MADAN, J. - (1.) THIS criminal appeal arises out of judgment of the Additional Sessions Judge Kishangarh whereby each of the appellants (Bhanwari, Harji, & Goma) has been convicted and sentenced U/s. 147 IPC to undergo two years RI, and U/s. 302/149 IPC to undergo life imprisonment with a fine of Rs. 1000/- (in default, further 6 months' RI ).
(2.) THE prosecution launched against the appellants has resulted out of a report (Exp10) lodged on 25. 7. 99 at PS Arai (Ajmer) by Ranglal (PW8) alleging therein that his mother Chandri had gone to look after their agricultural field as usual while he had gone to attend meeting of Gram Panchayat and when he returned back in the evening at about 5 PM then Kalu (PW 4) gave out that Chandri was dragged and thrown into well by Bhanwari, Harji, Gheesa Bhagchand, Goma alongwith their wives, Teju & Amra, by forming an unlawful assembly having common intention at about 3. 30 PM. On such a report crime (FIR No. 106/99 Exp11) was registered for offence punishable U/ss. 147, 149 and 302 IPC. After usual investigation a challan was filed against the appellants and the investigation was kept pending U/s. 173 (8) Cr. P. C. to which case was committed by the learned Additional Judl. Magistrate Kishangarh to the court of Sessions. THE appellants were charged for offences U/ss. 147 and 302 IPC. As many as 12 witnesses were produced by the prosecution in support of its case besides getting nine documents exhibited. THE appellants were examined U/s. 313 Cr. P. C. In defence they got exhibited statements recorded U/s. 161 Cr. P. C. of Kalu (Ex. D. 1), Bishanlal alias Kishanlal (PW6) (Ex. D. 2) & other documents. After completion of trial, hearing both the parties, the learned trial Court convicted & sentenced each of the appellants as indicated above. Hence this appeal. Shri Jagdeep Dhankhar Sr. Advocate duly assisted by Mr. Praveen Balwada, appearing for appellants contended that as per first information report (Ex. P10) eleven persons including five women are alleged to have dragged Chandri (deceased) around 3. 30 PM on 25. 7. 99 and then thrown into the well, and such an information is based only on the version given out to informant Ranglal (PW8) by Kalu (PW4) and admittedly the prosecution case hinges on solitary witness (PW4) & Kishanlal (PW6) while two of prosecution witnesses Harkaran (PW9) & Rodu (PW10) having turned hostile did not support the prosecution and further as per first informant (PW8) he had animosity with the accused persons who had left the scene of occurrence in a tractor of co-accused Teju, inasmuch as out of 11 accused persons having similar allegations, only these appellants have been charged by keeping investigation pending U/s. 173 (8) Cr. P. C. According to Shri Dhankhar, testimony of Kishanlal cannot be accepted because his name did not find mention in FIR as eye witness, Kalu (PW4) (sole eye witness) did not hold him (PW6) as ocular witness either in police statement U/s. 161 Cr. P. C. (Ex. D. 1) or court statement, nor Ranglal holds out him (PW6) as witness to the incident; further according to him (PW6) his police statement was recorded after two and half months of the incident but he failed to explain as to why he did not give ocular account of the incident to the villagers or any information to Ranglal (PW8); that apart as per him (PW6) the incident was over before 12 noon as he returned home by then, inasmuch as even as per Nathulal Morya (Addl. SP) (PW 5), he (PW 6) was not held out as eye witness to the incident. Thus according to Shri Dhankhar. Kishanlal (PW 6) an old man of 65 years was a chance witness, rather details as to the incident given out by him (PW 6) are sketchy and such a conduct on his part makes his testimony totally discredit worthy by impeaching his credibility. To discard testimony of sole eye witness Kalu (PW 4), Shri Dhankhar contended that the story as put by this eye witness as to the dragging of the deceased at the instance of eleven accused is belied by site plan (Ex P2) because there has been absence of marks of dragging at the place of occurrence having been not shown by the maker (IO) (PW 12) of the site plan, inasmuch as despite there being admission in the evidence of Phusaram (IO) (PW 12) as to existence of a wall of 6 ft. in height of alike stone barrier, chances of Kalu (PW 4) having seen the ocular account of the incident from his agricultural field being situated to the east of the well, so also at a considerable distance of about 1 km as per revenue map (Ex. D. 3), were nay nil. Shri Dhankhar then urged that despite the first information being based on facts disclosed by Kalu (PW 4) to Ranglal, curiously enough he was not associated with site plan (Ex P2) nor his statement was recorded very day during investigating, rather he (PW 4) resiled from his police statement (Ex. D. 1 ). It is the case on behalf of the appellants that Ranglal (PW 8), his mother Chandri (deceased) and Bhanwari (accused) are closely related. Chandri (deceased) was mother-in-law of Bhanwari (accused ). Shri Dhankhar Vociferously contended that Ranglal (PW 8) has gone to speak lie even against the judicial record by stating that neither his father Chhagna nor Chandri (deceased) had ever lodged any report against him nor criminal cases were ever pending, whereas FIR No. 85/92 was registered at the behest of Chandri (deceased) against him (PW8) while FIR No. 26/91 was at the behest of Chhagna; and all these facts are stated by Pusharam (PW 12) (IO), and such a conduct also makes his testimony doubtful. Shri Dhankhar then contended that according to endorsement put on FIR (Exp11) crime was registered at PS Arai at 10 PM on 25. 7. 99 on written report (Ex. P10) of Ranglal (PW 8) while in his court statement he (PW 8) has completely changed the position by stating that the police first came to the village whereafter he went to the place of incident alongwith police where he gave the report (Exp10) which impeaches his credibility. Further as per Ranglal (PW 8) he instituted a revenue suit against Harji (appellant) Bhagchand & Gheesa (accused) which makes it clear that both the parties had inimical terms by reason of pendency of cases between them.
(3.) LASTLY Shri Dhankhar contended hat significant aspect of the prosecution evidence there is neither corroboration to the testimony of sole eye witness (PW 4) by other's versions whereas their versions are contradictory to each others. Statements of the appellants u/s. 313 Cr. P. C. revealed a probable situation favouring with their innocence. Shri Dhankhar mainly cited decisions in G. B. Patel Vs. State of Maharashtra (1), Shrwan Singh vs. State of Punjab (2) and Mohd. Iqbal Shaikh vs. State of Maharashtra On the other hand, learned Public Prosecutor supported the findings arrived at by the learned trial Court and those conclusions according to him are based on well appreciation of the prosecution evidence and other material on record warranting no interference in the impugned conviction against each of the appellants. We have heard the learned counsel for the parties and perused the relevant record consisting of prosecution as well as defence version appearing in their evidence, with reference to their rival contentions. The medical evidence did not appear to have been disputed on behalf of the accused appellants during the course of hearing before this Court or even during trial. Ex. P6 to P9 relate to the arrest and search memoes of the accused appellants which have been admitted by their counsel before the trial Court. ;