SHARMA, J. - (1.) THE nine appellants were placed on trial before learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 20/97 for having committed murder of Ram Lal. Learned Sessions Judge vide judgment dated May 18, 1999 convicted and sentenced the appellants as under:- (1) Babu Lal s/o Chhaju Ram & (2) Chhaju Ram: U/s. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 10000/-, in default to further suffer Six Months Rigorous Imprisonment. U/s. 148 IPc To suffer One Year Rigorous Imprisonment and fine of Rs. 1000/-, in default to further suffer One Month Rigorous Imprisonment. U/s. 201 IPc To suffer Five Years Rigorous Imprisonment and fine of Rs. 2000/- , in default to further suffer. Three months Rigorous Imprisonment. U/s. 364 IPc To suffer Seven Years Rigorous Imprisonment and fine of Rs. 5000/-, in default to further suffer. Three Months Rigorous Imprisonment. (3) Murlidhar: U/s. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 10000/-, in default to further suffer Six Months Rigorous Imprisonment. U/s. 148 IPc To suffer One Year Rigorous Imprisonment and fine of Rs. 1000/-, in default to further suffer One Month Rigorous Imprisonment. U/s. 201 IPc To suffer Five Years Rigorous Imprisonment and fine of Rs. 2000/- , in default to further suffer Three Months Rigorous Imprisonment. U/s. 364 IPc To suffer Seven Years Rigorous Imprisonment and fine of Rs. 5000/-, in default to further suffer Three Months Rigorous Imprisonment. U/s. 379 IPc To suffer One Year Rigorous Imprisonment and fine of Rs. 1000/-, in default to further suffer One Month Rigorous Imprisonment. (4) Khema Ram, (5) Deepa Ram, (6) Sheopal, (7) Babu Lal s/o Deepa Ram, (8) Sagar Mal and (9) Laxman Prasad: U/s. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 10000/-, in default to further suffer Six Months Rigorous Imprisonment. U/s. 148 IPc To suffer One Year Rigorous Imprisonment and fine of Rs. 1000/-, in default to further suffer One Month Rigorous Imprisonment. U/s. 201 IPc To suffer Five Years Rigorous Imprisonment and fine of Rs. 2000/- , in default to further suffer Three Months Rigorous Imprisonment. All the sentences were directed to run concurrently. , +
(2.) IT is the case of the prosecution that on November 2, 1996 around 6. 30 PM while Ram Lal (now deceased) was coming back to his house from Reengus on a camel cart of Mana Ram, appellant Khemaram and his family members got Ram Lal down from the camel cart and took him to their house where he was beaten by them and thereafter he was taken to some unknown place. Rameshwar, the brother of Ramlal, on coming to know about the incident in the morning of November 3, 1996, lodged a written report with the Police Station Govindgarh where a case under Sections 147, 148, 149 and 364 IPC was registered and investigation commenced. On receiving the dead body of Ramlal Section 302 IPC was also added. After thorough investigation, the Investigation Officer submitted charge sheet. The investigation however was kept pending under Section 173 (8) Cr. P. C. against Bhagirath Mal. In due course the case came up for trial before the learned Sessions Judge, Jaipur District, Jaipur, who discharged the co-accused Smt. Sarli and Moharli and framed charges under Sec. 120b/364, 148, 120b/149/302, 120b/201 and 394/397 against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as may as 34 witnesses and got exhibited 75 documents. In their explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness however in defence was examined. The learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. We have pondered over the rival submissions and scanned the material on record. The evidence adduced at the trial by the prosecution may be divided into seven sub-heads thus:- (1) Evidence of criminal conspiracy; (2) Evidence of abduction; (3) Evidence of causing injuries in the house of Khema Ram; (4) Evidence of carrying the body in tractor-trolly; (5) Medical evidence; (6) Evidence of recovery of lathis. So far as evidence of Criminal Conspiracy is concerned, the prosecution examined Ajeet Singh (PW. 3), Hari Ram (PW. 15) and Kalu Ram (PW. 31) but the learned Trial Judge did not place any reliance on their testimony and held that it was not sufficient to establish the allegation of Criminal Conspiracy. Then comes the evidence of abduction. Mana Ram (PW. 2) in his deposition stated that on the fateful day he was coming from Reengus in his camel-cart along with his son Sardara, Girdhari Kumawat and Ramlal (deceased ). After dropping Girdhari Kumawat at Manawali Dhani, the camel-cart proceeded towards village Hasteda. As soon as it reached at Khema Ram Jat's well, Murlidhar and Chhaju Ram caught hold of Ramlal and got him down of the cart. Chhaju Ram, Babu Lal s/o Chhaju Ram, Murli Ram and Bhaggu Ram then started beating him with lathis. In his cross examination Mana Ram stated that he remained at the place of occurrence about twenty minutes and raised hue and cry but he did not know as to at which place Ram Lal was taken by those persons. Sardar Mal (PW. 4) corroborated the testimony of Mana Ram and deposed that Murlidhar, Chhaju Ram, Bhaggu Ram Babu Lal s/o Chhaju Ram pushed Ramlal down of the camel-cart. Babu Lal gave a lathi-blow on the person of Ramlal. He was then bodily lifted by them and was taken inner and inner. There was some darkness but light was on infront of the house of Khema Ram. In his cross examination Sardar Mal however stated that although he had seen 10 persons but he did not know the names of all persons. Girdhari Lal (PW. 14) was although declared hostile but he admitted that camel-cart of Mana Ram proceeded from Reengus at about 6. 30 PM and he alongwith Ramlal, Mana Ram and Sardar had travelled in the camel-cart. As his house situated on the way therefore he got down from the cart. Satya Narain (PW. 18) did not toe the prosecution story and was declared hostile. Sunda Ram (PW. 19) was also declared hostile but he admitted that Mana Ram had come to Satya Narain's shop and told that Ramu had been pushed down of his camel-cart.
(3.) LEARNED Senior counsel canvassed that the evidence on the point of abduction of deceased Ramlal by the appellant Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram is wholly inconsistent besides being highly unnatural. The contemporaneous reaction of Mana Ram and Sardar Mal clearly betrays absence of these witnesses at the time of alleged abduction. It is further contended that there was complete darkness and the way was surrounded by `sarkandas' from both sides therefore it was not possible to identify anybody. In order to appreciate the contention we have closely scrutinised the testimony of Mana Ram (PW. 2) and Sardar Mal (PW. 4 ). Both are the independent witnesses and their testimony could not be shattered in the cross examination. Both of them deposed that there was some darkness only and they had identified appellants Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram. In Ram Gulam Chaudhary vs. State of Bihar (1), counsel representing the accused made similar submissions before the Hon'ble Supreme Court. It was urged that as there was no light it was not possible for the witnesses to identify the accused or to see the incident. Their Lordships of the Supreme Court while rejecting the submissions, observed in para 34 thus:- " We see no substance in this submission also. It must be remembered that the incident had taken place in a village. As has been held by this Court in the case of Kalika Tiwari vs. State of Bihar (JT 1997 (4) SC 405 = (1997) 4 SCC 445), the visible capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. It has been held that the visibility of villagers conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. " We do not find any merit in the submission of learned Senior Counsel. We are of the view that even in the faint darkness the faces of the accused could be identified, more so when they are known to the witnesses. On examining the testimony of Mana Ram and Sardar Mal from the point of view of trustworthiness we find that they have not spoken untruth and their testimony has not been polluted. Girdhari Lal (PW. 14) corroborated this fact that deceased Ramlal took a ride on the camel-cart of Mana Ram along with him and he got down on the way. Sunda Ram (PW. 19) also supported the testimony of Mana Ram by stating that Mana Ram came to Satya Narain's shop and said that the deceased had been pushed down of his camel-cart. The prosecution in our opinion is able to establish that the appellants Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram got Ramlal down from the camel-cart and after beating Ram Lal they took him to a place which was not known to the witnesses. In order to prove the fact that injuries were caused to Ramlal in the house of Khema Ram, the prosecution examined Babu Lal (PW. 5), Ram Ratan (PW. 7), Isro (PW. 10), Govind (PW. 13) and Manbhari (PW. 8 ). In his deposition Babu Lal (PW. 5) stated that in the evening of November 2, 1996 on hearing hue and cry when he came out of his house he did not find anybody. After a short while he heard whisper coming out of the house of Khema. Lights of the house were on and a tractor trolly stood out side. Inside the house Ramlal was lying soaked with blood, on a `gudari' surrounded by Bhaggu, Deepa, Sheopal, Laxman, Babulal, Chhajya, Murli, Babulal s/o Chhaju, Khema and 3-4 women. All were armed with lathis. On seeing him they asked as to what was the doing there and threatened him not to tell the incident to any body. In his cross examination Babu Lal stated that when he reached near the house of Khema, he found Manbhari already standing there. He further stated that well of Ishwar Lal, the father of Ram Lal, situated nearby at some distance from the house of Khema but he did not narrate the incident to them. He did not see Ishwar Lal and Ram Ratan near the place of incident. After seeing the incident he went to his house and slept. Ram Ratan (PW. 7) and Isro (PW. 10) who respectively are brother and father of deceased Ram Lal, deposed that on November 2, 1996 they were on their field. Around 7-8 PM on hearing noises in the house of Khema, they proceeded nearer to his house and at a distance of 100 steps they saw 10-11 persons and 2-3 women having lathis in their hands. There stood tractor trolly outside the house and lights were on inside. Khema was telling Bhaglya to kill some body. Noises were continued for twenty minutes. Khema, Chhaju, Murli, Babu Lal s/o Chhaju, Moharli w/o Chhaju, Bhaglya, Ganeshya, Deeplya, Sheopala, Laxman Babu Lal s/o Deepa, Sagar, Sarli w/o Bhaggu were inside the house. Bhaggu then asked Laxman to start the tractor and then something was put in the tractor and it proceeded towards Reengus. The witnesses further stated that they did not find abnormality in the conduct of those persons as it was their daily routine to drink in the evening and make noises. Govind (PW. 13) stated that while he was passing near the house of Khema he heard the whisper and saw the nine appellants, one bhagya and two women Sarli and Moharli. Khema was exhorting to kill some body. A tractor trolly was standing out side the house. He then went to his house. Manbhari (PW. 8) however did not toe the prosecution line and was declared hostile. ;