GARG, J. - (1.) THE abovenamed accused appellants have preferred this appeal against the judgment and order dated 3. 9. 1997 passed by the learned Additional Sessions Judge No. 3 Sri Ganganagar, Headquarters at Sri Karanpur in Sessions Case No. 16/97 (Old No. 66/94) whereby he convicted and sentenced the accused appellants in the following manner:- Name of accused appellants, Convicted under Section, Sentence awarded to each accused appellant 1. Dungar Ram 2. Khayali Ram 3. Banwari Lal 4. Hari Ram 5. Shankar Lal 6. Raghuveer Singh 7. Surendra. 8. Madan Lal 9. Sohan Lal 148 IPC 302/149 IPC Three Year's RI Life Imprisonment & fine of Rs. 100/-, in default of payment of undergo one month RI. 307/149 IPC Ten Years' RI and fine of Rs. 100/-, in default of payment of fine, to further undergo one month RI. 27 Arms Act Five years' RI and fine of Rs. 100/-, in default of payment of fine, to further undergo one month RI. 10. Bhagirath 147 IPC Two years' RI. 302/149 IPC Life Imprisonment & fine of Rs. 100/-, in default of payment of fine, to further undergo, one month RI. 307/149 IPC Ten years' RI and fine of Rs. 100/-, in default of payment of fine, to further undergo, one month RI. THE above substantive sentences were ordered to run concurrently.
(2.) THE facts giving rise to this appeal, in short, are as follows:- On 7. 7. 1994 at about 8. 00 PM, PW1 Ram Pratap lodged a written report Ex. P/1 before PW19 Vipin Sharma, SHO, Police Station Ghamudwali District Sri Ganganagar stating inter-alia that his father Asharam (PW4) had two wives and out of first wife, there are five sons viz. 2. Hari Ram - Accused appellant No. 4 3. Sheo Karan 4. Dungar Ram - Accused appellant No. 1 5. Khayali Ram - Accused appellant No. 2 and out of the second wife, he (PW1 Ram Pratap) is the only son. It is further stated in the report that PW4 Asharam made partition of his property before 10-12 years back with consent to panchayat decision. Looking to the sound financial condition of PW-1 Ram Pratap, the other step brothers had a grudge with him and they used to say that they would see him when the proper time would come. Though he himself had no grudge against them, but internally they were not happy with PW-1 Ram Pratap. It is further stated in the report that on 30. 6. 1994 he went to Delhi and returned back from Delhi in the morning of 6. 7. 1994 and on 7. 7. 1994 at about 6-6. 30 PM in the evening, his two sons, namely, Rahul and Sidharth (hereinafter referred to as the deceased No. 1 and deceased No. 2 respectively) and their friend, namely, PW-2 Bablu @ Suchit and PW-3 Shiv Prakash had gone to field where tube well was also there and at that time, PW1 Ram Pratap was sitting on the roof of the room of the tube well and PW-3 Shiv Prakash was also looking after his crops. It is further stated in the report that when his both sons (deceased) and PW2 Bablu proceeded towards village on the motor-cycle, in the meantime, one moter- cycle and one jeep came from the front side and on the motor cycle, accused appellants Madan Lal and Shankar were there and accused appellants, namely, Dungar Ram, Khyaliram, Raghuveer, Hariram, Surendra and Banwari came out from the Jeep and at that time, they all were having guns and pistols in their hands. THE motor cycle was being driven by accused appellant Madanlal and accused appellant Shankar was sitting behind him and accused appellant Shankar was having a pistol. It is further stated in the report that thereafter all of them encircled both deceased and PW2 Bablu and told "aaj INKA KANTA NIKAL DENGE". THEreafter, first fire was shot by accused appellant Shankar from the front side on deceased No. 2 Sidharth and accused appellant Raghuveer fired with pistol on another deceased No. 1 Rahul and accused appellant Dungar Ram also fired a gun shot on PW2 Bablu and, therefore, he fled away from the scene, while because of continuous firing by accused appellants, both deceased died on the spot. It is further stated in the report that because of fear, PW1 Ram Pratap did not come down from the Kotha. THEreafter, the accused appellants ran away. It is further stated in the report that thereafter PW1 Ram Pratap and PW3 Shiv Prakash came to their village and PW1 Ram Pratap informed to his father PW4 Asharam and also to the villagers about the incident. When PW1 Ram Pratap reported the matter to his father, his father PW4 Asharam also told him that before this incident, in jeep and motor cycle, accused appellants, namely, Hariram, Dungarram, Khyaliram, Raghuveer, Surendra, Banwari, Shankar, and Madanlal and driver of the Jeep, whose name he did not know, came there and took tea and enquired about PW1 Ram Pratap and his sons and it was also informed by the villagers and neighbours that these accused appellants were roaming in the village in search of them and thus, they wanted to kill PW1 Ram Pratap and his sons so that they could garb his property and in pursuance of that, the accused appellants have killed his sons. On this report, PW19 Vipin Sharma chalked out police FIR Ex. P/2 and started investigation. During investigation, post mortem of the dead body of both the deceased was got conducted by PW18 Dr. Chandra Bhan. THE post mortem report of deceased No. 1 Rahul is Ex. P/63 and that of deceased No. 2 Sidharth is Ex. P/64 and the cause of death as assigned by PW18 Dr. Chandra Bhan in both the post mortem reports was that both deceased died due to shock and haemorrhage due to injuries of lungs and liver and spinal cord by fire arms. PW2 Bablu @ Suchit was also got medically examined and his injury report is Ex. P/65, which shows that he received a lacerated wound and his X-ray was also taken and the X-ray report is Ex. P/59, which shows that on thigh, one metallic devise radio opeque shadow in the soft tissue was detected, it means he also received fire arm injury. THEreafter, accused appellants were arrested through Ex. P/21 to P/29 and Ex. P/66 and guns and pistols were recovered from them except from accused appellant No. 10 Bhagirath. PW19 Vipin Sharma also prepared site plans Ex. P/3 and Ex. P/4. THE Inquest Reports of both deceased were also prepared and they are Ex. P/5 and Ex. P/6. After usual investigation, police submitted challan against the accused appellants in the Court of Magistrate and from where the case was committed to the Court of Session. On 9. 5. 1995, the learned trial Judge framed charges against the accused appellants Dungar Ram, Khayali Ram, Banwari Lal, Hari Ram, Shankar Lal, Raghuveer Singh, Surendra, Madan Lal and Sohan Lal for the offence under Sections 147, 148, 302/149, 307/149 IPC and under Sections 25 and 27 of the Arms Act and against accused appellant Bhagirath for the offence under Sections 147, 148, 302/149 and 307/149 IPC. THE charges were read over and explained to the accused appellants. THEy denied the charges and claimed trial. During the course of trial, as many as 20 witnesses have been produced by the prosecution and many documents were got exhibited. THEreafter, statements of the accused appellants u/sec. 313 Cr. P. C. were recorded. THE accused appellants did not lead any evidence in defence, but got exhibited some documents in their defence. THE learned Additional Sessions Judge No. 3 Sri Ganganagar through his judgment and order dated 3. 9. 1997 convicted and sentenced the accused appellants in the manner as stated above holding inter- alia:- 1. That both deceased Rahul and Sidharth died because of fire arms injuries and these injuries, which were received by them were sufficient in the ordinary course of nature to cause death. 2. That he had placed reliance on the testimony of PW1 Ram Pratap, PW2 Suchit @ Bablu and PW3 Shiv Prakash as eye witnesses and all submissions which were raised against their testimony, were rejected by him. 3. That report Ex. P/1 was rightly lodged on 7. 7. 1994 at 8. 00 PM and the submission that it was not lodged on the same day was rejected by the learned Additional Sessions Judge. 4. That the incident took place at 6-6. 30 PM on 7. 7. 1994 as stated in the report Ex. P/1. 5. That recording of statement Ex. D//3 under Section 161 Cr. P. C. of PW3 Shiv Prakash on 13. 7. 1994 was not found to be fatal to the prosecution by the learned Additional Sessions Judge and the so-called delay in recording the said statement was also not found fatal to the prosecution by the learned Additional Sessions Judge holding that if any mistake or dereliction of duty is committed by the Investigating Agency during investigation, it would not affect the testimony of the witness. 6. That no doubt in the report Ex. P/1, the names of the two accused appellants, namely, Sohan Lal and Bhagirath did not find place, all the same, the learned Additional Sessions Judge held that these two accused appellants were also present at the time of occurrence and took part in the incident. 7. That all the ten accused appellants formed an unlawful assembly and common object of which was to commit murder of both deceased and also to make a murderous attack on PW2 Suchit @ Bablu. 8. That since accused appellants fired in prosecution of the common object, therefore, it was not necessary to prove which accused appellant caused particular injury on the body of the deceased. 9. That it is also proved that accused appellants had enmity against PW1 Ram Pratap and his both sons (deceased) over the partition of the property made by PW4 Asharam and thus, accused appellants had strong motive to murder both deceased. 10. That the prosecution witnesses especially. PW1 Ram Pratap, PW2 Suchit @ Bablu and PW3 Shiv Prakash have given false statement on the point that accused appellant Raghuveer Singh caused gun shot injury to PW2 Suchit @ Bablu and accused appellant Shankar Lal caused gun shot injury to deceased No. 2 Sidharth, as the fact that these three accused appellants individually caused fire arm injuries is not being supported by medical evidence. But, their statement as a whole cannot be disbelieved because if they give false statement on one point, it does not mean that they are telling lie on other points also and thus, the principles of falsus in uno falsus in omnibus would not be applicable in the present case. 11. That the learned Additional Sessions Judge has also observed that these three accused appellants have not fired and according to him, since arms which have been recorded from them cannot fire soft nose copper jacketted projectile therefore, these three accused appellants did not cause any fire arm injury as alleged by the prosecution. 12. That apart from thus, there is also circumstantial evidence on the point that arms have been recovered on the information given by the accused appellants except from accused appellant Bhagirath and this fact also proves the case of the prosecution. Aggrieved from the said judgment and order dated 3. 9. 1997 passed by the learned Additional Sessions Judge No. 3, Sri Ganganagar, the present appeal has been filed by the accused appellants. In this appeal, the following submissions have been made by the learned counsel for the accused appellants:- 1. That PW4 Asharam has stated that all the accused appellants came to his house at about 7. 30 PM on 7. 7. 1994 and if they left the house after taking tea, no question arises that incident would have taken place at 6-6. 30 PM. Therefore, PW1 Ram Pratap has wrongly reported in his report Ex. P/1 that incident took place at 6-6. 30 PM to avoid darkness at about 8. 00 PM. Thus, it should be held that report Ex. P/1 was not lodged at the alleged time of occurrence and it has been lodged after consultations to adjust the timing. 2. That PW1 Ram Pratap, who has lodged the report Ex. P/1, has himself claimed to be an eye witness of the occurrence, but since he has no where stated in his statement that after alleged occurrence, he went near the dead body and checked them to be dead and from there he went directly to his house and then from the house directly to the police station, therefore, it means he has not seen the occurrence and, it should be presumed that FIR was not lodged by PW1 Ram Pratap in the manner and timing alleged by him in the report Ex. P/1 was concocted one and mentioned after consultations with the police. In other words, report Ex. P/1 is not correct picture of the incident and thus, PW1 Ram Pratap cannot be regarded as an eye witness in the present case. 3. That PW2 Bablu @ Suchit cannot be regarded as an eye witness as his presence on the scene is doubtful, looking to his conduct. 4. That PW3 Shiv Prakash, who is brother-in-law of PW1 Ram Pratap and Mama of both deceased, cannot also be regarded as eye witness as he is not resident of village Pharsewala and his village is at distance of 30 km. Had he been an eye witness, he would have certainly gone with PW1 Ram Pratap to lodge the report and recording of his statement by police with some delay also gone to show that he was not an eye witness. 5. That the names of the accused appellants Sohan Lal and Bhagirath were not mentioned in the report Ex. P/1, therefore, their presence on the spot is doubtful. 6. That looking to the injuries of both deceased, it cannot be inferred that all accused appellants caused fire arm injuries to both deceased and thus, the case of the prosecution that all accused appellants fired on both deceased cannot be accepted. 7. That it is a case of blind murder and all the eye witnesses, who have been produced by the prosecution, are false one and all the accused appellants have been falsely implicated and thus, the whole case should be thrown out and accused appellants be acquitted of the charges framed against them. 8. That prosecution case is false one as empty cartridges have not been recovered from the place of occurrence, as admitted by PW19 Vipin Sharma, IO in this case and thus, the incident as alleged by the prosecution has not taken place and true story has been suppressed by the prosecution and from this point of view also, the whole prosecution case should be thrown out. 9. That Inquest Reports Ex. P/5 and Ex. P/6 did not disclose the brief facts of the incident and thus, from this point of view also, the report Ex. P/1 was not lodged at the time as alleged in that report. Hence, it is prayed that this appeal be allowed and the accused appellants be acquitted of the charges framed against them. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant submitted that the findings of conviction recorded by the learned Addl. Sessions Judge No. 3 Sri Ganganagar are based on correct appreciation of evidence and thus, no interference is called for with the impugned judgment and order passed by the learned Additional Sessions Judge No. 3 Sri Ganganagar. We have heard the learned counsel for the accused appellants, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. Before proceeding further, we would like to discuss first the medical evidence.
(3.) IN this case, there are two deceased. The post mortem report of deceased No. 1 Rahul is Ex. P/63 and that of deceased No. 2 Sidharth is Ex. P/64 and to prove the post mortem reports Ex. P/63 and Ex. P/64, the prosecution has produced PW18 Dr. Chandra Bhan. Pw18 Dr. Chandra Bhan states in his statement that on 8. 7. 1994 he was Sr. Medical Officer, Primary Health Centre, Ghamudwali and on that day, he conducted post mortem of the dead body of the deceased Rahul and found the following injuries on his body:- 1. Multiple lacerated wound of 1/2 cm x 1/2 cm size 30cm x 14cm area on the Lt. side of chest oblique. In direction some are embedded in the wall & some are cavity deep. 2. Lacerated wound with scorched and tattooed 2 1/4 x 2cm and thoracic cavity deep, oblique. In direction just below and lateral to Rt. nipple, Inverted margins. 3. Lacerated wound size 5cm x 3cm bony deep fracture of middle phalaynx and bones are exposed on the Lt. thumb to palmer side. The cause of death of deceased Rahul opined by Pw18 Dr. Chandra Bhan is as follows: "from the above mentioned observations and findings, the cause of death shock & haemorrhage due to injuries of lungs & liver & spinal cord by fire arm. " Pw18 Dr. Chandra Bhan has further stated that on 8. 7. 1994 he has also conducted post mortem of the dead body of the deceased No. 2 Sidharth and found the following injuries on his body:- 1. Lacerated wound 1-1/2 cm x 1-1/4 cm x cavity deep at the level of T11 & T12 with oblique In direction with tattooed with Inverted margin. 2. Lacerated wound size 1-1/4 cm x 1cm x cavity deep. Lt. side of chest at the level of 9th rib. near to strenum with Invested margins. 3. Lacerated wound 3cm x 2cm x cavity deep at the level of 11th rib Rt. side 6cm from the medial line with Everted margins. 4. Lacerated wound size 2cm x 1-1/2 x cavity deep at the RT side of Chief at the level of 10th rib. Lateral side with Everted margins. 5. Lacerated wound size 2cm x 1 1/2 cm muscles deep. Horizontal In Direction lateral side of 12th rib. 6. Contusion 4cm x 1 1/4cm on the pinna of Lt. ear. Note : Injuries 1 & 2 are entrance wound and injuries 3 & 4 are Exit wound. The cause of death of deceased Sidharth as opined by Dr. Chandra Bhan (Pw 18) is as follows:- "from the above mentioned observations and findings, the cause of death is shock and Haemorrhage due to injuries of lungs & liver & spinal cord by fire arm. " Dr. Chandra Bhan (Pw 18) has proved the post mortem reports Ex. P/63 and Ex. P/64. Thus, from the statement of Pw18 Dr. Chandra Bhan and the post mortem reports, it becomes crystal clear that both deceased died because of shock and haemorrhage due to injuries of lunge & liver & spinal cord by fire arm and therefore, death of both the deceased was not natural one and it was homicidal. ;