- (1.) Criminal Appeal No. 56 of 1974 by Maharaj Singh and Hotam Singh sons of Kanchana, and Criminal Appeal No. 280 of 1974 by Khilku Singh alias Ajmer Singh, are directed against a common judgment, dated December 17, 1973, of the Rajasthan High Court, whereby the acquittal of these three appellants recorded by the trial Court, was reversed and each of them was convicted under Section 302 read with Section 34, Penal Code, for the murder of Gupta and sentenced to imprisonment for life. The appeals arise out of these facts : Three or four days before Deepawali, on October 27, 1967, Gupta deceased was proceeding in the company of the Sarpanch Jhandel Singh, Mohan Singh, Durge, Kanhaiya, Mohanle and Prabhu Kumar of village Soha to village Bari for making purchases for the coming Deepawali festival. At Kanchanpur Tonga Stand, they were looking for a tonga for going to Bari. The appellants Maharaj Singh, Hotam Singh and Khilku (hereinafter referred to as the accused) came there and caught hold of Gupta and forcibly took him to a Chabutra. Soon thereafter, on his return to Kanchanpur from village Maheshara, where he had gone for begging, Munshi, brother of Gupta, was informed by a boy in front of the Chakki of Raghubir Singh, that Gupta had been caught and forcibly taken away by the accused with them. Munshi then went to the house of the accused and saw Gupta tied there to a Neem tree with a rope. Munshi and his companions, Jhandel Singh and Mohan Singh etc. entreated the accused to release Gupta. The accused told them that Gupta had stolen their Bajra crop and they would release him only if 50 maunds of Bajra grain were given to them, otherwise they would take him to Dholpur Police Station. Jhandel Singh asked the accused persons to either allow Gupta to take oath and state the truth regarding the charge of thefts, or, in the alternative, the accused should take the oath and then take away the Bajra which would be supplied. This offer was not accepted by the accused and they did not release Gupta but forcibly took him to the Haveli of the Thakurs where the accused were residing. Munshi and Kanhaiya followed the accused and Gupta to the house of the accused. Munshi and Kanhaiya wanted to follow the accused and the deceased into the Haveli but were not allowed to do so by the accused. After some time, all the three accused came out of the Haveli and brought out Gupta whose hands had been tied with a rope and the rope was handled by Maharaj Singh. Khilku was armed with a muzzle-loading gun and Hotam Singh had a country-made pistol with him. Bigha (P. W. 11) joined Munshi and Kanhaiya. All these three entreated the accused, in vain, to release Gupta. The accused then forcibly marched away Gupta towards Dholpur. Munshi, Kanhaiya and Bigha followed them. They took Gupta to a distance of about two furlongs from the village where Hotam accused told the other accused that it was a proper place for the purpose. Thereupon, all the three accused forcibly took Gupta into the field under Arhar crop. Munshi, Bigha and Kanhaiya, also, wanted to follow the accused, but under threat of dire consequences, were made to halt on the ridge of the field. After going a few paces into the field, Hotam Singh fired two shots. On being hit, Gupta fell down. Thinking that Gupta was still alive, Khilku fired his gun, wounding the deceased on the neck. Khilku re-loaded his gun and fired again towards Gupta. Thereafter, all the three accused ran away from the spot. Munshi then went to the Police Station, Bari, 61/2 miles away, and ledged the First Information Report (Ex. P-10) there at 3-30 p. m. The Investigating Police Officer came to the spot, prepared the inquest report and sent the body for post-mortem examination. Dr. R. B. Nigam (P. W. 13) found these five external injuries on the dead-body : " (1) Blackish burn 3/4" x 1/2" behind the left ear. (2) Blackish burn 1" x 1/2" on the outer, and upper margin of left ear. (3) Gun-shot wound 1/2" x 1/4" with blackish margins up to 3/4" all round the wound on the left side of neck behind the angle of mendible causing fracture of the body of the left mandible and fracture of the first molar tooth of left side. (4) Gun-shot wound 11/4" x 11/2" circular entering the abdominal cavity on the left side of abdomen 5" away and parallel to umblicus with gun-powder burn nearly 3" all round the wound. (5) Gun-shot wound 11/4" x 11/4" circular entering the abdominal cavity on left side of the abdomen in the mid axillary in the kidney region with blackish gun powder stain nearly 3" all round the wound. These three gun-shot wounds had inverted margins and were the wounds of entry. There was no exit wound." In the opinion of Dr. Nigam, Gupta died due to severe haemorrhage and shock resulting from gun-shot injuries which were sufficient in the ordinary course of nature to cause the death. The Doctor also found in the abdominal cavity two cardboard Khokhas, 6 cardboard round pieces and 72 small pellets. In the opinion of the Doctor, the shots which caused the fatal injuries had been fired from a point-blank range. He further opined that two separate fire-arms must have been used in inflicting the gun-shot injuries found on the body of Gupta. In cross-examination, Dr. Nigam clarified that the injuries found on the body of the deceased were the result of not more than three gunfires.
(2.) Maharaj Singh and Hotam Singh were arrested on January 11, 1968 from a nearby jungle. Maharaj Singh and Hotam Singh were first put on trial. Khilku had absconded. He was arrested later on November 28, 1968 and was tried separately. The Sessions Judge acquitted the accused persons in both the trials. The State went in appeal against those acquittals to the High Court with the aforesaid result. Hence, these appeals which are being disposed of by a common judgment.
(3.) At the trial of Maharaj Singh and Hotam Singh, the statements of Kanhaiya (P. W. 5) and Bigha (P. W. 11) recorded by the Committing Magistrate, were transferred under Section 288, Cr. P. C. to the Sessions record. Munshi was also examined at that trial. At the trial of Khilku Singh, Munshi alone was examined as an eye-witness. At both the trials, Munshi had substantially supported the prosecution story set out above. Six prosecution witnesses, namely, P. W. 1, P. W. 2. P. W. 3, P. W. 4, P. W. 5 and P. W. 11 turned hostile and were cross-examined by the Public Prosecutor.;