K. C. SHARMA, J. - (1.) SINCE these two appeals arise out of the judgment in Sessions case No. 10/94, therefore, both the appeals are being decided by a common judgment.
(2.) THE aforementioned two appears under Section 374 Cr. P. C. arise out of the judgment of conviction and order of sentence dated 19. 11. 1999 passed by the Special Judge (Communal Riots Cases/man Singh Murder Case), Jaipur whereby the learned trial Judge convicted the four appellants for offence under Sections 302, 120-B IPC and sentenced each of them to undergo life imprisonment and to pay fine of Rs. 5000/- each. In default of payment of fine to further undergo simple imprisonment for one year. Succinctly stated the facts of this case are that on 10. 8. 91 at 12:30 AM, Iqbal Ahmed (PW 25) made an oral report at the Police Station Shastri Nagar, Jaipur alleging that on 9. 8. 91 at about 11. 00 P. M. he and Iqbal son of Noor Mohammad Qureshi went on Motor Cycle to the house of Iqbal situated in Bhindon Ka Rasta on a motor cycle, where he left the company of Iqbal and went to his house. Later-on, Iqbal came to him and informed that Mahesh had told that he will hand over possession of the house to some one else, if Iqbal fails to return up to 2 O'clock in the night. Thereafter both of them left for Sikar house on a motor cycle and reached the house of Chhitar Hanuman. Bhanwar Singh opend the gate and said that he will find out whether Mahesh was present in the house or not. There-upon, Qureshi told that he himself will be coming to find out the presence of Mahesh and then Iqbal Qureshi went upstairs, were son of Mahesh informed that Mahesh was not present in the house. Iqbal Qureshi then told Bhanwar Singh that if Mahesh Comes, he be detained at the house itself. Leaving the message, both of them went to purchase cigarette and left the place on the motor cycle. Iqbal Qureshi was driving the motor cycle, while Iqbal Ahmed was sitting on the rear seat. It was alleged that as soon as they reached near the power house road, two boys who were already sitting there on the chairs, asked them to stop the vehicle. As per the complainant, soon the vehicle stopped, one of the persons opened gun fire on the chest of Iqbal Qureshi from a very close distance, as a result thereof Iqbal Qureshi fell down The complainant further alleged that he chased the accused and saw one person running towards the house of Ajij, while another was running in straight direction. The complainant then proceeded towards the house of Ajij. But both the accused disappeared. He got awakened one Raju and then both of them went to Qureshi, who was breathing. Thereafter, they went to the house of hanif, got him awakened and them came to the place of incident in a vehicle. By that time, Deputy Superintendent of Police took Iqbal Qureshi to the Hospital. They also went to the hospital and then came to know that Iqbal Qureshi scummbed to the gun shot injury. Lastly, the complainant alleged that the shooter was dwarf and wearing white shirt, while another accused was also wearing white shirt. On the basis of above oral report, the police registered a criminal case vide FIR No. 326/1991, Ex. P. 24 for offence under Section 302 IPC and proceeded with the investigation. In the course of investigation, the police rushed to the place of incident and prepared site plan, Ex. P6 and seized controlled soil and blood stained soil from the place of incident vide seizure memos Exs. P7. The inquest report (Ex. P. 16) of the dead body was prepared and the blood stained clothes of deceases were also seized vide seizure memo Ex. P17. A motor-cycle No. DDW 1713 of blue colour having blood stains on its fuel tank and handle was seized vide memo Ex. P. 11. Accused Asif was arrested on 10. 2. 1995, vide arrest memo Ex. P1. He furnished information under Section 27 of the Evidence Act as regards recovery of a Deshi Katta. Pursuant to his information Ex. P. 30, one Deshi Katta was recovered by the police at the instance of accused Asif vide memo Ex. P. 3. Accused Mahesh Chand Gupta, Mohd. Hanif and Abdul Ajij were taken into custody on 30. 10. 91, 29. 9. 91 and 27. 9. 91 vide arrest memos Exs. P. 20, 21 and 22, respectively. One Maruti Van No. DDV 7834 was also seized by the police vide memo Ex. P2.
(3.) THE post mortem on the dead body was conducted by PW 19 Dr. H. L. Bairwa, who prepared the post mortem report Ex. P. 23. On dissection of body the Doctor found 7 injuries. All the injuries were found to be ante-mortem in nature. In the opinion of Dr. H. L. Bairwa the cause of death was shock and hemorrhage brought about as a result of injuries to vital organs. Dr. Bairwa noticed injury No. 7, punctured lacerated wound of size 3 cm x 1-1/2 cm placed on left side front of chest and 0. 2cm above and medial to left angle over 4th intercostal space on mid mammary line of chest obliquely placed and oval in shape with collor of abrasion present and blackening present around the would with tattooing present in an area of 15 x 11 cm of left side front chest around the wound more on right side, medial and lower sides of wound and few tattooing marks present over left side upper part of abdomen and singeing of hairs around the would present and the margins are invested placed. On dissection of chest and abdomen cavity the wound track going through left side 4th intercostal space near costo-chondal junction obliquely placed of size 3-1/2 cm x 2 cm and on further exploration, track going downwards oblique through crossing the media-sternum and pericardium and lower part of both verticals of heart from left to right side through and through, the size 5 x 3 cm and with haemopericardium 150 CC about clotted blood. THEn track going downwards obliquely crossing the centre part of diaphragm through and through. THEn track going to left lobe of liver from supero anterior surface to infero- posterior surface of liver through and through of size 6 x 4 cm each of size. THEn track going downwards and oblique after piercing the peritoneum. THEre is haemoperitoneum containing about 1000 CC of blood. On further exploration, track going downwards oblique on right side of abdomen piercing right side peritoneum near kidney right side which is also pierced the right kidney through and through upper part of kidney and reaching upto right retroperitoneal region and huge amount of ante-mortem haemotoma present and bullet recovered from this space. After completion of entire formalities as to the investigation, the police submitted a charge sheet against the accused appellants in the court of Additional Chief Judicial Magistrate, No. 6, Jaipur City, Jaipur. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. The learned trial Judge, on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the accused and the Public Prosecutor, framed charges against six accused, including four appellants. The accused denied the charges and claimed trial. ;