V.S. Sirpurkar, J. - (1.) This Criminal Appeal is at the instance of two accused persons, who stand convicted of the offences under Section Maharashtra Control by Trial Court and the High Court. As many as seven persons were tried for the offences under Sections 147, 148 & Sections 325 and 323 read with Section 149 of the Indian Penal Code (hereinafter referred to as "IPC" for short) on the allegation that they formed an unlawful assembly and in pursuance of the common object thereof, committed murder of Virendera Singh (the deceased), who was serving as a Patwari. In that process, one Lokendra Singh, his brother, was also injured.
(2.) Initially, the Sessions Judge convicted accused Murli (A-1), Heera (A-2), Bheru (A-3), Mohan Lal (A-4), Chhittar (A-5), Kanwar Lal (A-6) and Bhanwar Lal (A-7) for the offences for which they were charged. Three separate appeals came to be filed on behalf of the accused, they being D.B. Criminal Appeal No. 248 of 2000, D.B. Criminal Appeal No. 252 of 2000 and D.B. Criminal Appeal No. 309 of 2000. The High Court, ultimately, allowed the D.B. Criminal Appeal No. 248 of 2000 and D.B. Criminal Appeal No. 309 of 2000. The High Court dismissed the D.B. Criminal Appeal No. 252 of 2000 filed by Murli (A-1) and Heera (A-2), but allowed the same insofar as Chhittar (A-3) was concerned. We are, therefore, concerned only with two accused persons, i.e., Murli (A-1) and Heera (A-2), who are the appellants in the present Appeal, the rest of the accused having been acquitted by the High Court.
(3.) The prosecution story, in short, is as under. The incident is dated 14.9.1987. Lokendra Singh (PW-1) filed a report in the Police Station that while his elder brother Virendra and one Badri Dhakar were standing at the Paan Shop of Latur Mali at Bundi Road, Heera S/o Hardev Gujjar, who was armed with Gandasa, Murli S/o Sunder Brahmin, who was armed with a Lathi and one other person, who was also armed with a Lathi came near them at Paan Shop. They abused his brother Virendra Singh, whereupon he (Lokendra Singh) and Virendra Singh asked them not to mishbehave. Just then, 6-7 persons armed with Lathies, Farsa, Gandasi and knifes cornered Virendra Singh in a lane. Murli gave a lathi blow on his head and then all of them started shouting, expressing their intention to kill him and started assaulting Virendra Singh with various weapons. Virendra Singh fell down there itself. Then also, he was assaulted by Murli and one other person, though Badri Dhakar tried to stop them, which was futile. After the incident, all of them boarded one tractor of red colour and went away towards Kota Road, shouting 'Jai'. When PW-1 Lokendra Singh saw Virendra Singh, he had already died and his head and face were injured. He had seen those persons in the light and he could identify them. On this basis, the offence was registered at the Police Station. After the usual investigation, all accused persons excepting Bhanwar Lal (A-7) were arrested and the chargesheet came to be filed against the arrested accused persons, wherein Bhanwar Lal (A-7) was shown as an absconder. The investigation was kept pending against him. The matter was committed to Sessions Court, Bundi. When the trial commenced before the Sessions Judge, Bhanwar Lal (A-7) was also arrested and a chargesheet came to be filed against him after about 3 years of the first chargesheet on 2.1.1990. His case was also committed to the same Court. He was also charged for the same offences, with which the earlier accused persons were charged on 22.6.1988. The charge against Bhanwar Lal (A-7) was framed on 8.2.1990. All the accused abjured their guilt. The witnesses, who were earlier examined like Lokendra Singh (PW-1), Badri Lal (PW-2) were recalled. The evidence of all the witnesses, whose evidence was recorded earlier, was then recorded again. Ultimately, the Sessions Judge found all the accused persons guilty. The prosecution mainly relied on the evidence of Lokendra Singh (PW-1) and Badri Lal (PW-2). During the investigation, the Test Identification Parade was also held since barring the two appellants, no other name was mentioned in the First Information Report. The evidence of the Magistrate was also recorded. ;