Kartar Singh and Others vs State of H.P.

Deepak Gupta, J.—All the aforesaid appeals are being disposed of by this common judgment since they arise out of one judgment passed by the learned Additional Sessions Judge (Fast Track court), Kangra in sessions Trial No. 6 of 2004 decided on 8.11.2004. The prosecution storey, in brief, is that on 18.3.2003 at about mid night Raja Ram deceased, husband of complainant Pritama Devi, PW-1 had gone to his fields to drive out some stray cattle. He was returning home along the path towards the back of his house when dog of accused Kartar Singh started barking and attempted to bite him. Raja Ram raised a noise and pelted stones at the dog. Hearing this noise Pritama Devi, PW-1, her daughter Anjana and son Neeraj went to the lentil of their house from where they saw the accused persons Jaswant Singh, Surjit, Kartar, Kapil Dev, Rajnikant and Surinder Kumar giving beatings to Raja Ram. Thereafter, all the accused dragged Raja Ram towards their house and tethered his legs with a Citrus tree and beat him to death with danda and darat blows. According to the prosecution, Pritama Devi thereafter went to the house of the Pradhan Rattani Devi and information about the offence was given to the Police Station by a telephonic call which was recorded at 12.45 a.m. vide daily diary report Ext.PW-17/A. FIR Ext.PW-17/C was recorded on the basis of this report. Thereafter, the police carried out investigation and telephonic and wireless messages were sent to various police officials who reached the spot. The spot was inspected and photographs were also taken. By the time the police party reached the spot Raja Ram had expired. It was found that his legs had been tied with a rope to a Citrus tree. The face of the deceased was drenched with blood. The Investigation Officer took into possession the soil stained with blood and also other articles which had fallen down from the pocket of the deceased at different places. The body of the deceased was sent for post mortem. According to the prosecution four of the accused were arrested on the same day and other two accused were arrested later on and at the instance of the accused rods and dandas were recovered. During the course of investigation the police came to the conclusion that the accused Ramesh Chand and Partap Chand had harboured some of the main accused and hence a case u/s 212 IPC was made out against them. Thereafter, a challan was filed against the accused. Charge-sheet was framed. After trial the learned trial Court convicted the accused Kartar Singh, Jaswant Singh, Surjit Singh, Rajnikant, Kapil Dev and Surinder Kumar for having committed offences punishable under Sections 147, 148, 342 and 302 IPC and accused Partap Chand and Ramesh Chand were acquitted of having committed offence punishable u/s 212 IPC. The convicted accused were sentenced to rigorous imprisonment for life and to pay fine of Rs. 25,000/- each for the offence u/s 302 IPC and in default of payment of fine to undergo further simple imprisonment for five years. The accused were also directed to undergo rigorous imprisonment for one year for each of the offences under Sections 147, 148, 342 IPC. It was further ordered that the amounts of fine if deposited shall be paid to the widow and minor children of the deceased. Aggrieved by this judgment six appeals have been filed by the convicted persons. It is pertinent to mention here that all the accused are real brothers.

We have heard Sh. Anoop Chitkara, learned Counsel for the appellants and S/Shri R.M. Bisht & Rajesh Mandhotra, Deputy Advocate Generals on behalf of the State.

According to Sh. Chitkara, the judgment of the learned trial Court is absolutely illegal and liable to be set-aside on various grounds. He firstly urged that the eye witnesses PW-1 Pritama Devi widow of the deceased and PW-2 Anjana daughter of the deceased had not seen the earlier part of the incident and at best they are the witnesses to the later part of the occurrence. He therefore contends that the origin of the incident as explained by the accused Jaswant Singh and Surjit in their statements u/s 313 Cr.P.C. is more probable version and should be accepted. He submits that in fact it was Raja Ram who had come to the door of their house and attacked accused Jaswant Singh when he came to open the door and thereafter when Jaswant and Surjit while acting in self-defence gave injury to the arm of the accused and then tied him to the tree. He contends that in fact these two accused had gone to the Police Station to lodge a complaint. He also submits that the other brothers have been falsely roped in the case due to prior litigation. He has referred to various contradictions in the prosecution version which shall be referred to hereinafter in detail.

Shri Chitkara has also challenged the recovery of the iron rod Ext.P2 and darat Ext.P-13 pursuant to the so called disclosure statements. According to him the sticks were taken into possession from the spot when the police visited the spot at the first instance. In the alternative it is contended that the case against the accused is not of culpable homicide amounting to murder and at best a case of causing injury is made out. It is lastly contended that there was no premeditation on the part of the accused, the mere presence in the assembly of the other brothers would not make them guilty since there were no meeting of minds prior to the occurrence and that the occurrence occurred suddenly and in the heat of passion.

On the other hand Sh. R.M. Bisht, learned Deputy Advocate General has urged that the learned trial Court has properly appreciated the evidence. He contends that there are eye witnesses in the present case and the statements of the eye-witnesses clearly proves the involvement of all the six accused in this very heinous crime where six brothers ganged together and beat to death the deceased.

To appreciate the rival contentions of the parties it would be pertinent to refer to the statements of the witnesses. There are two eye witnesses to this crime. First is Pritama Devi widow of the deceased. According to her on 17.3.2003 at about 11-11.30 p.m. some stray animals were grazing in their fields and therefore her husband went out of the house to remove those animals. After he had removed the cows from the fields and was returning to his house the dog of Kartar barked and then the accused attacked her husband with sticks. She and her children came on the lintel of their house and saw that all the accused had thrown her husband on the fence on the other side of the house and were beating him with darat and sticks. She and her children witnessed the occurrence and raised a hue and cry. Her husband was also pleading for mercy and shouting that he be saved. Thereafter, the accused persons dragged her husband to their court-yard through a public path and a field of mustard crop. Her husband was also kicking and fighting to protect himself. Thereafter, Kapil Dev brought a rope and tied her husband with a tree. The witness shouted that her husband should not be tethered with the tree but the accused threatened to kill her. Thereafter, she went to her room to telephone the police but found that her telephone was out of order. She and her children were scared that the accused would also kill them. Thereafter, she alongwith her children went to the house of Rattani Devi and narrated the incident. Rattani Devi rang the police and informed them about the complaint made by the witness. The complainant also talked to the police on telephone. Then Pritama Devi along with her children walked to the Police Station and again informed them about the incident. Then the police went to the spot. Later Pritama Devi along with Pradhan Rattani Devi also reached the spot. By that time her husband was died. Some currency notes and one Tabiz and some documents had fallen down from the pocket of her husband. The currency notes and Tabiz were blood stained. Two sticks and iron rods were lying near the Citrus tree with which her husband was lying dead. Photographs were also taken on the spot. She further states that the accused ran away from the spot. According to her accused Kartar was carrying a darat. Rajnikant had used an iron rod with grooves which he threw into the fence. The accused identified the Chapel of her husband Ext.P-1, the iron rod Ext.P-2, Tabiz Ext.P-3, currency notes Ext.P-4 and revenue papers Ext.P-5. She also identified the two sticks one of Jamun and another of Bamboo. The Bamboo stick was identified as Ext.P-6 and Jamun stick as Ext.P-7. The clothes of the deceased were also identified which clothes were blood stained. According to this witness the light had been switched on in the house of the accused and also in the house of Hoshiaru Devi. According to her there it was a moon-lit night. Under this light she identified the accused. She also identified the rope Ext.P12 with which her husband was tethered to the Citrus tree. According to her, Hoshiaru and Rajinder live near their house. They witnessed the occurrence from their house but did not come to the spot.

The witness has been cross examined to the effect that she, her husband, Hoshairu Devi and her two sons were facing trial in the complaint lodged by the accused. According to her a false case had been registered against them. However, from the statement of the various witnesses it is apparent that there was a lot of ill-will between the parties and there were a number of criminal cases pending against each other. She has admitted the suggestion that her statement was recorded at the Police Station. She states that she informed the police that her telephone was out of order but does not know whether this fact was recorded by the police or not. She admits that neither she nor her children tried to save her husband. According to her the accused would have killed them also. She has denied the suggestion that on the night intervening 17th and 18th March, 2003 only accused Surjit and Jaswant were present in their house. She has denied the suggestion that the deceased Raja Ram had kicked upon the door of the house of the accused and when Surjit came out of the door then her husband gave a blow of darat which hit him and when Jaswant came on the door the deceased also gave a blow of darat. She denied that Jaswant and Surjit acted in self defence and caused injuries on the arm of the deceased and thereafter tied him to the Citrus tree. She has denied the suggestion put to her that Rajnikant and Kapil Dev accused had gone to the house of the in-laws of Rajnikant. She also denied the suggestion that Kartar Singh and Surinder accused were not present on the spot and had gone to the house of their sister who had met with an accident. She has admitted that some injuries were caused to the accused but according to her these injuries were caused when the deceased Raja Ram was trying to save himself from the accused. From the suggestions made by the accused it is obvious that as far as Jaswant and Surjit are concerned they set up the plea of self-defence and a plea of alibi was set up by the rest of the accused.

PW-2 Kumari Anjana is the 17 years old daughter of the deceased. According to her, after her father had gone to remove the cows and was returning home Kartar�s dog started barking. Then Jaswant accused abused her father and gave blow of danda on the head of deceased Raja Ram. According to her they after hearing the cries went to the roof of their house. They saw that all the accused had thrown deceased Raja Ram on the fence and they were beating him with darat and sticks. According to her the accused were carrying darat, sticks and iron rod. She stated that her mother, brother and she were begging for mercy from their roof. Thereafter, the accused dragged her father through the grass and mustard crop and then accused Kapil Dev brought a rope and tethered the legs of her father to the Citrus tree. They went down to save her father but the accused ran away. Then they went to the house of Pradhan from there her mother talked to the police. She also states that they could not talk to the police from their house since the telephone was out of order. She states that she had seen the accused as there was light in the house of accused and also in the house of Hoshiaro Devi and also there was moonlight on that night. She has also stated about the currency notes, Tabiz and revenue papers being found on the spot. According to her when the police reached the spot her father had already expired. She states that when they were on the roof they had told the accused that they were like their brothers and asked them to have mercy on her father. She has also been cross examined to the effect that there was a lot of previous litigation between the parties. She admits that when they heard the first noise they were inside the house. She has been confronted by her statement Ext.DY wherein certain facts which she narrated in her statement in Court were not recorded. In cross examination she states that when after making report to the Pradhan they went to the Police Station all the accused persons were already in the Police Station and were making their report to the Havaldar. She denied the suggestion that only Jaswant and Surjit were present in the Police Station. She has denied the suggestion that her father had kicked the door of the house of Kartar and attacked Surjit and Jaswant and they acted in self defence.

PW-3 Hoshiaro Devi was the other eye-witness but she has turned hostile. According to her, on the night in question, she was woken up by her son little after mid-night when he told her that he could hear the noise of sticks. She came outside her house and heard the noise but did not go to the place from where the noise was coming due to fear and remained standing inside the house. She states that her son was standing outside in the court-yard but he also did not go to the spot. According to her she does not know who were quarrelling. After being declared hostile she was cross examined by the Public Prosecutor. She admits that when she came out of the house she switched on the light of her Courtyard. She admits that the house of deceased is 7-8 feet away from the side of her house. She admits seeing the children of Raja Ram on the lentil but according to her the house of Kartar is situated at a distance of about 60-70 feet from her house. The witness states that she did not go to the spot of occurrence on account of fear. She also states that it was a moon lit night. She denied that she had not witnessed the occurrence. This witness has been asked certain Court questions. According to her the house of Raja Ram is at a slightly higher level than her house but is visible from her house and house of Kartar is beyond the house of Raja Ram and is only slightly visible from her house. She also states that the field of mustard was not visible from her house since it is at the back of the house of Raja Ram.

PW-4 Rajinder is the son of PW-3 Hoshiaro Devi. According to him at about 12-12.30 a.m. on the day of incident he was sleeping in his house and heard the noise of sticks blow. He kept on sleeping thinking that there might be stray cattle. Thereafter, he woke up his mother and then they switched on the light of the courtyard and went outside the house. According to him there was noise outside the house but they did not see any person. This witness was also declared hostile since he had resiled from his statement u/s 161 Cr.P.C. He was cross examined by the prosecution. He admits that there was a lot of litigation going on between the families of the accused and the deceased. He then makes a very revealing statement that he does not want to get involved in any such complications. He admits that he had seen Pritama Devi and her children crying on the lentil of their house. According to him at about 1-1.30 a.m. he had seen the broken mustard field and also seen the body of Raja Ram tethered to a Citrus tee in the courtyard of Kartar. He admits that there were a number of injuries on the head of Raja Ram and he was drenched with blood. He however denied that he saw the accused person giving beatings to Raja Ram. He also admits that lights of the house of Kartar were switched on and that it was a moon lit night. He denied having witnessed the occurrence.

PW-5 Rattani Devi is the Pradhan of Gram Panchayat Drung. She states that on the intervening night of 17th and 18th March, 2003 Smt.Pratima Devi came to her house along with her children and she was crying. Pratima Devi informed this witness that the accused Kartar Singh, Jaswant, Surjit, Rajnikant, Kapil Dev and Surinder had murdered her husband and tied him with a rope. She then rang up the Police Station. She first talked to the police and thereafter Pratima Devi talked to the police. Then Pratima Devi and her children went to the Police Station. She also later went to the Police Station and then to the spot. When she reached the spot she found that body of Raja Ram was tied with the Citrus tree and a number of persons including the police personnel, ward member and photographer were present. She and one Kuldip were witnesses to the recovery of blood vide seizure memo Ext.PW-5/A, recovery of Jamun and Bamboo sticks vide memo Ext.PW-5/B, recovery of currency notes, Tabiz and Revenue Papers recovered vide memo Ext.PW-5/C and certain leaves, stones etc. vide Memo Ext.PW-5/D. According to her she was again called to the Police Station on 21.3.2003 when statements of Kapil and Surjit were recorded in her presence. Kapil had made a statement that he had given a blow of darat to the deceased and hidden the darat behind the heap of bricks. Memo in this behalf is Ext.PW-5/E. Surjit had made a statement that he had given a blow of stick and thrown the stick in the field of sarson. According to her darat was got recovered by the accused Kapil from the heap of bricks and the same was stained with blood. The police had wrapped the darat in cloth and sealed with seal- B and prepared seizure memo Ext.PW-5/G which was signed by her and Partap. A bamboo stick was got recovered by accused Surjit from the field of sarson vide recovery memo Ext.PW-5/H. In cross examination she states that in fact she had not gone to the Police Station on the night of the incident but she states that she went to the spot at 1 a.m. when the police called her.

PW-6 Sanjay Sharma, is the photographer who took the photographs of the deceased body, the place where the blood was lying, the place where the sarson crop was broken and the places where the currency notes, Tabiz and revenue papers were lying.

PW-7 Partap Chand is also the witness to the statement of the accused Rajnikant and to the recovery of iron rod and chapel of Raja Ram deceased.

PW-8 Rijhu Ram is the witness to the recovery of stick Ext.P17 allegedly recovered at the instance of Surinder accused.

It is not relevant to refer to the statements of PWs 9 to 16, 18 and 21 since they mainly relate to the offences against accused who have been acquitted or are formal in nature.

PW-17 MHC Satpal has proved the rapat Ext.PW-17/A and its true copy Ext.PW-17/B. He has also proved the FIR Ext.PW-17/C which is written on the basis of the rapat Ext.PW-17/A. In cross examination he admitted that there are number of complaints lodged by the accused party against the deceased. He has denied the suggestion that on that night Jaswant and Surjit had come to the Police station. He has denied the suggestion that Daily Diary No. 32 was prepared subsequently and no telephonic call from Pratima Devi was received. PW-19 Dr.Sunita Sood examined accused Jaswant Singh and found one incised wound measuring around 6.5 cm x 2.5 cm on his left arm. The injury was simple and caused by sharp weapon. The probable duration of injury was 24 hours. She also examined accused Surjit and found one lacerated wound on the occipital region of scalp measuring 5 cm x 1 cm x 05 cm in which injury was also simple. This injury was caused with a blunt weapon. According to her the accused Jaswant and Surjit were brought by the police for medical examination at about 4 a.m. on 18th March, 2003.

PW-20 Dr. Kulbhushan Sood conducted the post mortem on the body of the deceased Raja Ram. He found the following injuries on his person:

On the scalp:

Lacerated wound in left parietal area 6 cm long, skin deep, contaminated with sand. Wound was linear.

L-shape incised wound 13 cm long in right front parietal area. Bone deep.

Incised wound 4 cm long, bone deep, obliquely placed near the hair line, bone deep.

Incised wound 8 cm long, gaping, linear wound on the right parietal area. Bone deep.

Incised wound 7 cm long, gaping, linear on the left occipital parietal region. Bone deep.

5 cm incised wound along side and just above injury No. 5 as mentioned above.

Thorax

16 Apparently thorax was intact. Ribs were cartilages were intact. External injuries on the thorax wall:

A 28 cm long bruise located on the right side of chest and in the front of right shoulder also. Width 1 and 1/2cm.

A 23 cm linear bruise on the right side of chest laterally obliquely placed. Width is 1.5 cm

A linear bruise horizontal placed on lower chest and adjoining epigastrium 20 cm long and 3 cm wide.

A 3 cm long abrasion on right shoulder which is crusted with fresh blood.

Back of thorax

similar bruises which were linear placed criss cross, on whole of the back length varying between 10 cm to 22 cm and width varying between 1.5 cm to 3 cm. Viscera, bones, and cartilages, larynx and trachea, lungs, heart, large vessels were normal.

Abdomen

Wall of the abdomen was intact. No injury found. Peritoneum had no blood. Mouth, harynx and Oesophagus were normal. Stomach had about 40 ml. gastic juice. Small intestinesere loaded with facecal matter. Liver, spleen and kidney were normal. Bladder was having about 100 ml. urine. Gencital organs were normal.

Limbs

Left upper limb � 3 parallel linear bruise 2 cm wide 4, 6, 6 cm. long respectively placed literally in the middle of arm. 5 bruises same character as described above placed across on the post lateral surface of left forearm respectively 8, 10, 9 and 7 cm long.

Elbow

A bruise on the left elbow 2.5 cm x 4 cm means 2.5 cm long and 4 cm. wide.

Right upper Limb

Right shoulder � Anterolateraly 4 bruises 4 to 6 cm long, width is 2.5 cm and 2 cm

Left Hand

A through and through incised wound on first web space between thumb and index finger reaching up to the middle of palm. Index finger broken at the base. A similar incised wound between middle and ring finger reaching almost middle of palm.

Lower Limbs

Multiple criss cross linear bruises ranging from 6 cm to 15 cm on buttocks, thigh, laterally on the front and back.

Legs left

4 incised wounds, on the right leg 3 incised wounds, ranging between 2 to 3 cm in length. Muscle deep and vertically placed.

In his opinion the deceased Raja Ram had died due to hemorrhagic shock and also because he was in great pain. According to him Raja Ram might have died within one hour to two hours of the receipt of injuries. He has opined that injuries on the scalp, front of the legs and the injury on the left hand are possible with the blow of darat Ext.P-13. The remaining injuries are possible with bamboo sticks Exts.P-16 and P-17. The injuries mentioned on the thorax, thigh and leg are possible with stick Ext.P-6 if less force is used. He however stated that the injuries cannot be caused with iron rod and stick. On a suggestion being put to him he has clearly admitted that most of the injuries found on the head of the deceased are not possible in lying posture. He has stated that the bruises and abrasions on the deceased could only be caused if he was hit with a linear object. According to him the deceased was in a posture of defence.

PW-22 Jagdish Chand is the Investigating Officer. According to him after the FIR Ext.PW-17/C was registered he along with other police officials went in an official vehicle to the spot. On the way they took Sanjay Kumar, Photographer with them. At the spot they found dead body of Raja Ram. The legs of the deceased were tied with a rope to a Citrus tree. Pradhan Rattani Devi came to the spot along with complainant Pritama Devi and her children. Pritam Chand and Kuldip Kumar also reached the spot. The lights of the house of Kartar Chand and Hoshiaro Devi were also on and it was a moonlit night. He prepared the site plan and recovered two sticks which were stained with blood. He also recovered various other items. When he was coming back from the spot to the Police Station then Kartar, Jaswant, Kapil Dev and Surjit met him and he found injuries on the person of Jaswant and Surjit and they were sent to the hospital along with constable Hamir Chand. All the four accused were arrested after interrogation. Surinder and Rajnikant absconded. Rajnikant was arrested on 20.3.2003. On 21.3.2003 Kapil Dev and Surjit made statement u/s 27 in the presence of Rattani Devi and Partap. Accused Kapil Dev got the darat Ext.P-13 recovered. Accused Surjit gave demarcation of bamboo stick which was recovered from a distance of 8 mts. behind the Citrus tree. On 23rd March, 2003 accused Rajnikant made a disclosure statement u/s 27 in the presence of Partap Chand and Pritam Chand and on the basis of this statement iron rod and one chapel of the deceased were recovered. Surinder Singh accused could only be arrested on 2.4.2003 and according to this witness Surinder made a statement u/s 27 in the presence of Kuldip Kumar and got bamboo stick Ext.P-17 recovered from the bushes near the cow-shed. He has denied the suggestion that when Pritama Devi came to the Police Station then Jaswant and Surjit were present in the Police Station. According to him, it takes 10 minutes to reach the spot from the Police Station. He states that he might have probably reached on the spot at about 1 a.m.

Statements of the accused were recorded and two of the accused Jaswant and Surjit in their statements took up the plea of private defence that Raja Ram came to their house, kicked open the door and when Jaswant came out Raja Ram gave a blow with the darat on the left shoulder of Jaswant. Thereafter, Surjit came out and Raja Ram gave a blow with the darat on the back of his head. According to them they gave 5-6 blows of sticks to Raja Ram in order to snatch the darat. Raja Ram fell down. Then they tied him with the tree. At that time he was alive. Then two accused went to the Police Station to make the report. While they were in the process of reporting the matter, Pritama Devi and her two children came to the spot and they were sent to the Hospital for police examination. According to them, they were taken to the Hospital at about 1.30 -2 a.m. and returned from medical examination at about 4 p.m. to the Police Station when they were taken to the spot. The other four accused have denied the entire incidence and have taken up the plea of alibi.

The accused have led defence evidence. DW-1 Pawan Kumar states that he is known to Suresh Kumar who is married to the sister of the accused. On 17.3.2003 he had gone to the house of Suresh to inquire about the welfare of Suresh�s wife who had met with an accident. Thereafter, within 10-15 minutes Kartar and Surinder reached the house of the sister and he came back after half an hour. Next morning he was told by Suresh that Surinder and Kartar had gone. According to him Anita wife of Suresh had met with a accident when she was sitting in a van. However, he could not state whether the van had struck with something or had rolled down.

DW-2 Preeto Devi states that Rajnikant is married to a girl of her village whose mother is Kaushlya. On 17.3.2003 she had gone to attend Katha in the house of Kaushlya and Rajnikant was present there. Kapil accused who is brother of Rajnikant was also present there. According to her, next day Kapil Dev went back at 8.30 p.m. and Rajnikant stayed in the house of his in-laws till 19.3.2003. She could not name the village of Rajnikant.

From the aforesaid facts it is obvious that there is no denial to the fact that deceased Raja Ram died in a fight. It is also not denied that he was tied to a Citrus tree. Two of the accused have taken the stand that they exercised their right of private defence whereas the other four accused have taken the plea of alibi.

The main thrust of the argument of Sh. Chitkara is that the two eye-witnesses did not witness the incident or at least the beginning portion thereof and therefore the version of the accused should be accepted. It may be true that the eye-witnesses may not have witnessed the very beginning of the occurrence. Both the eye-witnesses have clearly stated that they went to the roof of their house on hearing the noise. It is obvious that that the incident had already started. However, these two eye-witnesses have in no uncertain terms named all the accused. According to them the accused had thrown the deceased on the fence on the side of the house and were beating him with darat and sticks. Thereafter, the accused persons dragged the deceased to their own court-yard and tied him to the Citrus tree. Even after being tied the deceased was beaten. This entire occurrence did not end in one or two minutes. It obviously took some time. Even if the two eye witnesses had not witnessed the initial portion of the occurrence they witnessed the accused beating the deceased, dragging him across the path and mustard field and tying him to the Citrus tree. This version of the eye-witnesses inspires confidence and in fact the plea of the accused that they acted in self-defence appears to be a concocted story.

Even the two witnesses who were declared hostile, that is PW-3 Hoshiaro Devi and her son PW-4, have clearly stated that they got up on hearing a noise between 12-12.15 a.m. They also came out of their house. According to them they switched on the light of their courtyard. It is apparent that these two witnesses were mortally scared of going to the place where the incident took place. The incident occurred behind the house of deceased Raja Ram and this area may not have been visible from the house of Hoshiaro Devi and her son Rajinder. Both the witnesses admit that they had seen the wife and children of Raja Ram standing on the lentil of the house. To that extent they corroborate the version of the eye-witnesses.

We have discussed in detail the medical evidence which clearly shows that the accused Jaswant and Surjit only suffered very simple injuries. According to Dr. Sunita Sood she had examined both Jaswant and Surjit at about 4 a.m. on 18th March, 2003. There was one lacerated wound on the left shoulder of accused Jaswant Singh caused with sharp weapon. Injury was simple. In case of Surjit Singh there was 5 cm long simple injury on the occipital region which was caused with blunt weapon. On the other hand the deceased had six injuries on the scalp out of which four were bone deep meaning thereby that they had been caused with great force. The injuries were also much longer in length. In addition the deceased had four long bruises on the chest and 16 bruises on the whole of the back varying from 10 cm to 22 cm. Thus in all he had 20 bruises on the back and chest. He had three linear bruises on the left upper limbs and five on the left forearm i.e. eight bruises on the left upper limb. He had one bruise on the left elbow, four bruises on right shoulder and through and through incised wound on thumb and index finger reaching to the middle of palm. The index finger was broken in base. Similar incised wound was found in the middle and ring finger reaching middle of palm. The deceased also had four incised wounds on the left leg and three incised wounds on the right leg. Thus it is apparent that the deceased had suffered multiple injuries. The injuries on the left hand could have been caused while fending off an attack of the darat.

The medical evidence also clearly shows that the deceased was in a defence posture that is he was trying to defend himself. The Doctor has clearly stated that the injuries found on the head of the deceased are not possible in lying posture meaning thereby that these injuries were given while he was standing. However, no such question has been put in respect of the other injuries of the legs, chest, arms etc. and these injuries could have been caused in lying posture also. The Doctor has clearly denied that each of the injuries could be caused when the person tried to rescue himself. The version that Surjit Singh and Jaswant Singh acted in self defence is totally unbelievable. The injuries on the person of the deceased are consistent with the case put up by the prosecution that first he was beaten up with sticks and darat near the fence, then dragged across the mustard field and the path to the courtyard of the accused and then tied to a tree like an animal.

It would also be pertinent to mention that the evidence of Dr. Kulbhushan Sood PW-20 also shows that the injuries in question could be caused with sticks Ext.P-16 and P-17, darat Ext.P-13 and also stick Ext.P-6 if less force was used. However, he has clearly stated that the injuries cannot be caused with stick Ext.P-7 and iron rod Ext.P-2.

The next question which arises for decision is whether only Surjit and Jaswant were present or all the accused were present. The eye-witnesses have named all the accused. Their testimony in this regard is challenged mainly on the ground that the relations between the two sides were inimical and therefore the prosecution witnesses want to rope in the entire family of the accused. Previous inimical relations are like a double edged sword. They also provide the motive for the offence but in certain cases the prosecution may want to involve certain persons of the other party who might not have been present. In the present case both the eye-witnesses PWs 1 & 2 named each and everyone of the accused. All the accused were known to the witnesses. It is also not denied that all the six accused live together in one house. Therefore, in natural course they would have been in their house on the night of the occurrence. By setting up the plea of alibi these four accused want to show that they were not present at the scene of occurrence but had gone elsewhere. In the present case we are of the opinion that the prosecution succeeded in discharging the initial burden cast on it to show that the accused were present on the spot. Therefore, it was incumbent on the accused who have adopted the plea of alibi to prove it with absolute certainty so as to exclude the possibility of their presence at the place of occurrence.

The Apex court in Binay Kumar Singh and others Vs. State of Bihar, held as follows:

The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counterevidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey Vs. State of Uttar Pradesh, ; State of Maharashtra Vs. Narsingrao Gangaram Pimple,

It is obvious that the plea of alibi must be proved with certainty so as to completely exclude the possibility of the presence of persons concerned at the place of occurrence.

Examining the evidence led by the accused in the present case, we find that the accused have miserably failed to even remotely prove their plea of alibi. DW-1 Pawan Kumar is the witness to support the plea of alibi set up by the accused Surinder and Kartar. According to him he visited the house of Suresh to meet Anita sister of the accused on 17.3.2003. At that time Kartar and Surinder were present. He returned after half an hour. He has not stated the time he went to the house of Suresh Kumar and at what time he returned from there. He also could not state in what circumstances the accident in which Anita had suffered injuries took place. This itself makes his statement doubtful. In normal circumstances any person who goes to inquire about the health of an accident victim will find out the details of the manner in which the accident happened. Once the accused had set-up the plea of alibi they should have proved what is the distance of the house of Suresh Kumar from the scene of occurrence and also proved that it was impossible for them to have reached the spot at the time when incident took place. There is nothing in the statement of Pawan Kumar to show as to at what time he visited the house of Suresh. Next morning he was told that Surinder and Kartar had gone. It would be pertinent to mention that in cross examination of PW-12 Jivan Lal a suggestion was put to him by the defence that the distance between village Durang where the incident took place and Karyara that is the place where the sister of accused Anita resides with her husband Suresh is 10 to 12 kms. This distance even on foot can be covered within two hours. The evidence does not in any manner prove the plea of alibi set up by the accused Kartar and Surinder. There is no explanation as to why the defence did not examine Suresh Kumar or Anita who were the most important witnesses to prove the defence of alibi.

Similarly the defence of Rajnikant and Kapil Dev can also not be accepted. PW-2 Preeto stated that she attended a Katha in the house of Kaushlaya mother-in-law of Rajnikant and at that time Rajnikant and Kapil Dev were present there. What time she attended the katha and what time she left the house of Kaushalaya has not been mentioned. The accused have also failed to show that even if they were present on 17.3.2003 in the house of the in-laws of Rajnikant they could not have returned to their home later in the evening.

It has been urged on behalf of the accused that there are various contradictions in the statements of the prosecution witnesses. In their statements in Court it has been stated that Pritama Devi first tried to ring from her house but then went to the house of Pradhan Rattani Devi since her own phone was not in order. This does not find mention in the FIR. Similarly neither in the daily diary report nor in the FIR there is any mention of the fact that first Rattani Devi talked to the police and then Pritama Devi talked to the police. In our considered view these have no effect on the merit of the case. When the daily diary report Ext.PW-17/A was recorded, as per the prosecution witnesses, first Rattani Devi talked to the police and thereafter she handed over the phone to Pritama Devi who thereafter talked to the police. The police recorded the report on the basis of the complaint made by Pritama Devi. We cannot loose sight of the fact that this daily diary report was lodged on telephonic information and therefore necessarily the information was brief. The first information is not required to be an encyclopedia of all the facts. Only the gist of the case has to be given. The FIR has been recorded on the basis of this daily diary report itself and therefore a number of facts which came out during the investigation are not mentioned in the same.

It has been further urged that there are various contradictions in the statements of the witnesses. PW-2 Anjana has stated that after making the report through the Pradhan they went to the Police Station and all the accused were present there and the accused were making their report to the Havaldar. PW-22 Inspector Jagdish Chand has however denied the presence of the accused at the Police Station. These in our considered view are minor contradictions which might occur due to lapse of time.

There are certain facts which stand proved on record. The daily diary as well as the Fir were lodged at about 12.30 a.m. The police swung into action and accused Surjit and Jaswant were taken for medical examination at about 4 a.m. in the morning. Copy of the FIR was received by the Judicial Magistrate at about 5.30 a.m. in the morning itself. The names of all the accused find mention in the daily diary as well as the FIR. Here we are dealing with a case of widow who had lost her husband. She and her two minor children could not have concocted the story falsely implicating all the accused in such a short period. They were not being advised or aided by any other relatives. Statement of Rattani Devi corroborates the version of the eye-witnesses because she states that when Pritama Devi came to her house she told her that her husband Raja Ram had been killed by Jaswant Singh, Surjit, Kartar, Kapil Dev, Rajnikant and Surinder Kumar. Therefore, at the first instance all the accused had been named. Therefore, the presence of all the accused at the spot is established and their plea of alibi cannot be accepted.

Sh. Chitkara has urged that the story of the prosecution is not believable since PWs 1&2 and their son and brother respectively did not try to save the deceased or even after injury did not go to attend to him. This contention is without any force. When six persons were beating up the husband of PW-1 she would have been more interested in the safety of her two children and in her own safety. They were in fear of the accused and could not have gone to save the injured. In fact this supports the version of the prosecution that all the six accused were present. If only two accused have been present then the wife and children of the injured might not have been so scared and would have gone to save him.

Sh. Chitkara has urged that since two of the injured suffered injuries and the prosecution has failed to explain these injuries, the statement of the witnesses given u/s 313 Cr.P.C. should be accepted. He has placed reliance on the judgment of the Apex Court in Hate Singh Bhagat Singh Vs. State of Madhya Bharat, wherein it has been held that the statement of accused recorded u/s 313 Cr.P.C. must be treated like any other piece of evidence coming from the mouth of witness and in fact greater value should be attached to it because presumption of innocence is in his favour. In our considered view this judgment has no application to the present case. As held by us above the statement of the eye-witnesses inspires confidence and is corroborated by other material on record. Even if we discount the recovery of the iron rod and one of the sticks the medical evidence clearly shows that the deceased suffered injuries which could have been caused with the darat and the bamboo sticks which have been admitted in evidence, recovery of which is proved in accordance with law.

Reliance placed by the appellants on the judgment of the Apex court in Nagarathinam and Ors. v. State Rep. by Inspector of Police 2006 (2) Cri 95 (SC), is also totally misplaced. In the present case only two of the accused had suffered very minor injuries and these injuries could have easily been caused while the deceased was trying to protect himself. In fact this has been stated by the prosecution witnesses PW-1 and PW-2.

It is lastly contended that even if the prosecution case is taken to be correct, no case of murder is made out and at best the common object of the accused was to belabour the deceased and not to kill him. In this regard reliance is placed on the judgment of the Apex Court in Sita Ram and others Vs. State of U.P.,

It is also urged that since no special role has been attributed to each of the accused. There is nothing to show that an unlawful assembly had been formed and what was the common intention of the unlawful assembly. Reliance is placed on Musakhan and Others Vs. State of Maharashtra, Pyarey and Ors. v. State of U.P. 2004 SCC (Cri) 430 and Mangal Singh and Ors. v. State of Bihar 2004 (3) Cri 352.

There can be no quarrel with the proposition of law that if an

innocent by stander to an occurrence even if part of an unlawful assembly cannot be held guilty of the main crime. However, in the present case both PWs 1 & 2 have clearly stated that all the accused were mercilessly beating the deceased with a darat and sticks and despite the entreaties of the wife and the children of the injured they did not desist. After beating the accused near the fence they dragged him like an animal across the path and the sarson field and tied him to a tree. In such an event it is apparent that the common object of all the accused person was nothing but to kill the deceased. They had gathered together with lethal weapons in their hand and mercilessly assaulted the deceased. They were six against one but continue to beat the deceased. Reference may be made to the judgment of the Apex Court in In the Matter of Rachamreddi Chenna Reddy and Others Vs. State of Andhra Pradesh, wherein the Apex court held as follows:

...The number of injuries on the deceased as per the postmortem report corroborates the oral testimony. The manner in which the accused persons appeared at the scene of occurrence with lethal weapons in their hands and mercilessly assaulted the deceased after surrounding him clearly exhibits their common object was nothing but to kill the deceased, and therefore, we see no infirmity with the judgment of the learned Sessions Judge as affirmed by the High Court in appeal.

The apex court in Bhargavan and others v. State of Kerala AIR 2004 SC 1058, while dealing with Section 149 IPC held as follows:

Another plea which was emphasized relates to the question whether Section 149, I.P.C. has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ''object'' means the purpose or design and, in order to make it ''common'', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ''in prosecution of common object'' as appearing in Section 149 have to be strictly construed as equivalent to ''in order to attain the common object''. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, I.P.C. may be different on different members of the same assembly.

''Common object'' is different from a ''common intention'' as it does not require a prior concept and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ''common object'' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.

Section 149, I.P.C. consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word ''knew'' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of ''might have been known''. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and Others Vs. State of Mysore,

Even if for the sake of argument it is accepted that initially the intention of the unlawful assembly was not to murder the accused, the acts committed thereafter and the behaviour of the accused clearly show that they knew that the bodily injuries they were inflicting on the accused could cumulatively cause his death and their action was so imminently dangerous that the death would definitely be caused.

The case of the appellants is also not covered under Exception 4 to Section 300 IPC because even if it be accepted as a matter of fact that it was the deceased who went towards the land of the accused and therefore there was not pre-meditation and there was a sudden quarrel then also the six accused by ganging up together have taken undue advantage and also acted in a cruel and unusual manner by tethering the deceased to a tree and then beating him and as such they are not entitled to the benefit of Exception 4.

In view of the entire discussion hereinabove, we are of the considered view that the learned trial court rightly convicted the accused. No ground whatsoever is made out for their acquittal and we find no reason to interfere in the judgment passed by the learned trial Court. All the appeals are accordingly dismissed.