'S^ ^WW^, ^^'1(0, ic|^l<1^< ,fc,fl, (51 (^f.6&, •2-^ fc<-^<af :2/^T)a^ ^ iffWiT ^^^'""•""""•-•••^•"'•—•"^"•—"'''•-""•^ ^00^ 3H^T ^ra? ( ^ctf^^T) ^TT^T^Tl^iW 'TOT STi^? ^qN? /{ ^ Fl ^wi^R ^a 3ff^T Criminal Appeal! cM<it<n<il»i1Em^if ^f^st <pai<^i< 10.158 of20&3rRm3^ PPELLANTS: n Jail) 1. ESPONDENT: - Vers] Criminal Appeal 4PPELLANTS: (jn Jail) Sanju @ Sanjay, S/o Kalamani, aged about 20 years. Ramdayal, S/o Ramadhar Satnami, aged about 25 years. Govardhan, S/o Nanukram Dhobi, aged about 37 years. Baburao Tamane, S/o Nanarao Tamane, aged about 38 years. All residents of Kushtha Basti, Pandri, Raipur. Us - The State of Chhattisgarh. Mo.159of2002 2. 3. 4. 1. Vishram, S/o Bhurwa Nirmalkar, Aged about 25 years, R/o Kushtha Basti, Pandri, Raipur. 2. Santosh Singh Rawat, S/o Harnam Singh Yadav, Aged about 26 years, R/o Jaybati, P.S. Bhitarwar District Gwalior (M.P.) 3. Prahlad, S/o Sadh Ram Nirmalkar, Aged about 28 years, R/o Kushtha Basti, Pandri, Raipur. Twf «^IN10^, ^>Tf1^<l<S, Rf01'MI^< C^. ^ . ( ^,fS^f^O^^-6^aA^l^f^/ Wl/ 200^- ^INdl ^WRR 3iT^?T'tRR? (yity^^l) 3:n^r ??rl^w 'TOT ^IT^T ^^ic?» '^rrw^rf^r^n^r RESPONDENT: APPELLANTS: (InJail) _ \ Criminal ADD <=t>l<((<!1<I1l 'RTR^f ^fe^ <Pq^l< ^3?Jfim3TT^T Sliyikh Sultan, ~~~ S/o Sheikh Majid, Aged about 28 years, R/o Tarun Nagar, Pandri, Raipur. Prahlad, S/o Laxman Singh Ghasiya, Aged about 22 years, R/o Kushtha Basti, Pandri, Raipur. Raju Kosariya, S/o Jhanglu Ram Kosariya Aged about 24 years, R/o Kushtha Basti, Pandri, Raipur. ersus - The State of Chhattisgarh. >alNo.160of2002 1. Nandu @ Nand Kumar, S/o Baburao Tamane, aged about 17years, R/o Kushtha Basti, Pandri, Raipur(C.G.) 2. Sanjay @ Sanju Adwani, S/o Govind Adwani, aged about17years, R/o Gandhi Nagar, Mathpara, Raipur (C.G.) 3. Manoj Kumar @ Tukesh, S/o Jethuram Druw, aged about 17years, R/o Kushtha Basti, Pandri, Raipur (C.G.) -HC—78 ~5^ -^N10^, ^<141<o, fsf<?'>W^< 6). f^. (5?,t ^f^^^w^^^j ^rwir iKw^ -•""•^•"-""—"-•-•"•""""-•""^200 ^ 3n^?r-^^ (^ptg^??) 3?n^r ^n f^^i<ssi TCT S^^ ^^i<=b b>^ '^iTW^n^TT^r RESPONDENT: APPELLANT: (InJail) RESPONDENT: APPELLANTS: (In Jail) RESPONDENT: Criminal Apri <ersus - The State of Chhattisgarh. [ealNo.266of2002 Criminal Apoleal No.312 of 2002 cbl^id^l'1 HW^ 'fff^^ <f^1<$l< ^^FfRpT^n^T ersus - Madhu Yadav, S/o Mangloo Yadav, aged26years, R/o Kushtha Basti, Pandri, P.S. Civil Line, Raipur (CG) State of Chhattisgarh, Through P.S. Civil Line, Raipur (CG) 1. Nandu @ Nand Kumar, S/o Babu Rao Tamne, Aged about 19 years, R/o Kusht Basti, Pandri, Raipur. 2. Babu Rao Tamane, S/o Nanarao Tamane, Aged about 28 years, R/o Kusht Basti, Pandri, Raipur. 3. Gendlal Patle, S/o Bhivaji Patle, Aged about 36 years, R/o Kusht Basti, Pandri, Raipur. ersus - The State ofChhattisgarh, \- [C—78 3i7T^r^T^^' TCT^yR^T^RW 3:wT ^||^|0^, %S»Tfl^ll<o, f«10iy^< (^^ABS^V^O^a^^^^ 'WRW ^tNtsb ^/200^ 3TT^?T ^I^F (yi[ya<^) {Criminal appeals under Section 3 '^nw^'n^TT^T Present: Mr. G.S. Ahluwalia, counsel for Mailoj, Mr. Rakesh Anthony, counsel for N^ Mrs. Indira Tripathi, counsel for rem^ining for Mailoj, Govardhan & Sanjay Adwani. mdu & Baburao. accused. Mr. Akhil Mishra, Panel Lawyerforl^ie State/respondent. -\ Division Bench: Hon'ble Mr. L. Hon'ble Mr. Stlnil ORAL UUDGMENT (Delivered on L.C. BHADOO, J. 1. Cr.A.No. 158/2002 filed by San| Baburao Tamane; Cr.A.No.159y Rawat, Prahlad - S/o Sadh Ranl Laxman Singh Ghasiya & Raju Nandu @ Nand Kumar, Sanjal Tukesh; Cr.A.No.266/2002 filed filed by Nandu @ Nand Kumar, being disposed of by this comrtion arising out of the same incider cbl^fd^'1 i<WdT '^,fe(:3t <F3i<Sc'< ^^iRw^TT^T Through lh6 Uistnct MagTsTrale; Raipur (CG) 4 (2) of the Code of Criminal Procedure, 1973} . Bhadoo and lil Kumar Sinha. JJ. |15th October, 2007) |u @ Sanjay, Ramdayal, Govardhan & |f2002 filed by Vishram, Santosh Singh Nirmalkar, Sheikh Sultan, Prahlad - S/o Kosariya; Cr.A.No. 160/2002 filed by @ Sanju Adwani & Manoj Kumar @ by Madhu Yadav and Cr.A. No.312/2002 Babu Rao Tamane & Gendlal Patle are judgment, as all these appeals are \t dated 22-4-2001 and same judgment -HC—78 TwT •^l^l^'q, tS)Tf1^11C, fsfC'>l«^< (5,. ^. 1 ^, t S9, (^ O, ^^ C,M^(^/ ^TWiT ^W^ ••••""—•••••"••"••."""•"— ••""•••"^200^ 3H^?r ^nra? (ijcilysqiy) ^T^r^T^TO? '<T^TT 3T|it2?T'i?r?N? ^. '^nw^ftn 3^n^r Fi-^-^nn? |^CIO<>?t?< Sessions Trial No.200/2001. 2. By these appeals the correctness of the judgment of 2-2002 passed by the 3rd Additi{ Trial No.200/2001, whereby \ea\ holding the accused/appellants| Sections 147, 148 & 302 read each of the accused/appellant^ three years & imprisonment for 1| of payment offine to further und( accused^appellants have questioned legality and ctonviction and order of sentence dated 5- )nal Sessions Judge, Raipur in Sessions ^ned 3 Additional Sessions Judge after Iguilty for commission of offence under vith Section 149 of the I.P.C. sentenced to undergo R.l. for two years, R.l. for fe and pay a fine of Rs.1,000/-, in default ?rgo R.l. fortwo months, respectively. 3. Caseofthe prosecution, in brie^ the accused persons forcibly toc|k towards the Dharmshala of Lerfr Raipur. They attacked him v^ deceased namely, Bantika Ba| namely, Mukesh whofollowed th( taken by the accused personsj Santosh, Shrawan, Sanjay Kunr| beating given by the accused unconscious. 4. The matter was reported by Bar Dehati Nalishi Ex. P-14 in Policel < the first information report (Ex.P-j rd cM<i(<n<Ili 'RTR^f ^fc^ <t^t^i< ^3tfilH3?T^T ^ririi+ir ^VIV-IILIV^I Idl \-/^.^^' Judyy, Raipur in ^l^^l ls7 Ul-IVJV-l^i 1\ is that atabout 8.30 p.m. of 22-4-2001, Shailu @ Shailendra (since deceased) rosy patients situated in Pandri area of (hich was witnessed by mother of the & younger brother of the deceased i^m when Shailu @ Shailendra was being The incident was also witnessed by lar & other persons. As a result of the Ipefsons, Shailu @ Shailendra became (tika Bai, mother of the deceased, under Station: Civil Lines, Raipur, whereupon J14A) was registered byR.S. Tiwari, ASI, XI-HC—78 3:[T^??FT'^1^ "cCT 3Rf^T ^ite 75ST -MN10^, ^Tn'y'Ko, {clOI'M^ Co. A. I ^?, f^f, ^ O, ^66 OLM^ VW^ iFTT% 3H^T ^ITSR (^cll^sK^r) ^rs./ "^ 200^ '^nw^f^^n^T Fui uffdiLrt; puiiisliablf? undyi S^ 149 ofthe I.P.C. Thereafter, m^r Tiwari, Sub Inspector, from Mekjahara 5. After registration of the case| investigation. He left for the s(|( bloodstained soil, one piece of| bloodstained wood, one bambdo Batta under Ex. P-2. One banlboo from accused Madhu Yadav uhfcl from accused Ramdayal Sing| stained with blood was seized f( Ex. P-5. Site plan (Ex. P-7) of the Halka Patwari. After givin| Investigating Officer prepared i| Shailendra. the 6. The body was sent to Medical under Ex. P-8 where Dr. Ulhas body of Shailu @ Shailendra. that the death was due to sh< injury. Injuries No.1 to 3 were No.5, 7, 9 & 10 were also caus' caused by blunt & small object, & blunt object having irregular also caused by hard & blunt the ordinary course of nature to cbl<ll<n<fll 'RTWJf ^fe^ <Rq^l< '^3TRP:T3T1^T uliuns 147, 148 & 307 read wlth SectiOn g intimation Ex.P-15 was sent by Rajesh Casualty Ward on 23-4-2001. the Investigating Officer took up the ene of occurrence and seized, plain soil, stone stained with blood, three pieces of club stained with blood & one wooden club stained with blood was seized ler Ex.P-3, one bamboo club was seized under Ex.P-4 and one bamboo Lathi \om accused Santosh Singh Rawat under place of occurrence was prepared by notice Ex. P-11A to the Panchas, the ^quest Ex.P-12 on the body of Shailu @ ^ollege Hospital, Raipur for post-mortem ponnade conducted post-mortem on the |He prepared report Ex. P-15 and opined ^ck & haemorrhage as a result of head jcaused by blunt & heavy object, injuries ^d by blunt object, injuries No.4 & 6 were injuries No.12 & 13 were caused by hard ^urface and injuries No.8, 10 & 14 were ofcUect. Injuries No.1 & 2 were sufficient in bause death. [C—78 3^r ^i^i^, «>Tn'yli<s, (si0i<-i^< &. ^ (%(^^0,^6^^/_^/_ ^^ ^^"•"—"•^^•••"•^•—^—^ 200 ^ 3n^?T ^[5RF ( 11^^<^) 3T^??5T<^;?N? 'd^T STF^T ^^? ^l^ I ! '^ITW;Rf?H ^FTT^T 7. After completion of investigatior|, Chief Judicial Magistrate, Raipu^" Sessions Judge, Raipur, from Judge, Raipur, received the cas4 8. The prosecution in order to persons examined 14 witnesse^ were recorded under Section accused denied the materiaT evidence and stated that theyf implicated in the crime. The Dewangan (DW-1) & Raju Dhan^ ^stablish charges against the accused Statements of the accused persons |13 of the Cr.P.C. in which each of the apjpearing against them in the prosecution are innocent, they have been falsely ^iccused persons examined Panchanan ^war (PW-2) in their defence. 9. Learned Additional Sessions Jujdge parties, convicted and serltenced aforementioned. 10. We have heard learned counsel b|3dy 11. Learned counsel for the appellarjts of Shailu @ Shailendra. Morec conducted post-mortem on the 2001, has stated in bis evidenc^ on the body of the deceased ar lacerated wound near left ear & deep up to bone and depressed < He has further stated that therd <=M<(I<n<Ili 'HW?Tf ^fel3t <Ri«fi< ^3?|Rp:T3TT^?[ charge sheet was filed in the Court of ', who in turn committed the case to the where learned 3rd Additional Sessions on transfer for trial. after hearing counsel for respective the accused persons as br the parties. have not disputed the homicidal death »ver, Dr. Ulhas Gonnade (PW-10), who of Shailu @ Shailendra on 24th April, that there were as many as 16 injuries id out of those injuries, injury No.1 was >ehind head in the size of 8 cms. x1 cm. racture in the size of 7.5 cms. x 2.5 cms. was lacerated wound obliquely placed XI-HC—78 ~3:c3[ ^||q|0<q, ^Tn<H41<o, isf<?I>l^^< &.ft.(^^/^ (W^GQM^^^ "•^ |200 TWIW iPTR? 3n^?r'<i3ra? C^f^^r) ^TT^T^T^SW ^^ ^^ ^m^ ^ '^RTTW^Tf^T 3TI^T c»»i<<(<n<fli'WTdf ^fe^ <Ri<^«< i73TRFT3TT^T noar oar 8omo. in longth & I.Sjomo.in width, doop up to bono. Hc has further stated that the above injL^-ies were sufficient in the ordinary course of nature to cause death. On di^section of the body, he noticed that there was subdural & suborganised t| sufficient in the ordinary course| stated that injuries No.1, 2 ai| sufficient in the ordinary course aemorrhage and injuries No.1 & 2 were of nature to cause death. He has also id all the injuries taken together were ^f nature to cause death. The death was homicidal jn nature. His report} is Ex. P-15. Therefore, in view of the above evidence, it is establtshe|d that the death of Shailu @ Shailendra was homicidal in nature. 12.As far as complicity of the acci|sed persons in the crime in question is concerned, in this case, so calletl eyewitnesses namely, Dular Ram Sahu (PW-1), Sanjay KumarYadav (Pji/V-2), Shrawan Mishra (PW-5) & Santosh (PW-6), who were said to be ac incident, have turned hostile and case. Conviction rests primaril bompariying the deceased at the time 6f they have not supported the prosecution ^ on the evidence of Mukesh (PW-11), younger brother of the deceasejd aged about 11 yearsand Bantika Bai (PW-12), mother of the decease(p. 13. Learned counsel for the app|ellants argued that in this case, no independent witness has suppor(:ed> the case of the prosecution. Mukesh (PW-11), being a child witnes^ & real brother of the deceased and Bantika Bai (PW-12), mother of| Perusal of their evidence establj the incident. Therefore, no e| evidence. the deceased, are interested witnesses. ^hes that in fact, they had not witnessed ^plicit reliance can be placed on their XI-HC—78 37i^r^i^iw 'emr ^ri^r ^^iNi' •3:53( ^IHI^, ^Tfl-M^Ko, (s<01<-1^< &_^'{^S>1^(^:>M..^[^[^ \~ 'WW?T ^PSFT^ ^oo^ 3n^?r X[^F (4<<^<^) ^RiTW^rf^T^TI^T 14. On the other hand, Mr. Akhil Mit judgment of the trial Court. 15. From the perusal ofthe evidencj 12) it is apparent that in fact, Bj crime in question. >hra, learned Panel Lawyer supported the e of Mukesh (PW-11) & Bantika Bai (PW- intika Bai (PW-12) had not witnessed the 16. Mukesh (PW-11) in para 6 of hi< Shailendra fell down, the accust -\ his mother. WhenShailu @ call his mother. He took 15 with his mother reached on th^ the ground, 8-10 police person^ present there. In para 2 he ha| and when his brother became matter to his mother, at that hearing from him, his mother ru^ 17. Even Bantika Bai (PW-12) has son came to inform her that thel Shailendra near temple, thereaper persons were attacking his son| cross-examination she has stat informed that Shailu @ Shailenc| accused persons were disclos| names of the accused persons to her, before that shewas not| <=hi<<i<n<i1i 'HTR^lf ^fe^ "^R^R ^3fRFT3TI^T evidence has stated that when Shailu @ id persons came running, he went to call Shjailendra became unconscious, he went to mirjutes to bring his mother. When he along spot, Shailu @ Shailendra was lying on were present there and no accused was stated that after the Marpeet was over lunconscious, he went and disclosed the ?, his mother was at residence. After |hed to the spot. c|b tifrie, ^tated in para 2 of her evidence that her |accused persons are attacking Shailu @ r, she went on the spot and accused |with club, stone & rod. In para 5 of her sd that it is correct to say that she was |ra is lying unconscious and names of the ^d by Mukesh, she came to know the t)nly when Mukesh disclosed their names jknowing. It is correct that the names of XI-HC—78 TCTT -AIMI^A), ^Tfi'M4!^, fs)01-y^< ^hA. !^^[€l-..?i?P^.46.a^LSi5/. ^^, ;^....'Z.;..r..^......7.^.^.7.:::^..^.^^ ^ 10 W^IIQQ^ an^yr ^sra? (^tl^^) ^T^T^ ^i^ '(CT-3?!^T ^^N' ^^nW^rf^T 3?TT^T II ly aucuyyd wyie diyduyed by those names to the Police. Ini correct to say that she went to to call her, before that what tf Shailendra she does not kno4 evidence of these two witnessesl attack made by the accused pejrsons (PW-12). 18. In the circumstances, only the - be scrutinized and it is to be se^ of PW-11, the prosecution has k| accused/appellants attacked thej 19. Law regarding relative witness related to the deceased or vicl ground that the witness is relat^ while appreciating the evidence] the evidence with great care a[ truthfulness and correctness of also settled law that while apprec to see that where the case invol be a strict scrutiny of the evidej truthfulness of the evidence ofthl 20. In the matter of Bhimappa Chai Karnataka {2006 (10) SBR 13}, cbi^fd^ii'i w^f ^fe^ <n»i^«< ^3TRPT3T1^T lukesh to h6f dnd in turn she disclosed para 7 she has further stated that it is ie place only when Mukesh came to her e accused persons did with Shailu @ Therefore, from the scrutiny of the (PW-11 & PW-12), it is apparent that the was not witnessed by Bantika Bai ^stimony of Mukesh (PW-11) remains to ?n as to whether based on the testimony leen able to establish the fact that all the Ideceased. fswell settled. Testimony of a witness im cannot be discarded merely on the jd to the deceased. hlowever, the Court |of such witness is required to scrutinize id circumspection in order to ascertain leir version stated before the Court. It is iating the evidence, the Court is required |t/ing serious offence is there, there must hce of the witness in order to ascertain ^ witnesses. (dappa Hosamani & others vs. State of (he Apex Court held that XI-HC—78 3iT^T ?RT f^^ WT W^?T ^^iet> ^ 3^T .^ll^l^^, tS>Tft'MIIG, is|<''il<-1^< ^A^^^^°^6^w^^ WR'TT' ^^.;.^...^..v..^..-^...-^^.y..".....^.^^00 ^ 3n^?r XR^ (ii^t^<^) ^wi^R <yf^a 3?n^T .uii II iy bayiy eyewitness a convicti^ cautioned that while that the testimony of| sterling quality that conviction solely on doing so the Court by reference to the| evidence must be fre4 impress the Court as| natural and so corfr hesitation in recordind the testimony of a sinc of ihy lestimony 6t a single ^n may be recorded, but it has also cSoing so the Court must be satisfied the solitary eyewitness is of such Court finds it safe to base a (he testimony of that witness. In iijst test the credibility of the witness quality of his evidence. The of any blemish or suspicion, must |wholly truthful, must appear to be ^incing that the Court has no a conviction solely on the basis of le witness." tie milst 21.Bantika Bai (PW-12) has state|j were disclosed by Mukesh to| Perusal of Dehati Nalishi Ex.P-1 ten names of the accused p^ deceased are given in this D| Sanjay, Madhu Yadav, Ram Sultan @ Bashir, Baburao, However, names of Prahlad - Kosariya, Vishram, Santosh Sinc Nalishi. Mukesh (PW-11) ha^ lodged, he was also accompan^ he was present in the Police accused persons were not ment to the Police regarding the atta^ known to Mukesh. The evidenc to the effect that he witnessed chl^id^fl'l 'RP^f ^fe^ <Pn^i< ^3TRm3TT^T in her evidence that whatever names her, those names were given by her. |4 given by Bantika Bai reveals that only ^rsons who said to have attacked the ?hati Nalishi namely, Nandu, Sanju @ Qayal, Sanjay @ Sanju Adwani, Sheikh iendlal, Manoj Gond & Sanju Gond. |/o Madhav, Prahlad - S/o Laxman, Raju |h Rawat are not mentioned in the Dehati stated that when Dehati Nalishi was \\ng his mother to the Police Station and [Station, why the names of these five |oned in the Dehati Nalishi and not given ^ made by them also, reasons are best ^ of Mukesh does not inspire confidence |the incident, for the reason that he has XI-HC—78 '%^':%?^s 377^?T^T'^N' 'cw'sni^? ^pN? .^. "^' 'S^ ^|N|<^<4, ^Ttl-M'Ko, (st^l'y^< Cs,^. (^ (^^UO, ^^cwl S(^/ ^mw' ^^"•-7""^-"--^--"-7-""""-^^200^ 3:IT^?T'q5W ( 4?<f^^) 12 ylalyd 111 paia 2 uT tiiy evldeiicej Sanju & others whose names Kodhi Dharmshala where Nan<jlu started beating. Nandu, Ramjdayal Sanju Udiya, Prahlad, Raju & G|e of Prahlad & Raju have not bee( 22. Site plan Ex. P-7 prepared by that the place of occurrence ms|r Office of Leprosy Welfare accused persons, as per the Shailu @ Shailendra. The sit| witnesses namely, Panchan< contradiction between site plar| place where the incident sak Investigating Officer has not sta^ plan of the place of occurrence it establishes that Mukesh had 23. Mukesh (PW-11) in examinationj- a stone lying on the place and| stone. But this fact has neitherj in his police case diary stat^ strengthens the doubt that this | This witness in the first instancel Nandu, Prahlad, Ramdayal, does not know the names of chl^{<rl^-11RFRJf ^fe^ <F3K-$i< ^3iRiH3Fn^r that ac&used Nanau, ^raniaa, Kamdayal, re not known to him took his brother to said that he be beaten on which. they & Madhu gave beating with club, ^ndlal attacked with lathi, whereas names mentioned in the Dehati Nalishi. l-|alka Patwari Biharilal Naik (PW-3) shows i^rked in red ink was near the temple. The Co^mjttee is ahead of the place where the /ersion of Mukesh, attacked his brother plan was prepared at the instance of |n Dewangan. Therefore, there is and evidence of Mukesh regarding the to had taken place. Moreover, the ^d anything whether he prepared any site |or not. This contradiction is material and n|ot witnessed the crime in question. t-in-chief has stated that Sultan picked up attacked Shailu @ Shailendra with that |3een mentioned in the Dehati Nalishi nor ^ment Ex.D-1. This fact also further Iwitness had not witnessed the incident. took the names of four persons namely, ajnju & others and further stated that he (Dther accused persons, whereas in the Sajnj XI-HC—78 3i7T^?^T^W '(CT <3T?^T ^TO^- 3^Ef ^M|0^, ^^1(0, (st^l'yy ^A- '^^.(^.!^.^.€C^.1L^ -WWiT ^^•".••..•.-<--..".<"..-""-.".-"""^ 13 -^llQO^ 3n^?r xisra? (lyl^^sr) ^Rnw^rf^T ^TI^T LCIIIL»C?, i ic luur^ 11 ic i id; attacked the deceased. Theref(bre fact that Mukesh had not witn^ Mukesh has stated that all nan1< Dehati Nalishi on disclosure by| only four persons took Shailu @ not known to him. 24. If the evidence ofthis witness i^ Kumar Yadav (PW-2), even\ chl^li<yt^1'1 'RT^f ^fe^ <Rn^i< ^3TRP:T3TI^T iit;^ ufullid pds>uiis> wliu dllt?yt?d lu ?, this instance is also suggestive of the ^ssed the incident. Moreover, mother of es of the accused personswere given in Mukesh, whereas as stated by Mukesh, } Shailendra, names of other persons are appreciated with the evidence of Sanjay ;hough he has turned hostile, but the evidence of a hostile witness (^an also be looked into. He has simply stated in his evidence that h^ saw accused Prahlad Singh, Prahlad Kurmi, Shyamlal, Sarju, Ramipayal & Madhu while taking Shailu @ Shailendra towards Shiv temp|e, he was following them, he saw that those persons gave beating wi1|h slap & fists, thereafter, they ran away. Other persons did not do any|thing to Shailu @ Shailendra. He has further stated in para 2 that at tljiat time Mukesh and his mother might be at their residence, in fact, he w^s accompanying Shailu @ Shailendra at the time of incident. In para 2|he has categorically stated that Mukesh and his mother were at residen|ce and they were not present. This fact further strengthens that Mukesji ^ad not witnessed the incident. This witness in cross-examination |has stated that Shailu @ Shailendra (deceased), Shrawan & Santos|i were close friends, they used to harass the Leprosy patients of the ^icinity and snatch money from them. Therefore, all the people of wh|ole vicinity were enemies of these three XI-HC—78 ^ ^n^r^r'f^F cf^T ^W^ ^^$<=ft 3:SST;^Fn^T, ^Tfi^<|<o, fs(0W^< <^, (\, I^IS^, f^0,r>U^^( ^, 14 'WWST ^P?!^? WI,/200^ 3H^?T XRF8R ( <iclf^^?^) ^wi^R ^a 3?n^T pci o^i 10. iii paici 11 iic i lao oi< Shailendra, but the accused per^ons were not there. 25. Mukesh (PW-11), brother of th^ admitted that the day of incidet|it brothercame after release froiti Lines were also searching for that when his brother was not a^ailable Station. This shows that decel with criminal antecedents, he a| the people of vicinity and thej people of that vicinity were Mukesh (PW-11) in para 13 of| that on that day, Nandu & Babi|lal leg ofthe deceased, thereafter,| stated that Sanju gave one Shailendra, thereafter, he had many as 16 injuries have Shailendra by the doctor. Th( injuries found on the body of S|iailu the testimony of Mukesh (PW-1 by the accused persons becom^s doubtful 26. Case of the prosecution is that | deceased with Lathis & clubs, from three accused persons na^nely nothing has been recovered fron|i cM<iI<n<Ili ^IPT??f ^fe^ <P»I<$I< "^ siRm 3?iT^?T idi o- i\j pd^uii^ deceased, in para 4 of his evidence has was Sunday, whereas on Saturday his jail and on Sunday the Police of Civil >hailu @ Shailendra. It is correct to say Police took his father to the Police ased Shailu @ Shailendra was a person [ong with his friends used to quarrel with used to snatch money, therefore, the hjaving animosity against the deceased. Ihis cross-examination has further stated gave blow with club only once on the [they did not attack him. Further he has of club on the head of Shailu @ fiot attacked the deceased, whereas, as ^en noticed on the body of Shailu @ ^refore, this evidence is contrary to the Shailendra. On this count also, |1)j-egarding witnessing the attack made yiow b^en |all the 15 accused persons attacked the 1/hereas clubs have only been recovered i, Ramdayal, Santosh & Madhu and remaining accused persons. f^ XI-HC—78 ^s^ •^11^10^, ^Tn'y^Ko, fs|<»'>i<i^< 15 . . Co. fY. \^S/ f-^.^ ^^> ixM^^f^oo-^ ^TO^T ^^^"^•"'•""•"••::-^""-—">-<-"-^ 49Q_ f 3TT^?r ^nra? (^cd^^?) 3iTI^T^[^i<h '^?T^H^T^:lte Soma '^TTW^f^T 3?n^T present at the scene of occurr^ case and the evidence of solitc <=M<lI<!l<iil TTTR^ff ^fel3t <t^l^l< ^3ffiW37T^T 27. For tho forogoing rQaoono, Gin(j)Q tho indopQndont witnooooo who were \nce have not supported the prosecution [ry eyewitness namely, Mukesh (PW-11), being full of infirmities, does ncjt inspire full confidence of the Court, no explicit reliance can be placed 4n the evidence of this witness in order to fasten the criminal labiality ona|l the 15 accused persons. Therefore, we are of the considered opinion |that conviction and sentences imposed upon the accused/appellants fd 147, 148 & 302 read with Seetiol 28. In the result, a. the appeals filed by the acc| and sentences under Sectioj of the. I.P.C. are set asid^ charges. b. It is stated that the accu! Ramdayal, Prahlad S/o Sad^ & Sanju Udiya are in detenti set at liberty forthwith, if not c. It is also stated that accu! Sheikh Sultan, Manoj Kumc are on bail. Their bail b surrender before the Court. r commission of offence under Sections i149 ofthe I.P.C. cannot be sustained. \ [jsed/appellants succeed, their conviction hs 147, 148 & 302 read with Section 149 and they are acquitted of the above •ed/appellants namely, Nandu, Madhu, ram, Prahlad S/o Laxman, Raju, Gendlal )n since April, 2001. Therefore, they be ^quired in any other