SHARMA, J. - (1.) THE appellants were the accused on the file of the learned Additional Session Judge Sambhar Lake, Distt. Jaipur bearing Sessions Case No. 45 of 1992. THEy were found guilty, convicted and sentenced as under: 1. Gopal u/sec. 147 IPC u/sec. 302 IPC u/s. 436/149 IPC Two years R. I. Sentence of death 10 years R. I. and fine of Rs. 10000 (in default to further undergo one year R. I. u/sec. 323 IPC One year R. I. u/s. 324/149 IPC Two years R. I. u/sec. 449 IPC Rigorous Life Imprisonment and fine Rs. 10000 in default to undergo one year R. I. u/sec. 395 IPC 10 year RI and fine of Rs. 10000/- (in default to undergo one year R. I. 2. Mool Chand @ Murli 3. Sagar S/o Rekharam 4. Rameshar S/o Bhuvana 5. Nivan Ram 6. Molak Ram u/sec. 147 IPC u/s. 302/149 IPC u/s. 436/149 IPC Two Year R. I. Rigorous Life Imprisonment 10 years R. I. and fine of Rs. 10,000 (in default to further undergo one year R. I. 7. Rameshwar S/o Mana Ram 8. Bhola Ram u/sec. 323 IPC u/s. 324/149 IPC One year R. I. Two years R. I. 9. Jodha Ram 10. Sheo Ram 11. Babulal 12. Hira Lal 13. Chhittar Mal u/sec. 449 IPC Rigorous Life Imprisonment and and fine Rs. 10,000 in default to undergo one year R. I. 14. Ram Chandra 15. Banna Ram 16. Nathu Ram 17. Bhanwar Lal 18. Dana Ram 19. Surja Ram 20. Prahlad 21. Nanu Ram 22. Sagar S/o Murli 23. Mohan 24. Asha Ram 25. Jagdish u/sec. 395 IPC 10 years R. I. and fine of rs. 10,000/- (in default to undergo one year R. I. All the sentences were directed to run concurrently but the sentences passed in default of making payment of fine were ordered to run one after the other. Accused Khinva Ram and Ladu Ram had died during the trial, therefore, proceedings against them were dropped. Proceedings against accused Sunda Ram being juvenile, were also dropped. Accused Rekha Ram, and Murli son of Sukhdev were acquitted of all the charges.
(2.) LEARNED Additional Sessions Judge Sambharlake made reference (bearing Death Reference No. 1/2000) under Section 366 Cr. P. C. for confirmation of death sentence awarded to accused appellant Gopal, who also assailed the findings of the learned Judge by preferring two appeals under Section 374 (2) Cr. P. C. bearing Nos. D. B. Cr. Jail Appeal No. 200/2000 and D. B. Cr. Appeal No. 186/2000. Other 24 appellants also preferred appeals bearing Nos. D. B. Criminal Appeal No. 187/2000 and 182/2000. Bhoma Ram S/o Ramu Ram who was appellant No. 5 in D. B. Criminal Appeal No. 187/2000 died on July 9, 2000 during the pendency of the appeal. LEARNED counsel Shri Biri Singh made an application to this effect along with the death certificate of Bhola Ram on March 28, 2001. We are satisfied that accused appellant Bhoma Ram son of Ramu Ram is dead, therefore, we drop the proceedings against him. It is well settled that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of Sections 366 and 368 Cr. P. C. The High Court must not only to see that the order passed by the Sessions Court is correct but also to examine the entire evidence itself independently of the Sessions Court's appraisal and assessment of that evidence. Bearing in mind the above principle we may straight-away proceed to state, with brevity, the case of the prosecution presented for our scrutiny. Written report (Ex. P. 1) came to be lodged by informant Nand Lal (PW. 5) with the Police Station Renewal at 3. 45 p. m. on Jan. 16, 1991 stating therein that as many as 60 persons armed with Pharsies attacked the house of his brother Dhanna Lal son of Narain Lal Jat of Basdi Khurd. They gave beating to Dhannalal, undressed the ladies, lit fire to the house and robbed his ornaments and property. An immediate intervention of the police was prayed for by the informant. Police Station Renewal registered a case bearing FIR No. 18/91 u/secs. 147, 148, 149, 436 393/323 IPC and investigation commenced. Head Constable No. 355 Gopal Sharma proceeded towards the place of occurrence. A look at the Inquest Report (Ex. P. 3) occurrence. A look at the Inquest Report (Ex. P. 3) demonstrates that Head Constable gopal Sharma alongwith constables Tulsi Ram and Bhim Singh when reached at the spot, they found the dead body of Dhanna Lal son of Narain. They sent wireless message to higher officials and added Section 302 IPC. At 9. 00 p. m. Nathmal Pareek SHO (PW. 9) reached there and he put his signatures on the Inquest Report, it appears that Head Constable gopal Sharma reached at the place of occurrence at 5 p. m. Post Mortem of the dead body of Dhanna Lal was conducted on January 17, 1991 at 8 a. m. by Dr. Keshav Behari (PW. 6) and Dr. R. S. Shekhawat (PW. 15 ). According to the Post-Mortem Report (Ex. P. 7) deceased Dhanna Lal had sustained as many as 15 injuries out of which two lacerated wounds on left parietal region and right side of forehead, five lacerated wounds on lower lip, left thigh, left forearm, right leg and post aspect 1/3 of left arm, multiple abrasions on left leg, scapular region to sacrum and bruised areas. Bruises on left thigh and left arm. All these injuries were antimortem. Deceased also sustained post mortem burn injuries on right forearm, right thigh and complete right leg on postero lateral aspect and anterior aspect of right foot (dorsal surface ). The cause of death was shock due to fracture of left parietal bone and laceration of the brain tissue and adjoining vessels of the brain. Site was inspected and Memo of site plan was drawn with description. Injury report of Narain Lal (PW. 1) the father of deceased is Ex. P. 8. The accused were arrested and recovery memos of weapons at the instance of the accused persons were drawn. Golden Murkis alleged to have been snatched from the ears of Narain Lal were also recovered. The Forensic Science Laboratory Report is Ex. P. 104. On conclusion of investigation the charge sheet was filed against the appellants and other co-accused persons. In due course the case came up for trial before the learned Additional Sessions Judge Sambharlake. The trial Court framed charges under Sections 147, 302/149, 436/149, 395/149, 324/149 and 460 IPC against the appellants who denied charges and claimed trial. The prosecution examined as many as 18 witnesses. Thereafter explanation of the accused appellants under Sec. 313 Cr. P. C. was recorded. The accused denied the allegations and claimed innocence. Evidence in defence was led by the accused appellants. The learned trial Court after hearing the final submissions convicted and sentenced the accused appellants as indicated hereinabove.
(3.) BEFORE dealing with the submissions advanced by the learned counsel for the appellants we would like to indicate the nature of the evidence led by the prosecution in support of the case. To begin with thee is a central evidence consisting of six eye- witnesses, Narain (PW. 1) Bhura (PW. 2) Smt. Santosh (PW. 3), Manohar (PW. 4), Nand Lal (PW. 5) and Smt. Bhagli (PW. 14), who were allegedly present near the place of occ- urrence. This evidence is sought to be corroborated by SHO Nath Mal Pareek (PW. 9) who recovered the weapons of offence at the instant of the accused appellants. Bhiwa Ram (PW. 7) Bholu Ram (PW. 8) and Sukh Ram (PW. 12) are motbirs of recoveries. Dharam Singh ACJM (PW. 17) conducted test identification parade of Golden Murkies. Let us now scan the credibility of the prosecution witnesses through whom the prosecution has to establish that the case against the appellants has been proved beyond reasonable doubt. Coming to the testimony of Narain (PW. 1) it is to be noticed that he is the father of deceased Dhanna. His injury report is Ex. P. 8 according to which he sustained as many as eleven injuries out of which one is incised wound on right leg, four lacerated wounds on left leg, left thigh, left ear lobule and left forehead region. He also sustained four abrasions on left leg, left thumbs and right leg and a bruises on both sides of back. In this deposition he stated that in the early hours of morning when he, Dhanna, Dhanna's wife, Manna, Manna's wife and Bhura were at their house, about 35 persons armed with lathies, axe, Gainti and Sariya came over there and stationed at the well belonging to Aslya. Thereafter three police persons Bheeva, Talchha and Gopal had a talk with those persons at the well and reached near his house and asked Dhanna about the gun. They searched the house but did not find any gun. When they came out of the house at about 11 a. m. Dhanna told him that he had apprehension of his death from the persons assembled at the well, therefore, he needed protection of police but police persons refused to extend any help to him and went towards the village. All those persons then encircled the house of Dhanna and started pelting stones, Dhanna's wife and Manna entered inside the house and he (Narain) and Bhura remained outside. Manna's wife entered into kitchen. Accused Kheenva lifted Pula (Bundle of dry grass) Asla ignited fire and threw it on the chhappar (shed) of the kitchen. Finding the kitchen in the flames of fire when Manna's wife came out of the kitchen, accused Nathu son of Rekha inflicted lathi blow on her person and Bhonraya son of Asla snatched her golden neckless. Thereafter, Danya son of Mana and Sagrya son of Murlya with the help of gainti, started demolishing the house of Dhanna. Accused Bhanwar and Gopal instigated to dig the roof of the house. Thirteen stone patties (slabs) were thereafter removed. Pulas were ignited with fire by Bhonrya son of Asla and they were thrown inside the roofless structure. Thereafter, they said `dhanna is dead' and they extinguished fire with the help of water. Bhanwarya, Gopalya, Sagrya, Jivan Nath, Mohnya, Rameshwarya, Natye, Sagrya son of Rekha, Danya, Ramshwarya son of Manya Prahlad broke open the door and entered inside the house and dragged the body of Dhanna out of the house. Dhanna was alive at that time. Gopalya, Bhonrya and Mulya inflicted Gainti blows on the person of Dhanna. Gopalya inflicted Gainti blow on temporal region of Dhanna. Bhanwarya inflicted Sariya blow, Natiya son of Rekhla inflicted lathi blow on the head. Rameshwar son of Marya inflicted Sariya blow on his forehead. When he (Narain) made hue and cry Jagdish inflicted axe blow on his forehead, Natya son of Rekhla also gave beating. Sagrya son of Rekhla snatched golden Murki, (earning) from his ear. On being instigated by Gopalya Asla, Kheenwla, Bhurya and Gopala entered inside the house, broke open the box and left. Bhura (PW. 2) deposed that he had gone to the house of Dhanna two days after the `sankranti'. As many as thirty persons gathered at the well near his house. They were abusing and threatening Dhanna to kill. In the afternoon three police persons came and enquired about gun from Dhanna and searched his house. Dhanna told that he did not have a gun but only possess a Gaj- gundi (hand made blasting instrument used to frighten animals ). Dhanna then said that his life was in danger and requested police persons to help him but they did not pay and heed and left. Thereafter, the persons who had gathered at the well, surrounded Dhanna's house and started pelting stones. Dhanna rushed inside his house. Accused Bhanwra and Gopal bolted the house from outside. They gave beating to Narain who remained out. Munna's wife entered in the kitchen. Bhanwara, Aasa, Khema and Gopal lit fire on the kitchen. Munna's wife came out. They inflicted lathi blows on her person. Thereafter, Bhanwara, Gopal, Nathu, Sagar and two three other accused climbed on the roof and started demolishing it. After the roof completely broken Khema and Aasha handed over `pulas' to Bhanwar and Gopal, who ignited fire. Moola Ram and Aasha then asked him (Bhura) to fled. In the meantime some body inflicted lathi blow on his left leg and he then ran away from that place. This witness could only recognise Khemaram, Aasha, Rekha, Jeevan, Sagar, Murli, Gopal, Bhanwar and Nathu in the trial Court. ;