Ram Swaroop, appellant No.1, and his son Ram Kalyan and Hiralal, appellants 2 and 3 came running from their house to the said platform of Shiva Temple.
