SHARMA, J. - (1.) INSTANT appeals stem from the judgment dated August 22, 1996 of the learned Sessions Judge Sawai Madhopur in Sessions Case No. 36/1996 whereby the appellants Prem Shanker and Yogesh were convicted and sentenced as under- Prem Shanker U/s. 302/34 IPc to suffer imprisonment for life and fine of Rs. 500/- in default to further undergo three months S. I. Yogesh U/s. 302/34 IPc to suffer imprisonment for life and fine of Rs. 500/- in default to further undergo three months S. I. U/s. 324 IPc one year R. I. and fine of Rs. 100 in default to further suffer one month S. I. Acquittal of other four accused Shatrughan. Sita Ram, Prahlad and Arun Kumar has however been assailed by the State of Rajasthan.
(2.) INCIDENT giving rise to these appeals as per Parcha Bayan of injured Anil Sharma occurred on June 6, 1994 at 9. 45 a. m. when on his shop Arpan Garments Anil was sitting alongwith his father Govind Prasad (deceased), brother Bhawani Shankar (injured) and uncle Nathu Lal (deceased), suddenly Yogesh, Prem Shanker, Shatrughan and two other persons entered the shop and Prem Shankar dragged Govind Prasad out of the shop and inflicted blow with `gupti' on his back and Yogesh pierced Gupti on the right side of his chest. When attempt to save Govind Prasad was made by Anil, Bhawani, Shanker and Nathulal, they were also assaulted by the accused with Gupti and Knife. Govind Prasad fell down and was taken to the Hospital where he was declared dead. Police Station Man Town on the basis of said Parcha Bayan registered a case bearing FIR No. 160/94 under Secs. 147, 148, 149, 323, 323, 307, 452 and 302 IPC and investigation commenced. Site was inspected autopsy on the dead body of Govind Prasad was conducted, injured were medically examined. Blood smeared soil was recovered and Parcha Bayan of Nathu Lal was recorded. Nathu Lal also died on June 7, 1994 and dead body of Nathu Lal was subjected to post mortem. Statements of witnesses were recorded, accused were arrested and at their instance weapons allegedly used in offence were recovered. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge, Sawai Madhopur. Charges under Secs. 147, 302/149, 324/149, 449/149, 449, 324 and 302 IPC were framed against the accused, who denied the charges and claimed to be tried. The prosecution examined as many as 27 witnesses and exhibited 50 documents. In the explanation under Sec. 313 Cr. P. C. the accused claimed innocence and stated that they were falsely implicated. Four witnesses in defence were examined by the accused and 10 documents were got exhibited. On hearing final submissions learned trial judge convicted and sentenced the appellants Prem Shanker and Yogesh but acquitted Shatrughan, Sita Ram, Prahlad and Arun Kumar as indicated hereinabove. At the outset it may be noticed that superstructure of the prosecution case is built on the central evidence of three eye witnesses namely Anil (PW. 7), Bhawani Shanker (PW. 8) and Pritam Chand (PW. 9 ). This evidence is sought to be corroborated by dying declaration of deceased Nathu Lal (Ex. P. 17) and Ex. P. 18) and the testimony of Vasudev (PW. 25) who investigated the case and recovered the weapons of the offence at the instance of the accused. Deceased Govind as per post mortem report (Ex. P. 22) sustained following antemortem injuries- (i) Stab wound 1cm. x 1/2 cm. on upper right chest. (ii) Abrasion 3 cm. x 1/2 cm.-6 cm. below injury No. 1 on right side of chest. (iii) Abrasion 2cm. x 1cm. left elbow (iv) Abrasion 4. 5cm. x 1/4 cm. right arm. (v) Stab wound 2cm. x 1/2cm. on right shoulder. (vi) Stab wound 1. 5 cm. x 1/2 cm. x 1cm. on the right scapular region. (vii) Stab wound 1cm. x 3/4cm. leading inside the thoracic cavity (left side) (viii) Stab wound 1 cm. x 1/2cm. x 3/4 cm. obliquely placed on back. Injuries No. 1 and 7 were instantaneously dangerous to life and sufficient to cause death in the ordinary course of life. Injuries sustained by Nathu Lal were examined on June 6, 1994 vide injury report Ex. P. 15, according to which two injuries were found on his person. Injury No. 1 was lacerated wound 4 cm. x 3/4 cm. x 3/4 cm. bone deep obliquely vertical on left frontol region of scalp and injury No. 2 was stab wound 1cm. x 1/2 cm. leading inside the abdominal cavity. It was stated in the injury report that injured was fit to give oral statement. Nathu Lal died on June 7, 1994. As per his autopsy report (Ex. P. 20) antemortem stab wound on the left side of abdominal was found dangerous to life and sufficient to cause death in ordinary course of life. Bhawani Shanker (PW. 8) received following injuries as per his injury report (Ex. P. 12)- (i) Stab wound 1 cm. x 1/2 cm. x 1 cm. vertically on anterior surface of left chest 2 cm. below left nipple. (ii) Incised wound 1/2cm. x 1-1/3 cm. x 1/3 cm. vertically on right back scapular region. (iii) Linear abrasion 5cm. x 1/4 cm. on right side of chest. (iv) Bruise 3cm. x 3/4cm. on left back. (v) Lacerated wound 3cm. x 1/2 cm. x 1/4 cm. on right palmier surface.
(3.) ANIL Sharma (PW. 7) sustained one stab wound 1cm. x 1/2 cm. x 1 cm. over left lateral surface of chest. Vide injury report (Ex. P. 11 ). A look at the impugned judgment of the learned trial court goes to show that it has not placed any reliance on the testimony of Pritam Chand (PW. 9) and his evidence was rejected in toto. We have also critically analyse the statement of Pritam Chand and we find that his presence at the time of incident could not be established by the prosecution beyond reasonable doubt. This witness was not named in the FIR and his testimony has been shattered in the cross examination. That takes us to the testimony of Anil Sharma (PW. 7) and Bhawani Shanker (PW. 8) who according to prosecution received injuries while making attempt to save deceased Govind Prasad. Mr. S. R. Bajwa learned senior counsel canvassed that so called Parcha Bayan (Ex. P. 10) of Anil Sharma, being post investigative document, is hit by Sec. 162 Cr. P. C. and it cannot be treated as FIR of the occurrence. Parcha Bayan was recorded at 11. 15 a. m. much after the commencement of investigation. Dr. Preetam Chand (PW. 11) had examined Nathu Lal at 10. 35 a. m. and Vasudev Singh, I. O. (PW. 25) in his deposition stated that he got the injured Anil Sharma, Nathu Lal and Bhawani Shanker medically examined in the course of investigation. In his cross examination he deposed that he entered the telephonic message in the diary at 10. 30 a. m. that three persons who had received injuries in a quarrel were admitted in Hospital and one another person had died. He proceeded to Hospital and paid first attention to injured Nathu Lal whose condition was very serious. Bhawani Shanker (PW. 8) also stated that the I. O. on coming to hospital first rushed to Nathu Lal and made inquiry from him. Anil Sharma (PW. 7) also deposed that police when reached to the hospital had first talk with Nathu Lal. Learned counsel Mr. Bajwa further contended that Kishan Singh, the scribe of Parcha Bayan (Ex. P. 10) was not examined by the prosecution. The FIR was sent to Ilaqe Magistrate next day of the incident whereas distance between the Police Station and the Court was very short. All this goes to show that after due deliberations false case was concocted against the appellants. ;