SHARMA, J. - (1.) THE appellants were the accused on the file of the learned Additional Sessions Judge Aklera (Distt. Jhalawar) bearing Sessions Case No. 16 of 1996. THEy were found guilty, convicted and sentence as under- Name of the accused appellant Convicted under Section Sentenced awarded 1. Kanwar Lal S/o Mohan Lal 302/149 IPC Death sentence and fine of Rs. 5000/- (in default to undergo one year RI) 2. Mangilal S/o Mohan Lal 3. Harak Chand @ Harchand s/o Kanwar Lal 4. Pyarji S/o Kanwar Lal 148 IPC One year RI and fine of Rs. 1000/- (in default to further undergo one months RI) 5. Gangaram S/o Ram Ratan 6. Hari Singh S/o Ram Ratan 7. Sheo Singh S/o Ram Ratan 8. Chhitar S/o Hari Kishan Three months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 9. Nenu Lal S/o Issar 10. Chhitar S/o Mangi Lal 11. Shyam Lal S/o Amar Singh 325/149 IPC Five years RI and fine of Rs. 1000/- (in default to further undergo one month RI) 323/149 IPC Six months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 12. Har Kishan S/o Shyam Lal 302/149 IPC Life imprisonment & fine of Rs. 5000/- (in default to undergo one year RI) 13. Chhitar S/o Mangi Lal Dabri 14. Gulab Chand S/o Kanwar Lal 148 IPC One year RI and fine of Rs. 1000 (in default to further undergo one month RI) 15. Sunder Lal S/o Issar 16. Nathu Lal S/o Dhuli Lal 17. Nenu Lal S/o Dhuli Lal 342 IPC Three months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 18. Bhura S/o Babru 19. Phool Chand S/o Babru 20. Babu Lal s/o Babru 325/149 IPC Five years RI and fine of Rs. 1000/- (in default to further undergo one month RI) 21. Daula s/o Babru 22. Kanwar Lal s/o Prabhulal 23. Phool Chand @ Phool Singh s/o Mangilal 323/149 IPC Six months RI and fine of Rs. 1000/- (in default to further undergo one month RI) 24. Nathu s/o Amarji All the sentence were directed to run concurrently.
(2.) LEARNED Additional Sessions Judge Aklera made reference (bearing Death Reference No. 2/1999) under Section 366 Cr. P. C. for confirmation of death sentence awarded to accused appellants Kanwar Lal s/o Mohan Lal, Mangi Lal s/o Mohan Lal, Harak Chand @ Harchand s/o Kanwar Lal, Pyarji s/o Kanwar Lal, Gangaram s/o Ram Ratan, Hari Singh s/o Ram Ratan, Sheo Ram s/o Mangilal, Chhitar s/o Hari Kishan, Nenu Lal s/o Issar, Chhitar s/o Mangi Lal Chauhan and Shyam Lal s/o Amar Singh, who also assailed the findings of the learned trial Judge alongwith thirteen others, by preferring two appeals under section 374 (2) Cr. P. C. bearing Nos. D. B. Cr. (Jail) Appeal No. 749/1999 and D. B. Criminal Appeal No. 761/1999. During the pendency of these appeals, another appeal by all the twenty four appellants was filed which was treated as defective and entered as D. B. Criminal Appeal (Defect) No. 508/1999 ). We ordered to tag it with the other appeals. In view of provisions contained in sections 366 and 368 Cr. P. C. we straight away proceed to analyse the entire material on record. It will be apposite to note at the outset the salient features of the prosecution case laid against the appellants. Written report (Ex. P. 21) came to be lodged by informant Badri Lal S/o Shyam Lal (PW. 18) with the Police Station Javar at 7. 30 p. m. on October 22, 1992 with the averments that as many as 24 persons (named in the report) who belonged to village Parthipura armed with weapons like lathi, Kalsi, Ballam and sword, started beating them and killed Daula s/o Shyam Lal, Ram Ratan s/o Shyam Lal, Phool Singh s/o Shyam Lal and Hari Singh s/o Shyam Lal. Informant Badri Lal and Kalu sustained injuries. Witnesses Amar Singh, Mangi Lal and Amar Singh Gujar of village Parthipura who were present there, intervened in between. Police Station Javar registered a case bearing No. 85/92 under Sections 147, 148, 149, 341, 323 and 302 IPC and investigation commenced. FIR (Ex. P. 22) was sent to Judicial Magistrate Aklera. Panchanama of the dead bodies of all the four deceased were drawn and autopsy of the dead bodies was conducted. Site was inspected and memo was sketched. Statements of the witnesses under Section 161 Cr. P. C. were recorded. Accused were arrested and at their instance weapons of offence were recovered and sealed. Blood stained soil and clothes were also seized and sealed and all the packets were sent to FSL, Report of FSL (Ex. P. 88) was received. On conclusion of investigation charge sheet was filed against 24 accused appellants. In due course the case came up for trial before the learned Additional Sessions Judge Aklera. The trial court framed charges under Secs. 148, 302 or 302/149, 325 or 325/149, 323 or 323/149 IPC against the accused appellants who denied charges and claimed trial. The prosecution examined as many as 21 witnesses thereafter the explanation of the accused appellants under Section 313 Cr. P. C. was recorded. The accused denied the allegations and pleaded innocence. No evidence in defence was led. Learned trial judge after hearing the final submissions convicted accused appellants as indicated hereinabove. At the outset it may be noticed that superstructure of the prosecution case is built on the central evidence of four eye witnesses namely Amar Singh (PW. 1), Mangilal (PW. 2), Sunder Lal (PW. 17) and Badri Lal (PW. 18 ). This evidence is sought to be corroborated by the testimony of Om Prakash (PW. 19) and Buddha Ram (PW. 21) who investigated the case and recovered the weapons of offence at the instance of accused persons. Let us analyse the evidence led by the prosecution. Coming to the testimony of informant Badri Lal (PW. 18) it is to be noticed that he is the real brother of all the four deceased Daula, Ram Ratan, Phool Singh and Hari Singh. Injury report of Badi Lal is Ex. P. 10 according to which he sustained as many as two simple injuries thus- (i) Lacerated wound 1" x 1/4" x 1/4" over upper 1/3 of left arm. (ii) Abrasion 1" x 1-1/2" over upper 1/3 of the forearm. In his deposition Badri Lal stated that on hearing from Karan Singh (the brother in law of Jamna) that Jamna was beaten, he alongwith Daula, Ram Ratan Phool Singh. Hari Singh (since deceased) and Sunder lal proceeded towards Dhabdeh. Jamna met them at village Parthipura near the house of Ram Ratan. On being asked Jamna informed them that he was being manhandled. When they were returning back with Jamna, the accused appellants armed with lethal weapons like Farsi, Sword, Ballam and lathi obstructed their way and started inflicting blows on their persons that resulted into instant death of Daula, Ram Ratan, Phool Singh and Hari Singh. He (Badri Lal) and Sunder Lal sustained injuries. In his cross-examination Badri Lal deposed that- "kis KIS MULJIM NE MRITKON KE KAHAN KAHAN MARI NAHIN BAtA SAKTA LEKIN GYARHA AADMIYON NE MAR PIT KI THI BAD MAIN BAKI MULJIMAN BHI AA GAYA THE" English Translation- (I cannot say as to which accused caused injury to which deceased but it is correct to say that at the outset eleven persons were involved in the marpit and thereafter other accused joined them.) In regard to injuries sustained by him Badri Lal stated that Kanwar Lal inflicted blow with Ballam on his person.
(3.) SUNDER Lal (PW. 17) is also an injured eye witness. Injury report of SUNDER Lal is Ex. P. 11 according to which he sustained two abrasions measuring 3/4 on Index finger and Partial region and fracture over right palm vide X ray report (Ex. P. 12 ). In his deposition SUNDER Lal stated that on being informed by Karan Singh that Jamna was beaten, he alongwith Ramratan, Daula, Phool Singh and Hari Singh had gone in search of Jamna. On the way of village Parthipura the incident had taken place. In the beginning Chhitars, three in number, two were the sons of Mangilal and, father's name of the third was Hari Kishan along with Hari Singh, Ganga Ram, Nannu, Harchand, Sheo Ram, Gulabchand, Pyara and Kanwar Lal came. Kanwar Lal was armed with Ballam and Sheo Ram was having sword and all other nine persons were armed with Farsis. They started inflicting the blows. Thereafter other accused joined them. He could not see the injuries on the persons of the deceased because of the crowd but Chhitar inflicted Farsi blow on his head. In his cross- examination SUNDER lal stated that he did not know as to two caused injury to whom. He further deposed that Chhitar inflicted injury on his person from the sharp side of Farsi. The incident had occurred on the way. At the time of institution of report they did not know the names of assailants. Amar Singh (PW. 1) deposed that only Kanwar Lal, Mangilal, Harchand, Pyara, Gagoliya, Hari Singh, Sheoram, Chhitar, Nannu and Shyam quarreled with Daula, Hari Singh, Phool Singh, Ram Ratan, Badri and Sundra that resulted in to death of Daula, Ram Ratan Harisingh and Phool Chand. The witness was declared hostile. Mangi Lal (PW. 2) stated that people belonging to villages Dhanwas and Parthipura fought together. Daula, Ramratan, Badri Lal, Sundra, Jamna Lal, Hari Singh, Phool Singh and Ram Singh were from Dhanwas whereas Chhittar s/o Mangi Lal Dhabri, Kanwar Lal, Sheoram, Gulab, Pyara, Ganga Ram, Hari Singh, Nannu, Chhitar s/o Hari Kishan, Kanwar Lal s/o Prabhu Lal, Hari Kishan and Shyam Lal belonged to village Parthipura. People of Parthipura were armed with lathis and Gandasis and people of Dhanwas had lathies and Farsis. People of Dhanwas were going towards Parthipura. The incident and occurred after both the sides started pelting stones at each other near the huts of Shyam Lal and Bal Ram. 6. Dr. Ramesh Chand Dubey (PW. 9) conducted post mortem of the deadbodies. As per post mortem report Ex. P. 6 deceased Daula sustained as many as seven antimortem injuries thus- 1. Verticle Incised wound 3" x 2" x 2" over mid of the frontol bone of the Head. 2. Swelling 2" x 2" over right shoulder joint. 3. Abrasion 1" x 1/2" over pinna of Rt. ear. 4. Hematoma 2" x 2" over left partial bone. 5. Abrasions over back back of the neck. 6. Lacerated wound 1" x 1/4" x 1/4" over mastrid bone. 7. Verticle Incised wound 2 1/2" x 1/2" x 1/2" radius bone. The cause of death was coma as a result of head injury. 7. Deceased Ramratan as per postmortem report Ex. P/7 sustained following antimortem injuries- (1) Transverse lacerated wound 2" x 1 1/2" x 1/2" over left parital bone. (2) Abrasion 1-1/2" x 1" over left clasicle. (3) Lacerated wound 2" x 1" x 1" over Rt. leg. (4) Abrasion 1" x 1" over Rt. Knee joint. The cause of death was coma as a result of head injury. 8. Deceased Hari Singh sustained six injuries as per post mortem report Ex. P. 8. thus- (i) Clean cut verticle incised wound 5" x 1/2" x 1/2" over frontal bone. (ii) Abrasion 1" x 1/2" over left elbow. (iii) Oblique incised wound 44" x 1" x 2" over left thigh (iv) Abrasion 6" x 1" over upper 1/3 of left leg. (v) Abrasion 1" over lower 1/3 of right thing. (vi) Abrasion 1/2" x 2" over left leg. The cause of death was coma as a result of head injury. 9. As per post mortem report Ex. P. 9 deceased Phool Singh sustained only one injury on head as under- Clear cut, oblique incised wound 6" x 4" x 4" over left parital bone. The cause of death was coma as a result of head injury. Dr. Ramesh Chand Dubey in his cross-examination stated that he also examined the injuries sustained by Ganga Ram s/o Ram Ratan Gujar on the day when he conducted postmortem of the dead bodies. ;