SHARMA, J. - (1.) ALL the thirteen appellants who have filed these appeals, were initially tried by the learned Sessions Judge Bharatpur in Sessions Case No. 162/93 arose from the FIR No. 204/93 registered at Police Station Nadbai Distt. Bharatpur for offences punishable under Sections 147, 302 and 302 read with 149 IPC. Thereafter appellant Hari Singh was declared absconder on May 5, 1994 and after his arrest, separate trial was ordered. Learned Sessions Judge Bharatpur vide judgment dated February 20, 1996 convicted appellants Padam, Veer Singh, Sangram, Panchya, Man Singh, Rammo, Bijendra Singh, Ajab Singh, Dharab Singh, Roop Singh, Dauji and Kishan Lal under Sections 147 and 302 read with Section 149 IPC and sentenced each of them against Section 147 IPC to undergo one year rigorous imprisonment and against Section 302 read with Section 149 IPC to undergo imprisonment for life. Vide judgment dated June 14, 2000 the appellant Hari Singh was also convicted by the learned Additional Sessions Judge No. 2 Bharatpur under Sections 147 and 302 read with Section 149 IPC and sentenced against Section 147 IPC to undergo rigorous imprisonment for one year and to pay fine in the sum of Rs. 500/- (in default to further undergo one month R. I.) and against Section 302 read with Section 149 IPC to undergo imprisonment for life and to pay fine in the sum of Rs. 1000/- (in default to further undergo two months R. I. ). Since these appeals arise out of a common FIR and the evidence adduced against the appellants is also common, we heard them analogously and propose to dispose them by this common judgment.
(2.) BRIEFLY put, the facts may be summarised as follows- The two deceased Gopal and Prathvi Singh, on fateful day of July 1, 1993 around 8 a. m. were together going on a Motor Cycle towards village Nadbai. When they reached near Dharamshala of Kishori Master, they found all the appellants armed with lathies, who gathered there with a common object to kill Gopal and Prathvi Singh. In furtherance to this common object all the appellants surrounded Gopal and Prathvi Singh, prevented them from escape and inflicted on them lathi blows mercilessly. Appellants Hari Singh and Man Singh run them over by Motor Cycle and after found them dead left the place of incident by shouting victory slogans. FIR of the occurrence was instituted by Sher Singh (PW. 1) with the Police Station Nadhai on July 1, 1993 at 12. 15 p. m. according to which Sher Singh, his son Gajendra Singh (PW. 3) and nephew Ramveer Singh happened to be there while going in a jeep and they had seen the incident from their own eyes. Names of other eye witnesses Makhan (PW. 5) and Devi Singh (PW. 6) were also incorporated in the FIR. It was also stated that dead body of Gopal was lying in the Govt. Hospital Bharatpur while Prathvi Singh was admitted in the said hospital in a critical condition. The Police Station Nadbai registered FIR No. 204/93 (Ex. P. 2) for the offences under Sections 147, 149, 341, 323, 307 and 302 IPC and investigation commenced. Site was inspected vide memo Ex. P. 3. Inquest Report was drawn vide Ex. P. 6. Deadbody of Gopal was subjected to postmortem. Report of Post mortem is Ex. P. 47. Injuries sustained by Prathvi Singh were scanned vide report Ex. P. 45. Prathvi Singh died at SMS Hospital Jaipur on July 8, 1993. The Inquest report is Ex. P. 53. Postmortem report of deadbody of Prathvi Singh is Ex. P. 54. Appellants gave information under Section 27 of the Evidence Act and at the instance of the appellants lathies were recovered. The Forensic Science Laboratory Report is Ex. P. 72. On conclusion of the investigation the charge sheet was filed against the appellants. In due course the case came up for trial before the learned Sessions Judge Bharatpur. Charges under Sections 147, 302 and 302 read with Section 149 IPC were framed against all the appellants who denied the charges and claimed trial. In Sessions Case No. 162/1993 the prosecution examined as many as 17 witnesses thereafter explanation of the appellants under Section 313 Cr. P. C. was recorded. The appellants denied the allegations and claimed innocence. As many as 8 defence witnesses were produced by the appellants. In Sessions Case No. 11/1996 the prosecution examined fifteen witnesses. In the statement under Section 313 Cr. P. C. appellant Hari Singh also claimed innocence and pleaded that he was falsely implicated on account of election enmity. Witness Sahib Singh (DW. 1) was examined by the appellant Hari Singh in support of his defence. On hearing the final submissions the courts below convicted and sentenced all the appellants as indicated hereinabove. The two courts below based the conviction of the appellants principally on the evidence of Sher Singh (PW. 1), Gajendra Singh (PW. 3), Makhan (PW. 5) and Devi Singh (PW. 6 ). The presence of these witnesses on the place of incident has not been doubted and it impelled the courts below to hold these witnesses as eye witnesses of the incident. Mr. A. K. Gupta, learned counsel appearing for the appellants contended that the alleged eye witnesses have attempted to create their presence falsely. Their presence at the scene of occurrence is doubtful. FIR is concocted and fabricated one. Inquest report does not have the FIR number. Delay in recording the statements of the witnesses under Section 161 Cr. P. C. was not explained. Statements of eye witnesses have not been corroborated by the medical evidence. Investigation is tainted. Statement of Prathvi Single (Ex. P. 58) recorded prior to his death under Section 161 Cr. P. C. is concocted one. It was one Bhim Singh (DW. 6) who had taken the two injured persons who were lying abandoned, to Dr. R. P. Gupta (DW. 5) and in view of this defence version the whole prosecution case is demolished. According to learned counsel both the courts below did not properly appreciate the material placed on record and committed illegality in convicting the appellants. We shall deal with the case law cited by the learned counsel at appropriate juncture. Per contra Mr. S. C. Purohit, learned Public Prosecutor and Mr. V. R. Bajwa, learned counsel for the complainant supported the impugned judgments and canvassed that FIR was lodged within four hours of the incident and it contains the names of all the appellants and the eye witnesses. Site plan renders corroboration to the version dished out by the prosecution in the FIR. All the eye witnesses Sher Singh (PW. 1) Gajendra Singh (PW. 3), Makhan Singh (PW. 5), and Devi Singh (PW. 6) also corroborate the prosecution case and their credibility could not be shattered. It is a myth to state that the medical evidence run counter to the version of eye witnesses. Learned counsel placed reliance on various judicial pronoucements.
(3.) BEFORE however, dealing with the contentions raised by the learned counsel for the appellants, we might indicate the nature of the evidence produced by the prosecution in support of its case. We make it clear that we are considering the evidence adduced in Sessions Case No. 162/1993. In the first place there is the evidence of four eye witnesses namely Sher Singh (PW. 1) Gajendra Singh (PW. 3) Makhan Singh (PW. 5) and Devi Singh (PW. 6 ). The evidence of these eye witnesses is said to be corroborated by the dying declaration of deceased Prathvi Singh (Ex. P. 58) and the post mortem reports of the deceased Gopal and Prathvi Singh. Let us now scan the credibility of four eye witnesses coming to the testimony of Sher Singh (PW. 1) it is to be noticed that he is the cousin of deceased Gopal. His father Har Chand and Ram Karan, the father of deceased Gopal were real brothers. He is a chance witness and according to his deposition he was going in his jeep to Bharatpur from his village Kawal alongwith his son Gajendra and nephew Ram Veer Singh on July 1, 1993 around 8 a. m. About hundred steps ahead from his jeep Prathvi Singh and Gopal were going on a motor cycle. When Motor Cycle reached near, the Dharamshala of Kishori Master, all the appellants attacked the Motor Cycle. Prathvi Singh, in order to save their lives turned motor cycle towards the field of Kishori Master but it could not run fast and the appellants who were armed with Hockey and lathies surrounded Prathvi Singh and Gopal and started beating them mercilessly. Appellants Hari Singh and Man Singh run them over by Motor Cycle. Sher Singh and his son Gajendra got stopped their jeep adjacent the Pipal Tree and requested the appellants with the folded hands but the appellants threatened them with dire consequences. Makhan Singh and Devi Singh of village Kawai, who were also standing on road had also seen the incident. After the appellants left the place of occurrence by raising victory slogans praising Giriraj Maharaj, witness Sher Singh alongwith Gajendra Singh, Ram Veer Singh, Makhan Singh and Devi Singh reached near Gopal and Prathvi Singh who were lying unconscious. Thereafter arrangement of Tractor Trolly was made and both the injured were taken to Hospital at village Nadhai. After providing them First Aid the doctor advised to take them to Bharatpur. While the were being taken by Sher Singh, Gajendra, Ajay Singh and Surendra in an Ambulance to Bharatpur, one of the injured Gopal died. Prathvi Singh was admitted in the Hospital at Bharatpur. Leaving the deadbody of Gopal at Bharatpur Hospital, Sher Singh came back to Nadbai and submitted a written report Ex. P. 1 on the basis of which FIR Ex. P. 2 was drawn. He also exhibited the Inquest Report of the deadbody of Gopal Ex. P. 6. He further stated that Prathvi Singh was referred to SMS Hospital Jaipur where he died on July 8, 1993. He is also signatory of Inquest report Ex. P. 7 of the dead body of Prathvi Singh. In his cross examination witness Sher Singh deposed that at the time of drawing Inquest report Ex. P. 6 he identified the deadbody of Gopal Singh. He also deposed that he dictated the Report to Shribhan and reached at Police Station Nadbai at 12. 15 p. m. He denied this suggestion of defence counsel that it was Bheema who had taken the injured, who were lying abandoned, to the Hospital at Nadbai in his Tractor Trolly. Gajendra Singh (PW. 3) almost repeated the version of his father Sher Singh. In his cross-examination he deposed that his statement was recorded by the Police on July 3, 1993. He himself had gone back to the village for arranging Tractor Trolly and this fact was narrated Tractor Trolly and this fact was narrated by him to the police but why it was not incorporated in his police statement he cannot explain. He further stated that injured Gopal Singh and Prathvi Singh could not be taken in the jeep as the jeep was small. He did not care to look at the Trolly whether it was stained with blood or not. He admitted that one Bhim son of Shobha Ram of his village had a Tractor but he denied this suggestion that it was Bhim who took injured Gopal Singh and Prathvi Singh in his Tractor Trolly to Nadbai Hospital. He also denied this suggestion that report of the incident was lodged at Police Station Nadbai around 9. 15 a. m. and it was Dharam Singh ASI who took Gopal Singh and Prathvi Singh to Bharatpur Hospital. ;