B.R.ARORA, J. - (1.) THIS appeal is directed against the judgment dated July 4, 1988, passed by the Sessions Judge, Bikaner, by which the learned Sessions Judge1 convicted and sentenced the accused -appellant Ashiq under Sections 148, 302, 323 read with Section 149 I.P.C., accused Yusuf and Alladeeta under Sections 147, 326 read with Sections 149 and 323 I.P.C., and the remaining accused -appellants Kalu, Haji Khan and Phalaksher under Sections 147, 326 read with Sections 149 and 323 read with Section 149 I.P.C.
(2.) THE accused -appellants were tried by the learned Sessions Judge, Bikaner, for the offences under Sections 147, 148, 149 and 302 I.P.C. The prosecution case as unfolded in the First Information Report, lodged at Police Station, Chhattargarh by Lukman S/o Ajmera, is that at about one month before, Subhan's herd entered into the field of accused Ashiq, on which some quarrel took place, but ultimately the matter was compromised and the catties were not given in the cattle pond. Thereafter once or twice, Ashiq asked Subhan not to bring his catties to his field. Yesterday, in the evening, Subhan's catties were grazing near the field of Ashiq. At that time, Mange Khan was, also, there. The catties of the informant Lukman were, also, there. They all slept there in the night. In the morning, the informant, Mange and Subhan went to the Dhani of Gama and were taking tea at about 9.00 a.m. in the meanwhile, the accused -appellants Ashiq, Yusuf, Phalku, Alladeeta, Haji and Kalu came there. Ashiq was armed with Barchhi while the other accused were armed with Lathis. Ashiq abused and on hearing the abuses Subhan and Mange came out -side the house. As soon as Subhan came out -side the house, Ashiq inflicted injury by the Barchhi on the head of Subhan. On receiving the injury, Subhan became unconscious and fell on to ground. Accused Yusuf and Alladeeta inflicted injuries by Lathis to Lukman. All other accused were saying 'kill him'. In the meanwhile. Moda, Nayak and Gulam came there. On seeing them coming, the accused ran away. Thereafter they took Subhan injured on a camel's back to the bus stand and sent Umar to arrange for a Jonga jeep. A Jonga jeep was arranged and Subhan was taken to Government Hospital, Chhattargarh, but the doctor was not there and, therefore, he was taken to Police Station. Subhan was unconscious at that time and on the basis of information supplied by Lukman, case under Sections 147, 148, 149 and 307 I.P.C. was registered against the accused. Later on, the injured Subhan was taken from the Police Station, Chattargarh, to the Bikaner Hospital and in the way, Subhan died and thereafter the offence under Section 302 I.P.C. was added. The prosecution, in support of its case, examined 19 witnesses and, also, placed on record 12 documents. The accused, in their defence, examined DW 1 Ayasha and placed reliance over five documents. The learned Sessions Judge, after trial, convicted and sentenced the accused - appellants as under: 1. Ashiq 148 I.P.C. Rigorous imprisonments for one yearand a fine of Rs. 100/ -, in default ofpayment of fine to further undergo onemonth's R.I.302 I.P.C. Imprisonment for life and a fine of Rs.200/ -, in default of payment of fine to further undergo two months R.I.323 read with One month's rigorous imprisonment149 I.P.C, and a fine of Rs. 50/ -, in default ofpayment of fine to further undergo 15 days' rigorous imprisonment.2. Yusuf 147 I.P.C. Six months' R.I. and a fine of Rs, 50/ -and each in default, 15 days rigorousAlladeeta imprisonment.323 I.P.C. One month's rigorous imprisonmentand a fine of Rs. 50/ -each, in default, 15 days R.I.326 read with Five years' rigorous imprisonment andSection 149 I.P.C. a fine of Rs. 100/ - each, in default, onemonth's R.I., each.3. Kalu Khan, 147 I.P.C. Six months' R.I. and a fine of Rs. 50/ -Haji Khan each, in default, 15 days' R.I.and Phalaksher326 read with Five years' R.I. and a fine of Rs. 100/ -Section 149 I.P.C. each, in default, one month's R.I. each.323 read One month's R.I. and a fine of Rs. 50/ -with Section 149 each, in default, 15 days' R.I.I.P.C. The learned Sessions Judge convicted and sentenced the accused on the basis of the evidence of four eye witnesses, namely, P.W. 1 Mange Khan, P.W. 2 Lukman, P.W. 3 Ms. Kamala and P.W. 4 Ms. Nihala. The learned Sessions Judge, also, placed reliance over certain recoveries made by the investigating officer P.W. 18 Pritam Singh, S.H.O. He, also, placed reliance over the evidence of motive produced by the prosecution.
(3.) THE learned Sesions Judge, however, did not place reliance over the testimony of P.W. 12 Gulam Hussain.;