MOHINI KAPUR,J. - (1.) 35 persons were tried by the Additional Sessions Judge, Kishangarhwas (Alwar) Rajasthan, for the offences under Sections 147, 148, 448, 302, 307 and 365 IPC read with Section 3/25 of the Arms Act. By his judgment dated 2nd July, 1988 the learned Additional Sessions Judge has convicted two person, namely, Bhawani and Hari Singh and acquitted the other 33 persons. He arrived at the conclusion that Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal formed as unlawful assembly and entered the Nohara of Mst. Patori and in pursuance of their common intention fired at Deshraj and Hoshiar and caused their death and also injured other persons and thus attempted to cause their death. Out of these five persons Kishan Lal, Ramjilal and Amilal were absconding and as such they could not be tried and only Bhawani and Hari Singh were convicted. They have been convicted and sentenced as under: Bhawani & Hari Singh : Under Section 302 IPC Life imprisonment and a fine of Rs. 100/ - each and in default of payment of fine to undergo 3 months rigorous imprisonment. Under Section 148 IPC Rigorous imprisonment for one year. Under Section 307 IPC Rigorous imprisonment for 7 years and a fine of Rs. 1,000/- and in default of payment of fine t o undergo rigorous imprisonment for the year. Under Section 448 IPC Rigorous imprisonment for one month Bhawani: Under Section 3/25 of the Arms Act Rigorous imprisonment for one year and a fine of Rs. 500/- and in default of payment of fine to undergo 6 months rigorous imprisonment. Against this conviction and sentence both of them have preferred this appeal.
(2.) THE incident out of which the case arises occurred in village Bhajnawas, which falls under Police Station Mundawar, on 21st Dec. 1985 at evening time. The report of the incident was lodged at Police Station Mundawar by PW 1 Daya Ram son Badloo Ram at 8.00 p.m. He gave out that on the same day at about 5.30 p.m. he was cutting kutti in his Nohara, while Leela, Deshraj, Babulal, Daulat, Ratan, Makhan and others were sitting in the Bethak. All of a sudden Kishanlal, Hari Singh and Bhawani and 13 others (who have been named in the FIR) came there armed with lathies, farsies, and guns. Kishan Lal had a twelve bore gun, Ramjilal had a pistol, Bhawani had a twelve bore gun, while Harisingh had a twelve bore katta. Others had farsies and some had lathies. Kishanlal abused them and fired on account of which Deshraj and Leela received injuries. Bholoo and Hoshiar and others came there on hearing gun shots. A gun was fired in their direction also. Deshraj and Hoshiar died on the spot. When they were sending the injured persons to the Hospital in the jeep of Banulal Vaid, then one Ramsingh Mali, who was also in the jeep was forcibly dragged out of the vehicle and was beaten by the accused. It was also mentioned in the FIR that there was enmity between the parties on account of Nohara and some proceedings were pending before the Sub -Divisional Magistrate, Kishangarhbas. This Dayaram who lodged the report himself had several pellet injuries. A case was registered at the Police Station and investigation was started. The site plan which was prepared is Ex. P/3. The Nohara of the complainant party has been shown in this. Approach to this Nohara is from the eastern side. There are some houses on the western side. On the east side of the Nohara is the back of the house of Bholoo. The bodies of Deshraj and Hoshiar were recovered from the places marked as T and 'K'. These places are on the northern side of the Nohara. 'F' has been shown as the place from where the accused fired. This is about 21 steps from the dead -bodies and is in the middle of the southern portion of the Nohara. Blood was found under the bodies and the same was recovered. There were some pellet marks on the back of the Bholoo's house. From a little distance towards the west of 'P' two empty cartridges and one live cartridge were recovered and from there and some wads of 12 bore cartridges were also recovered. We shall refer the site plan again, but we observe that the exact distance from one place to another or even the scale of the map has not been given. This is a case in which two persons have died due to gun shot injuries and several others have received injuries. Distance from one place to another has great importance. Maps with exact measurement can lend help in appreciating the evidence in all cases and in gun shot cases it can be said that the distance between the deceased and the assailants has a greater relevance and also helps in appreciating the oral evidence in the case.
(3.) THE investigating officer recorded the statements of witnesses and arrested the accused persons from time to time. Accused Bhawani gave information on 22nd Dec. 1985, on the basis of which a twelve bore gun and five empty cartridges and two live cartridges of twelve bore were recovered. On 30th Dec. 1985, from the other accused lathies and farsies were recovered. The persons injured in the firing are, Babulal, Dayaram, Makhan Ram, Daulat Ram, Leelaram, Bholooram, Santosh and Ratan Lal. Their injury reports are Ex. P/46, P/48, P/66, P/67, P/68, P/69, P/70 and P/71 respectively. All of them had pellet injuries scattered over different parts of the body. The injuries of Bholoo maybe described, who had multiple pellet injuries on right arm, forearm, on chesh on right side, and on back of posterolateral aspect and on right side, on right and left thighs, two pellet marks on left hand, one pellet injury on neck posteriori. The post mortem report of Deshraj and Hoshiar are Ex. P/75 and Ex. P/76 respectively and they had 42 and 25 gun shot wounds on different parts of the bodies respectively. The death in both cases occurred as a result of gun shot injuries.;