JUDGMENT [ENTITY], J.
1. [CASE NUMBER] 61ed by [ENTITY] and [ENTITY] and D B. [CASE NUMBER] preferred by the State of Rajasthan arise out of one and the same judgment of the learned Sessions Judge, Bikaner, dated April 10, 1973, by which [ENTITY] and [ENTITY] sons of [ENTITY] were convicted under [SECTION] and [SECTION] [ACT] respectively and each of them was sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to further suffer rigorous imprisonment for six months while [ENTITY], [ENTITY] son of [ENTITY] & [ENTITY] were given benefit of doubt and were acquitted of all the charges claimed against them.
2. The incident that led to the aforcesaid five accused persons may be briefly described as follows:- On May 17, 1971, at about 3 p.m [ENTITY] son of [ENTITY], deceased, followed by [ENTITY] and [ENTITY] was returning from the house of his father to his own house which is situated towards the bus-stand of village Rashisar Bada Bas. Deceased [ENTITY] also was coming from the side of village well known as 'Pipalia well' for going to his house. When the deceased entered the main gate of [ENTITY], [ENTITY] son of [ENTITY], came out of his house with a '[ENTITY]' i.e. spear and cried aloud 'The enemy has come, kill him On hearing his cry [ENTITY] appellant came out of his house having armed himself with a spear and the other three co-accused namely, [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] (who have been acquitted by the trial court) also came out there from behind the Chowki of [ENTITY] having spears in their hands and raising an out cry that '[ENTITY] enemy has come, kill him. Out of these accused persons [ENTITY] son of [ENTITY] was the first person who inflicted a blow on the back of [ENTITY], deceased, from behind Thereafter [ENTITY], struck a spear blow on the abdomen of [ENTITY] from the front side As a result of this blow, intestines of [ENTITY] came out and the wound began to bleed profusely. Then [ENTITY] son of [ENTITY] accused dealt a spear blow on the right arm pit of [ENTITY] while Man struck a blow with his spear on his left palm. [ENTITY] accused also inflicted a blow with his spear on the left hand thumb of the deceased. On seeing [ENTITY] being beaten, [ENTITY] and [ENTITY] raised a hue and cry, such as, 'Minakh Mare re Minakh Mare re', man is tilled, man is killed. On hearing these cries, all the accused persons disappeared from the place of occurrence. Thereafter, [ENTITY], [ENTITY], and [ENTITY]'s son [ENTITY] came to the place of occurrence, where the deceased was lying on the ground. The deceased asked his son to remove him immediately to the hospital or to police station. By that time [ENTITY] brought his bullock cart and deceased was taken in that cart to Rashisar Dispensary but before reaching the Dispensary, he succumbed to his injuries.
3. A report of this incident was lodged with the police at police station, Deshnokh, by [ENTITY] son of the deceased the very day at about 4 30 p. m, The police registered a criminal case under [SECTION], [SECTION] and [SECTION], [ACT] on the basis of the report made by [ENTITY] and made the usual investigation into the matter. [ENTITY], Station House Officer, Deshnckli, rushed to village Rashisar and inspected the dead body and prepared a Panchnama Ex. P 6 over it. From there he reached the place of occurrence and prepared a site plan and a site inspection memo at the instance of [ENTITY] complainant. When he returned to police station, Deshnokh, he found [ENTITY] son of [ENTITY] and [ENTITY] accused, who were brought there. He arrested these accused persons and could not make further investigation on May 19 and 20,1971, as he was busy with the investigation of some other murder case. In the night of May 20, 1971, he arrested [ENTITY] and [ENTITY] accused. After his arrest [ENTITY] son of [ENTITY] accused gave the Station House Officer an information on May 22, 1971, that he had concealed one spear, having a bamboo handle, inside the bedding lying in his residential house. The Station House Officer recorded the above information in memo Ex.P. 16 and recovered the spear from the house of [ENTITY] son of [ENTITY] accused at the latter's instance and in consequence of his above information, the spear was seized and sealed properly in the presence of Motbirs. [ENTITY] accused also supplied an information to the Station House Officer while in police custody which led to the recovery of a spear having a bamboo handle from his house wherein it was lying concealed in a heap of grass. Likewise on May 22, 1971, one spear was recovered from the residential house of [ENTITY] also at the latter's instance and in pursuance of his information recorded by the Station House Officer under [SECTION] of the [ACT] in a memo Ex. P. 18. On May 23,1971, [ENTITY] accused also furnished an information to the Station House Officer while in police custody that he had kept one spear having a bamboo handle inside his residential house The above information was recorded by the Station House Officer in a memo Ex. P. 19. In pursuance of this information, the Station House Officer recovered spear from the house of [ENTITY] accused at the latter's instance. [ENTITY] son of [ENTITY] accused had absconded. So proceedings under [SECTION] and [SECTION], [ACT] were taken against him. He, however, surrendered himself in the court of the Munsiff Magistrate, Bikaner, on July 21, 1971 and thereafter was taken into police custody. [ENTITY] son of [ENTITY] accused also gave the Station House Officer an information while in police custody which led to the recovery of a spear from his field wherein it was lying concealed in the heap of grass known as 'Chads'. The spears so recovered were seized and sealed by the Station House Officer in the presence of Motbirs. The dead body of [ENTITY] was taken to the Primary Health Centre, Deshnokh, where post mortem examination was performed upon it by Dr. [ENTITY] on May 18, 1971. The Doctor examined the dead body and found the following external injuries on it.
1. penetrating wound 1.6" x 0.7" deep to abdominal cavity. A part of small intestines full of blood protruding out from the wound, edges are clean cut angles at both extremities of wound are sharp; grievous in nature by sharp weapon. Situation: : 3 2" from umbilicus above and 1" laterally from medial line on right side of abdomen;
2. incised wound .8" x .2" x .3" deep above inverts, right anterior axially fold, simple in nature by sharp weapon;
3. incised wounds (i) 1.6" x .6" x .6" x .4"; (ii) 1.5" x .3" x .4" distally upwards middle palmer surface of left hand, left of the second, third and fourth meta corpal bones fractured, grievous in nature, by sharp weapon;
4. incised wound 1.2" x .4" x .4" deep laterally down wards; right side of back 12 5" below from seventh cervical spine and 3 8" laterally from vertebral column, simple in nature by sharp weapon ;
5. incised wound 1" x .2" x .2" deep medially upward. On dorsum of left hand below thumb, simple by nature, by sharp weapon.
Upon dissection of the dead body, the Doctor found that the liver was of dark checolate colour and soft having clean out edges wound 1.4" long, .4" wide, .5" deep from right lobe of liver, medially downwards. The angles of both extremities of the wound were sharp. In the opinion of the Doctor, death of [ENTITY] occurred due to shock and haemorrhage caused by multiple injuries and the injury to liver and injury No. 1 was sufficient in the ordinary course of nature to cause his death. The Doctor further opined that the injuries could be caused by spears Exs 1 to 5 recovered from the possession of the accused persons
4. The Station House Officer collected further evidence in the case and eventually filed a charge-sheet against all the five accused in the court of the Additional Munsiff Magistrate, Bikaner, under [SECTION], [SECTION], [ACT]. The learned Magistrate conducted an Inquiry, preparatory to commitment and, upon, finding a prima facie case exclusively triable by the court of Sessions committed the accused to the court of the Sessions Judge, Bikaner, for trial for the aforesaid offences. The Sessions Judge found the accused [ENTITY] and [ENTITY] son of [ENTITY] guilty of the offences punishable under [SECTION] and [SECTION], [ACT] respectively and sentenced each of them to imprisonment for life and to pay a fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for six months. He, however, acquitted [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] of all the offences with which they were charged. Aggrieved by their conviction and sentence, [ENTITY] and [ENTITY] have preferred an appeal. The State also filed an appeal against the acquittal of the three accused persons.
5. We have carefully perused the record and heard Mr. [ENTITY], learned Counsel for [ENTITY] and [ENTITY] son of [ENTITY]s and Mr. [ENTITY], Public Prosecutor for the State and Mr. [ENTITY] for [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] respondents. As common questions of facts and law are involved in both the appeals and as they arise out of one and the same judgment of the Sessions Judge, they are disposed of together by our one judgment.
6. First we take-up the appeal filed by [ENTITY] and [ENTITY] son of [ENTITY] against their conviction. It has been contended by Mr. [ENTITY], learned Counsel for these two appellants, that there is no independent evidence in this case & the alleged eye-witnesses, being admittedly inimical to the accused and belonging to the party of the deceased, have roped in innocent persons out of personal animosity and the trial Judge committed an error in placing implicit reliance on their sweeping statements containing wholesome implications. It was further urged that the prosecution has utterly failed to bring guilt home to the appellants beyond reasonable shadow of doubt but even in the absence of any positive evidence the trial Judge convicted both the appellants for the offence of murder, although the role ascribed to [ENTITY] son of [ENTITY] in the assault on the deceased was negatived by the medical evidence and the injury caused by [ENTITY] to the body of the deceased appeared to have been inflicted in exercise of his right of private defence of person. In support of his above contentions Mr. [ENTITY] relied upon [PRECEDENT], [PRECEDENT] , [PRECEDENT], Ram [ENTITY] v. State of Punjab , and Ro. [PRECEDENT].
7. The Public Prosecutor, on the other hand, contended that in cases arising out of acute faction, it is difficult to adduce independent evidence because persons having no connection with either faction do not dare to come forward as witnesses for fear of incurring displeasure of the other party. According to him in such cases evidence should be scrutinised with utmost care and caution and the Sessions Judge, while doing so, has rightly come to a conclusion that the two appellants were responsible for causing the death of [ENTITY] and so there is no justification for upsetting the findings given by him as to their guilt, The Public Prosecutor further argued that there is no conflict between the evidence of the eye-witnesses and the medical evidence in regard to the role played by [ENTITY] son of [ENTITY] in the commission of the assault & there are no such facts and circumstances as may lead to a legitimate inference that the assault was made by [ENTITY] appellant in exercise of his right of private defence of person.
8. We have carefully considered the rival contentions. The first question that arises for determination is whether [ENTITY] son of [ENTITY] had participated in the assault made on the deceased and whether he was responsible for inflicting a blow on the back of the deceased with a spear from behind as alleged by the eye-witnesses. For decision of this question, it is necessary to scrutinise the evidence of the eye-witnesses and the Doctor in the light of the criticism directed against them by the learned Counsel for the appellants. [ENTITY], PW 1, stated in his deposition at the trial that at the sight of the deceased, [ENTITY] son of [ENTITY] came out of his house having a spear in his hand and crying loud 'enemy has come, kill him' At his call, [ENTITY] & the other three accused, namely, [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] came there with spears in their hands and blocked the passage of the deceased. Then [ENTITY] son of [ENTITY] struck blow on the right side of the back of [ENTITY] with a spear. The above statement of [ENTITY] finds corroboration from the testimonies of the other eye-witnesses, namely, [ENTITY], PW2 and [ENTITY], PW 4. No doubt, Dr. [ENTITY], who performed post mortem examination over the dead body of [ENTITY], deceased, found an incised wound 12" x 4" x 4" deep laterally down wards on the right side of the back of the deceased 12.5" below from seven curvical spine and 3.8 laterally from vertebral column, but when cross-examined about this injury No. 4 and injury No. 1, he admitted that if the stomach of the deceased was hit with full force by spear Ex. A.1, (which was recovered from the possession of [ENTITY]) then penetrating wound, i.e. injury No. 1 in the abdominal cavity and the incised wound injury No. 4, mentioned above, on the right side of back, might have been caused by the single blow, It will not be out of place to mention that all the three eye-wit-nesses have stated in their depositions that [ENTITY] was the author of injury No. 1 and that he inflicted this injury on the abdominal region of the deceased with the spear Ex. A. 1. [ENTITY] appellant was alleged to have caused injury No. 4 on the right side of the back of the deceased with spear Article 2 The Doctor definitely opined that spear Ex.A.2 and spear Ex, A. 4 were not blunt but were pointed sharp weapon & if blows were inflicted with spears ExA, 2 & Ex. A 4 from their pointed side with full force, they would have caused punctured wound and not incised wound on the body of the deceased. Hence, from the evidence of the Doctor it is highly doubtful whether injury No. 4 upon the right side of the back of the deceased was caused by [ENTITY] son of [ENTITY] with spear Ex. A 2. In view of the above opinion of the Doctor, the evidence of the eye-witnesses that [ENTITY] son of [ENTITY] gave a thrusting blow from behind to the right side of the back of the deceased with spear Ex. A 2 cannot be safely held to be worthy of credence, especially when the testimony of the eye-witnesses is factious Consequently, we are of the view that the prosecution could not prove beyond reasonable doubt that [ENTITY] son of [ENTITY] participated in the assault made on the deceased and caused an injury to the right side of his back with a spear. It is possible, as observed by the Doctor, that injury No. 1, i.e. penetrating wound on the abdominal cavity of the deceased and injury No. 4, i.e. incised wound on the right side of his back were two. wounds, i.e. one of entry and the other of exit caused by one single blow with his spear such as Ex A. 1 and [ENTITY] son of [ENTITY] was falsely implicated in the commission of the assault on the deceased.
9. Now we take up the case of [ENTITY], Ram appellant. There is the evidence of three eye-witnesses against him that he came in front of the deceased and struck a blow with his spear on. the latter's abdominal region. The evidence of the eye-witnesses finds corroboration from the medical evidence. Dr. [ENTITY], PW 5, upon post-mortem examination found a penetrating wound 16 x 0.7" deep on the abdominal cavity of the deceased, As a result of this blow a part of small intestines full of gases tinned with blood protruded out from the wound. The edges of the wound were clean cut angles at both extremities thereof Exact part of the body on which this wound was inflicted was 3.2" from umbilicus above and 1" laterally from the medical line on the right side of the abdomen. This injury was designated as grievous by the Doctor and was, in his opinion, sufficient to cause death of [ENTITY]. The Doctor further opined that this injury could be caused by a [ENTITY] Ex A .1, which was recovered from the house of [ENTITY] at his instance and in consequence of his information recorded under [SECTION] of [ACT]. The eye-witnesses also deposed that [ENTITY] had [ENTITY] Ex A 1 in his hand at the time of committing the assault on the deceased and that he used it wish full force in causing the aforesaid injury to the abdominal cavity. Mr. [ENTITY], learned Counsel for this appellant, vehemently contended before us that no reliance can be placed on the evidence of these 3 eye-witnesses who were admittedly on inimical terms with {his appellant and who were closely related to the murdered man. He further argued that they have roped in innocent persons out of personal animosity with a view to further the interests of the party of the deceased, to which they belonged. According to him, the prosecution could adduce evidence of persons unconnected with either faction, because the incident occurred at a place which was surrounded by the houses of so many persons. The above contentions have no force. It is no doubt true that all the witneses essential to the unfolding of the narrative must be examined by the prosecution, but when there are no more witnesses available, it cannot be safely held that the evidence of the eyewitnesses, who have been produced) should be discarded. In the instant case, there is nothing on the record to show that besides these three witnesses, there were other persons of the locality who had eye-witnesses the occurrence & whose evidence was essential to the unfolding of the prosecution story. Hence, the contention of Mr. [ENTITY], learned Counsel for the appellant, that independent eye-witnesses could be produced in this case is not tenable. Likewise, the relationship of the eye-witnesses produced in this case to the murdered man is no ground for disbelieving their evidence if it is otherwise found reliable against [ENTITY] appellant. All that is required in cases arising out of acute factions is that the court should scrutinise the evidence of the eye-witnesses with extraordinary care and, if, upon close scrutiny, the evidence is found to have a ring of truth qua an accused, it can be accepted and acted upon in convicting him. In the instant case, we have scrutinised the evidence of three eye-witnesses with utmost care and caution and, upon scrutiny, have found it trust -worthy against [ENTITY] appellant, especially when it finds support from the medical evidence as indicated above. There are no material discrepancies in the statements of three eye witnesses relating to the part played by [ENTITY] appellant in the commission of the crime and the learned Counsel for the appellant could not show anything inherently improbable or unreliable in their evidence.
10. [ENTITY] in his statement taken down under [SECTION], CrP2 set up a plea of right of private defence of person. According to his plea, he was going to his house through a Jane that is situated in front of the house of [ENTITY]. When he came to the court yard of [ENTITY] for going to his house, he saw [ENTITY] deceased standing in the court yard having a appear Ex. A. 4 in his band. On seeing him, the deceased cried that he would not spare him. Then the deceased inflicted a blow with his spear on his left shoulder. As a result of the blow, blood came out of the wound. [ENTITY] appellant further stated that he thought at that time that if he made an attempt to run away, the deceased would thrust his spear on his back from behind and so in order to save his life, he dealt, a blow on the body of [ENTITY] with a spear as a result of which [ENTITY] fell down. Meanwhile [ENTITY],. [ENTITY] and [ENTITY] came there and asked him and the deceased not to fight. [ENTITY] further pleaded: that he showed the injury sustained by him to the Station House Officer, but he was not sent for medical examination, nor was he produced before a Magistrate for ten days. During this period, when his injury was healed up, he was sent to judicial custody. The above plea set-up by [ENTITY] appellant does not appear to be plausible [ENTITY], PW 6, arrested [ENTITY] vide memo of arrest Ex.P. 14. He categorically denied in his statement that at the time of arrest [ENTITY] had an injury on his right shoulder and that his shirt was found cut and blood stained at the place where the injury was alleged to have been received. In the arrest memo also, there is no mention of any injury on the body of [ENTITY] at the time of his arrest. Had there been any injury on his right shoulder with a spear, [ENTITY], Station House Officer, would have got him medically examined in the normal course. There is nothing on the record to show that [ENTITY] was inimical to this appellant on any score. Apart from this, it docs not transpire from the prosecution evidence that the deceased had a [ENTITY] in his hand at the time when the assault was made upon him. Consequently, we have no material on the record to justify a conclusion that the deceased first attacked [ENTITY] appellant with a spear and thereafter the appellant in exercise of his right of private defence of person inflicted a blow on the abdominal cavity of the deceased with a spear to save his life. Hence, upon careful scrutiny of the entire evidence, We are satisfied that the prosecution has succeeded in proving the guilt of [ENTITY] appellant beyond reasonable doubt As the intended injury caused to the abdominal cavity of the deceased by [ENTITY] was sufficient in the ordinary course of nature to cause his death, the trial Judge committed no error in convicting him of the offence of murder punishable under [SECTION], [ACT].
11. Now we take up the appeal filed by the State of Rajasthan against the acquittal of [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY]. It has been contended by the learned Public Prosecutor that the offence of murder is proved against these three respondents and the findings of acquittal given by the learned Sessions Judge are prima facie erroneous, because the three eye-witnesses clearly stated in their depositions that these three respondents also participated in the assault made on the deceased at the time and place alleged by the prosecution and that their evidence is amply corroborated by Dr. [ENTITY], PW 5, who found incised wounds on the axillary fold, on the middle palmer surface of left hand, and on dorsum of left hand below thumb. The above contention, in our opinion, is devoid of substance. It is no doubt true that three eye-witnesses stated in their depositions that when [ENTITY] deceased raised his hands to ward off the blows, [ENTITY] son of [ENTITY] dealt a blow with his spear Ex A 3 on the right anterior axillary fold of the deceased, [ENTITY] struck a blow with his spear Ex. A. 5 on his left palm and [ENTITY] also gave him a blow with his spear Ex A. 4 which fell on his left thumb. These witnesses further stated that these three respondents caught hold of their spears with both hands and used them with full force. The evidence of these eye-witnesses so far as it relates to three respondents is in conflict with the medical evidence in as much as that except a penetrating wounds to the abdominal cavity, no punctured or penetrating wound was found on the dead body of [ENTITY] at the time of postmortem examination. The injuries alleged to have been caused by these three respondents were incised wounds Nos. 2, 3 and 5 which could not possibly be caused by thrusting the spears. Dr. [ENTITY] stated in his cross-examination on seeing the [ENTITY] Ex.A 3 that none of the injuries found on the body of the deceased could be caused by the blade or the pointed portion of [ENTITY] Et.A 3. Likewise, he further opined that the blade and the point of [ENTITY] Ex. A. 5 were not sharp but were blunt. According to his opinion, if [ENTITY] Ex.A. 5 was used in hitting the deceased with the pointed portion of the blade, it could have caused a penetrating wound. Dr. [ENTITY], however, observed that if the blow was inflicted with the blade of [ENTITY] Ex.A 5 from either side, then there was possibility of causing an incised wound, but this is not the version of the eye-witnesses who definitely stated that the pointed portion of [ENTITY] Ex A.5 was thrusted into the body of the deceased. Dr. [ENTITY] was further cross-examined on this point. He definitely stated on further cross-examination that he found incised wound on the person of [ENTITY] having clean cut sharp edges and as such there was no injury on the body of [ENTITY] caused with spear Ex.5. The Doctor further admitted in his cross-examination that the point of [ENTITY] Ex.A.4 was quite sharp and if this [ENTITY] was used in causing the injury with its pointed portion with force, it would have caused punctured wound and not an incised wound. The relevant portion of the statement of Dr. [ENTITY] is quoted below:
I see [ENTITY] Ex. A.3. It is correct that none of the injuries which I found on the body of the deceased [ENTITY] can be caused by the blade or the pointed portion of this [ENTITY] Ex A. 3 [ENTITY] Ex. A 5 is not pointed. The blade of this [ENTITY] is not sharp but blunt. The point of the [ENTITY] is quite blunt. There is difference between the incised wound and the punctured wound. A weapon which cuts across the skin and caused the wound, such wound is called incised wound. A weapon which cuts into the skin is called penetrating wound. This is correct that if [ENTITY] Ex. A. 5 is hit from the pointed portion of the blade, it will caused penetrating wound. Except injury No. 1 there was no punctured wound. It is true that if [ENTITY] Ex. A. 5 is hit from the pointed end of the blade then the injury which I noticed on the body of [ENTITY] cannot be caused and no such injury was found on the person of [ENTITY]. If the blade of this [ENTITY] from either side strikes and cuts then there is a probability that incised wound could have been caused. I see the blade of [ENTITY] Ex A.5. The edges of this [ENTITY] from both sides are not clean and sharp but it is full of ridges. It is true that the ridges of the blade will also leave mark on the skin and the wound. I had found the clean out sharp edges incised wounds on the person of [ENTITY] and as such there was no injury on the person of [ENTITY] of [ENTITY] Ex. A 5. The points of [ENTITY] Ex A.2 and Ex, A4 are not blunt but are quite sharp. Both Ex. A 2 and Ex. A.4 are the pointed sharp weapons. If [ENTITY] Ex A. 2 and Ex.A 4 are used and hit from the pointed side with full force these will cause punctured wounds. This is correct that if these Sales have been used as thrusting weapon and have struck from the pointed side then the injuries which I noticed on the body of [ENTITY] was not received from any of these two weapons, except injury No. 1
The prosecution has not afforded any explanation for the irreconcilable and glaring conflict between the statements of the eye-witnesses and the medical evidence. Hence, it is highly doubtful whether [ENTITY] son of [ENTITY] dealt a thrusting blow with his spsar Ex.A 3 on the right axillary fold, [ENTITY] inflicted a thrusting blow with his spear Ex.A. 5 on the palmer surface of the left hand of [ENTITY] and [ENTITY] gave a blow with his spear Ex A.4 on the left dorsum of the left thumb of the deceased as alleged by the eyewitnesses in their depositions at the trial. In view of this serious unexplained conflict between the oral evidence, and the eye-witnesses and the medical evidence, we have no hesitation in holding that the prosecution could not substantiate its case against these three respondents beyond reasonable shadow of doubt. They were rightly acquitted by the Sessions Judge of the offences with which they were charged. The Public Prosecutor could not succeed in showing that the findings of acquittal given by the learned Sessions judge are erroneous and are based on no evidence.
12. The result of the above discussion is that we accept the appeal of [ENTITY] son of [ENTITY], set aside his conviction and sentence under [SECTION], [ACT] and acquit him of the same, The appellant is in jail. He shall be released forthwith, if not required in connection with some other case. The appeal filed by [ENTITY] falls and is hereby dismissed. Likewise, the [CASE NUMBER] filed by the State has no force and is hereby dismissed.