(2.)THESE two appeals arise out of a common judgment and order passed by the learned additional sessions judge, Gurgaon, convicting the appellants in sessions case no. 32 of 1995 and sentenced them to suffer rigorous imprisonment on the following sections of law as under:
The substantive sentences were ordered to run concurrently. By the aforesaid judgment all the nine accused have been convicted. The convictions and sentences have been confirmed by the High Court. Criminal appeal no. 73 of 2002 is preferred by accused Raghunath and criminal appeal no. 74 of 2002 is preferred by the remaining eight accused, namely, Ram Kishan s/o. Ram Pat, Anil @ Ajay Kumar s/o Ram Kishan, Manohar Lal s/o. Bohru, Desh Raj s/o. Ram Pat, Siri Chand s/o Bohru, Satish s/o. Siri Chand, Sunil s/o Ram Kishan and Jagmal s/o. Ram Pat.
The complainant parties are close relatives of deceased Kundan Lal. The accused are also inter-related (accused nos. 2 and 6 being the sons of accused no. 1 Ram Kishan, accused nos. 3 and 7 brothers of accused no. 1, accused nos. 4 and 9 inter-se brothers, accused no. 5 being the son of accused no. 4), except accused no. 8.
Before adverting to the points urged by counsel for the appellants we may, at this stage, notice that there is a rift between the two groups. While considering the evidence of witnesses, particularly of PWs 1 and 2, one could not loose sight that it is in the evidence of the prosecution that the deceased Kundan Lai had contested the election of sarpanch against accused Manohar Lai earlier. It is also in the evidence of the prosecution that just a day after the date of incident panchayat elections were to be held. The fight for the post of sarpanch was between Raj Singh and one Satbir. The complainant party was supporting Raj Singh and the accused were the supporters of Satbir. It is also in the evidence on record that both criminal and civil litigation were pending between the complainant and the accused groups. Therefore, the rift between the complainant and the accused groups was writ large prior to the date of the incident. In such a situation one should be cautious while appreciating the evidence of the prosecution witnesses.
(3.)THE prosecution case, as revealed in the FIR, was set in motion on receipt of information received from Badshahpur police station through wireless that there was a fight in village Teekli and the injured were admitted in the hospital. On the basis of the said information, ASI Bhup Singh had noted the farad bayan. After recording the statement of the complainant party, a prima facie case was found and a case under sections 148, 323/302/325/452/436/427 read with section 149 of the Indian Penal Code was registered.
Pw-2 complainant, Sumer Singh lodged the FIR stating that on 18.12.1994, at about 9.30 p.m., his wife Smt. Indrawati, father Kundan Lal, mother Smt. Premwati, brothers Sher Singh and Sunder Lai, and Smt. Munni wife of Sher Singh were present in their house. Accused Ram Kishan, Sunil, Anil, Deshraj, Jagmal, Raghunath, Siri Chand, Satish, Manohar Lai, lass with lathis and stones entered the house of the deceased Kundan Lal by breaking the door open and on entering accused Anil Kumar inflicted a lathi blow which fell on the head of Kundan Lal (deceased) father of the plainant, as a result of which he fell on the ground. Thereafter, accused Ram Kishan, Sunil, Deshraj, Jagmal, Raghunath, Siri Chand, Satish and Manohar Lai caused injuries indiscriminately with lathis and stones to the complainant, his mother Smt. Parmeshwari, his wife Smt. Indira, his brothers Sunder Lal and Sher Singh and brother's wife Smt. Munni Bai. On hearing a noise from the members of the complainant party, Sube Singh son of Makhan Lal, Karan Singh son of Pyare Lai, Ram Khilari son of Ami Chand and Satbir Singh son of Chhatter Singh, all resident of the same village, came to the spot when the accused set on fire a heap of cow dung cakes (Bitoras) lying on the roof of the house and also the bundles of fodder lying near the chaff-cutting machine. It is further stated that accused Ram Kishan gave a lalkara exhorting that members of the complainant party be burnt alive. Karan Singh and Sube Singh when tried to intervene also sustained injuries from the accused. It is further stated that the complainant party also caused injuries to Ram Kishan in self-defence. In course of the investigation, the IO found prima facie case against the accused-appellants' under the aforesaid sections and submitted the challan. The prosecution mainly relied on the evidence of two injured witnesses, Pw1 Karan Singh son of Pyare Lal and Pw-2 Sumer Singh son of deceased Kundan Lal. Injured Smt. Parmeshwari, Smt. Indira, Sunder Lal, Sher Singh and Smt. Munni Bai were not examined.