K.C. Sharma, J. - (1.) THIS appeal has been preferred by the accused -appellants namely, Sukh Dev, Jai Prakash and Pyare Lal challenging the judgment of conviction and sentence dated 26.2.1996 passed by learned Session Judge, Jhunjhunu, whereby, he has convicted the accused appellants under Section 302/34 of the Indian Penal Code and sentenced each of them to undergo life imprisonment.
(2.) BRIEFLY stated the contextual facts of the case are that on 26.10.1994 at 8.15 P.M. PW -11 Shiv Kumar, Assistant Sub -Inspector, Police Station, Khetri received a telephonic message informing that Pawan Kumar @ Banti is lying unconscious, near petrol pump due to injuries caused by 4 -5 persons. The person did not disclose his identity and disconnected the telephone. PW -11 Shiv Kumar recorded this information in "Rojnamcha" as Ex.P.24 and proceeded to the place of occurrence alongwith S.H.O., Bhisham Raj Arya, PW -13 and other police personnel. They found the dead body of one youth lying near the Cabin of petrol pump. PW -13 Bhisham Raj Arya received an information from Police Station that Bharat Kumar. the brother of deceased Banti alongwith the report is present at the police station. He directed to register the case and forwarded the First Information Report alongwith the complainant to Government Hospital. Nawalgarh as he had to proceed alongwith deceased Banti to the hospital. The Medical Officer in the Hospital declared Banti dead. Pw -6 Bharat Kumar submitted a written report Ex.P.6 at Police Station, Nawalgarh on 26.10.1994 at 9.30 P.M. to Ganpat Ram, Head Constable, Pw -8 to the effect that on 26.10.1994, he and his brother Pawan Kumar @ Banti came to Mukundgarh at about 8.00 or 8.15 P.M. while they were passing, through in front of the petrol pump, a Bus No. RJ -18 -P 0139 came from the opposite side and stopped near them and all of a sudden, 10 -12 persons armed with Barchies, Gandasis and Dhariya got down from the bus. Accused Sukh Dev was having a Barchi like Lathi and he told other accused persons that enemy has met, so kill him. Alongwith accused Sukh Dev, there were Pyare Lal, Jai Prakash, Shiv Prasad and Mahi Pal and 5 -6 other persons, to whom he can identify. These persons ran towards them to kill them and he ran towards the back side and Pawan Kumar ran towards the petrol pump, then all the accused persons surrounded him and started giving beating to him with their respective weapons. When he cried for help, some persons including his uncle's son Mahesh Kumar, Pw -5 came running. It has been further mentioned that at the petrol pump two boys, who were filling petrol were also there, but none has to rescue him. He himself did not try to rescue Pawan Kumar because accused persons would have killed him. Accused persons after giving beating to Pawan @ Banti went away by the same bus. Pawan Kumar is lying near the petrol pump in dead condition. It has further been mentioned that there was enmity between the family of the complainant and the family of Sukh Dev. Pw -8 Ganpat Ram. on the basis of the report, registered a case No. 271/94 under Sections 147, 148, 149 and 302, IPC vide FIR, Ex.P.7. One constable alongwith Bharat Kumar reached the hospital, where Pw -13 Bhisham Raj Arya recorded his statement of Bharat Kumar.
(3.) PW -13 Bhisham Raj Arya, S.H.O. inspected the site on 27.10.1994 and prepared site plan Ex.P.4. He collected blood stained soil and blood stained hair and control soil vide Ex.P.5. PW -10 Mohan Lal, took photographs of the seen of occurrence and also of the deceased. The photographs are Ex. P. 16 to Ex. P. 23 and their negatives are Ex. P. 16 -A to Ex.P. 23 -A. PW -13 Bhisham Raj prepared the inquest report Ex.P. 10. He arrested accused Sukh Dev, Jai Prakash and Pyare Lal on 3.11.1994 vide memos of arrest Ex.P. 1 to Ex.P. 3. He recovered one Gadhasi from the possession of accused Jai Prakash on his information Ex.P. 32 vide recovery memo Ex.P. 25. The site plan of the place of recovery is Ex.P. 28. He also recovered one Gadhasi from the possession of accused Pyare Lal on his information Ex.P. 23 vide recovery memo Ex.P. 26. The site plan of the place of recovery is Ex.P. 29. He also recovered Barchi like Lathi from the possession of accused Sukh Dev on his information Ex. P. 34 vide recovery memo Ex.P. 27. The site plan of the place of recovery is Ex.P. 30. He also recovered bus No. RJ -18 -P 0139 on the information of accused Jai Prakash Ex.P. 35 vide recovery memo Ex.P. 31. He took in possession the blood smeared clothes of deceased Pawan Kumar vide Ex.P. 14. He deposited the recovered articles in Malkhana, a copy of malkhana register is Ex.P. 13. He sent the recovered articles for examination to F.S.L., Jaipur through letter of Superintendent of Police Ex.P. 36, the receipts of which is Ex.P. 15.;