- (1.) These appeals are filed against the common final judgment and order dated 26.04.2002 passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in D.B. Criminal Appeal Nos. 504, 533 and 673 of 1995 whereby the High Court disposed of the appeals acquitting Karan Singh, Laxman Raigar, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar of all the charges and altered the conviction and sentence of Shivraj Singh, Banney Singh and Arjun Singh from Sections 302/149 IPC and 307/149 IPC to Section 302/34 and 307/34 IPC passed by the trial Court.
(2.) Brief facts: (a) On 24.12.1991, at about 09:30 a.m., an information was received by the In-charge, Police Out-post Anwa that cross firing had taken place between the Rajputs of that village. After recording the said information in Rojnamcha (Ex. P31), immediately the police proceeded towards the spot and recorded Parchabayan of injured Himmat Raj Singh (Ex. P32) at about 11.40 a.m. It was stated by Himmat Raj Singh (since deceased) that at 9.30 a.m., when he was standing outside his house, Arjun Singh fired at him from a muzzle loaded gun from the roof of Karan Singh thereby 2-3 bullets hit him on the left hand and another 2-3 hit his abdomen and left thigh. On hearing his cries, two of his brothers, namely, Raghuraj Singh (since deceased) and Raj Singh (PW-2) came there and took him inside the house and after leaving him there, when they were going to inform the police at Police out-post, Anwa, Bheem Singh and Gajender Singh (who are now absconding), Banney Singh, Karan Singh and Shivraj Singh fired gunshots at them, as a result of which, both of them received injuries. Thereafter, accused Bahadur Singh came with a gandassa. The other accused, Laxman Raigar also jumped into their house. It was also stated that Smt. Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar were also present on the roof of Karan Singh and they tried to kill the other family members of the deceased with deadly weapons. (b) The moment Raghuraj Singh and Raj Singh (PW-2) received injuries, Roop Singh, their father immediately rushed to the Police Out-post to inform the Police about the incident. The police officials reached at the spot and on the basis of the statement of Himmat Raj Singh, a First Information Report (in short 'the FIR') being No. 228/1991 was registered against the accused persons for the offences punishable under Sections 307, 147, 148 and 149 IPC. The injured persons, Raghuraj Singh, Himmat Raj Singh, Dhiraj Raj Singh and Raj Singh were taken to the M.B.S. Hospital at Kota for treatment. (c) Shri Ajay Kumar Gupta, (PW-18), Munsif and Judicial Magistrate (North), Kota recorded the statements of Himmat Raj Singh and Raj Singh (PW-2). Since Raghuraj Singh was not medically fit to make a statement, his statement was not recorded. On the same day, Raghuraj Singh died in the Hospital, therefore, offence punishable under Section 302 IPC was added. On 29.01.1992, Himmat Raj Singh also died in the Hospital. After due investigation, the police submitted four charge sheets at different stages against Arjun Singh, Banney Singh, Shivraj Singh, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Karan Singh and Laxman Raigar. (d) On 07.09.1995, the Additional Sessions Judge, Kota, after examining 30 prosecution witnesses and 8 defence witnesses convicted Karan Singh under Sections 148, 302/149, 307/149 IPC and Section 3/27 of the Arms Act, 1959, Shivraj Singh, Banney Singh and Arjun Singh under Sections 148, 302/149, 307/149 IPC and Smt. Swaroop Bai, Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Laxman Raigar and Bahadur Singh under Sections 148, 302/149, 307/149 and 452 IPC and sentenced all of them to undergo rigorous imprisonment. (e) Aggrieved by the judgment of the trial Court, Arjun Singh, Banney Singh, Shivraj Singh, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar filed D.B. Criminal Appeal No. 504 of 1995, Laxman Raigar filed D.B. Criminal Appeal No. 673 of 1995, Karan Singh filed D.B. Criminal Appeal No. 533 of 1995 and Roop Singh-the complainant, filed D.B. Criminal Revision Petition No. 250 of 1996 before the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur. (f) On 26.04.2002, the High Court, by a common impugned judgment, set aside the order of conviction and sentence passed by the trial Judge against Karan Singh, Laxman Raigar, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar and acquitted them of all the charges. As regards Arjun Singh, Banney Singh and Shivraj Singh, their conviction and sentences under Sections 302/149 and 307/149 IPC were altered to Sections 302/34 and 307/34 IPC. (g) Against the acquitted persons, the State of Rajasthan filed Criminal Appeal Nos. 552-554 of 2003, Raj Singh, son of the Complainant-Roop Singh, who died during the pendency of the case, filed Criminal Appeal Nos. 555-557 of 2003. Against the order of conviction and sentence, accused Arjun Singh, Banney Singh and Shivraj Singh filed Criminal Appeal No. 558 of 2003 before this Court by way of special leave petitions.
(3.) Heard Mr. S.R. Bajwa, learned senior counsel for the convicted appellants, Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan and Ms. Aishwarya Bhatti, learned counsel for the son of the complainant. Issues for consideration:;