- (1.) This is an appeal by four persons who have been convicted and sentenced under Section 302 read with 149 IPC, each of whom are to suffer life imprisonment and fine of Rs.500/- together with various other lesser offences all of which were ordered to run concurrently. Two persons Kamal Kumar and Om Prakash lost their lives in an incident which took place on 11th November, 1999. 11 persons were charge- sheeted, one of whom, Shiv Lal, died during trial. The learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu convicted the other 10 accused of the murder of Kamal Kumar and Om Prakash and sentenced all of them to life imprisonment. In the judgment impugned in this appeal, six persons were acquitted as they were not named by the star witness Radhey Shyam - PW.3 in the pancha bayan. 4 persons, namely, Badru Ram, Sita Ram, Ramavtar and Lakshman were, however, found guilty by the High Court and were sentenced under Section 302 IPC to life imprisonment.
(2.) Heard Mr. Vidya Dhar Gaur and Mr. G.S. Mani, learned Amicus Curiae for the appellants and Mr. Shovan Mishra, learned counsel for the State.
(3.) The complainant Radhey Shyam - PW.3, made a complaint on 12th November, 1999 that he was one of four brothers, two of whom were murdered in the incident which took place at 11.15 p.m. on the previous day, i.e., on 11th November, 1999. In his evidence, he stated: "It was around 11.15 pm on 11th November 1999. We were four brothers, I Radhey Shyam was the eldest, Om Prakash was younger to me, Kamal Kumar was younger to Om Prakash and Matu Ram was the youngest. Bhagwana Ram is my elder Uncle. Bhagwana Ram has agricultural land and electric well near our Dhani. We have taken the land of Bhagwana for cultivation on half-sharing basis. On the date of incident, at 11.15 pm I was sitting near the well and was looking after the electricity. We had sown gobhi (vegetable) in the field and my brothers Kamal Kumar and Om Prakash were watering the fields. From the side of Mandrella Road near the pyao, loud noises were heard. I came out and saw that my brothers Kamal and Om Prakash. were shouting "Bhai, hamare ko bachao. Hamare ko Badru Ram, uske ladke Shiv Lal, Sita Ram, Ramavtar, Lakshman, Shish Ram Mahesh aur unki aurate Nanchi, Nanadi, Jamuna aur Lalita hume mar rahe hain. Aakar ke hame jaldi bachao." Then I started calling for Rakesh, Chaju Ram, Gopi Ram, Babu Lal, Ram Singh that "my brothers are being beaten. Come fast" and reached my brothers at the spot of incidence. On reaching there I saw that Badru had lathi in his hand, Shiv Lal had lathi in his hand, Sita Ram had lathi in his hand, Ramavtar had barchi-like axe in his hand, Lakshman had gandasi in his hand, Mahesh and Shish Ram had lathis in their hands and all the four women Nanchi, Nanadi, Yamuna, Lalita had lathis in their hands. All these were beating my brothers. Ramavtar and Lakshman were continuously hitting with barchi-like gandasi and axe. I said that "why are you beating them. Leave them." Shiv Lal, Badru Ram, Nanchi Devi, Sita Ram then left Kamal and Om Prakash and stated attacking me. I received several injuries on my head and my hand was broken. They also made several attacks to kill me. When my brother's son Rakesh came there to our rescue then these persons started to hit him too. In the meantime, Gopi Ram, Chaju Ram, Babu LaI, Ram Singh reached the spot of incident. On seeing them, the accused persons left us and ran away. Then Gopi LaI, Babu Ram etc. brought the vehicle of Mahinder and took me, Om Prakash, Kamal and Rakesh to the B.D. Hospital in the jeep. My brothers Kamal Kumar and Om Prakash died on the way due to their injuries. I and Rakesh were admitted to the Khaitan Hospital, Jhunjhunu. Accused persons had beaten us on the Mandrella Road near the well and pyao. At about 2.30 am police came to B. D. Hospital, Jhunjhunu. My statement was recorded and the same is exhibit P- 9. When the statement was read out to the witness he himself stated that this was the statement which he had given to the Police. Due to injuries caused during the incident, I was not in a position to put my signatures therefore I put my thumb impression on my statement exhibit P-9 and also on the police proceeding related documents I had put my thumb impression. My medical examination and X-ray was done. Police seized and sealed and marked my blood stained clothes one pant and one shirt vide furd exhibit P-10 on which my thumb impression is at point 'X'. Accused wanted to grab the land of our uncle Bhagwana Ram and were unhappy with us. Therefore, they beat me and my brothers. I know the accused persons out of which Jamuna and Lalita are present in the Court. I also know the rest of the accused persons.";