SHARMA, J. - (1.) EIGHT appellants were placed on trial before the learned Additional Sessions Judge Deeg (Bharatpur) for having committed murder of Smt. Buddho in Sessions Case No. 118/94. The learned Judge vide judgment dated May 16, 1997 convicted and sentenced each of them as under - 1. Kamal 2. Ganga Sharan @ Sharan 3. Leele 4. Bhagwan Sahai @ Pappu 5. Harro u/sec. 147 IPc to suffer 6 months S. I. and fine of Rs. 100/- in default to further suffer 1 month S. I. u/sec. 341 IPc to suffer 3 months S. I. and fine of Rs. 100/- in default to further suffer one month S. I. u/sec. 148 IPc to suffer 6 months SI and fine of Rs. 100 in default to further suffer one month S. I. u/sec. 307/149 IPc to suffer 3 years SI and fine of Rs. 1000 in default to further suffer 6 months S. I. u/sec. 302/149 IPc to suffer imprisonment for life and fine of Rs. 1000 in default to further suffer six months S. I. 6. Mansho 7. Jawahar u/sec. 147 IPc to suffer 6 months S. I. and fine of Rs. 100/- in default to further suffer 1 month S. I. u/sec. 323 IPc to suffer 3 months SI and fine of Rs. 100/- in default to further suffer one month S. I. u/sec. 148 IPc to suffer 6 months SI and fine of Rs. 100/- in default to further suffer one month S. I. u/sec. 307/149 IPc to suffer 3 years SI and fine of Rs. 1000 in default to further suffer 6 months S. I. u/sec. 302 IPc to suffer imprisonment for life and fine of Rs. 1000 in default to further suffer six months S. I. 8. Harbhan u/sec. 147 IPc to suffer 6 months S. I. and fine of Rs. 100/- in default to further suffer 1 month S. I. u/sec. 323 IPc to suffer 4 months SI and fine of Rs. 100/- in default to further suffer one month S. I. u/sec. 148 IPc to suffer 6 months SI and fine of Rs. 100 in default to further suffer one month S. I. u/sec. 307 IPc to suffer 3 years SI and fine of Rs. 1000 in default to further suffer 6 months S. I. u/sec. 302/149 IPc to suffer imprisonment for life and fine of Rs. 1000 in default to further suffer six months S. I. u/sec. 341 IPc 3 months SI fine 100/- default one month S. I. All the sentences were ordered to run concurrently.
(2.) AS per the prosecution story, on June 7, 1994 around 6. 30 p. m. Jasmat @ Jarko was surrounded by the appellants on the way near `malin Ki Chaupal' and Kamal exhorted to kill him. Mansho, Jawahar and Harbhan had firearms, Harro, Leela and Bhagwan Sahai had Pharsas and Kamal and Sharan were armed with lathies. Hearing the shrieks of Jasmat Kanwar Singh, Vijay, Buddho (now deceased) Devla and Kundan rushed to save him. Finding Mansho, Jawahar and Harbhan about to fire at Jasmat, Buddho lay herself down on Jasmat in order to save him and in the process received gun shot injuries on her abdoman. When Kundan attempted to intervene, Harbhan opened fire at him. Harro and Leele inflicted Pharsa blows on the thigh of Buddho. Leele and Harro also gave Pharsa blows on the head of Vijay whereas Kamal and Sharan gave lathi blows on the person of Kunwar Singh and his father Devla. Buddho died on the way to the Hospital. A written report (Ex. P. 8) was submitted by Kunwar Singh to the SHO PS Kotwari Deeg on June 7, 1994 at 11. 30 p. m. and a case under Sections 147, 148, 149, 302, 307, 341, 323 IPC and 3/25 Arms Act was registered and investigation commenced. On completion of investigation chargesheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Deeg. Charges under Sections 147, 148, 323, 341, 307/149, 302/149 IPC were framed against Harro, Leele, Bhagwan Sahai, Ganga Sharan @ sharan and Kamal where as Mansho, Harbhan and Jawahar Singh were charged under Sections 147, 148, 323, 341, 302, 307/149 IPC. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr. P. C. the appellants claimed innocence. No defence witness however was produced. Learned trial judge on hearing the final submissions convicted and sentenced the appellants as indicated above. To narrate the events that occurred on the fateful evening the prosecution examined seven eye witnesses viz. Kunwar Singh (PW. 3) Ramesh (PW. 5), Jasmat (PW. 6) Kundan (PW. 7), Chhutan Singh (PW. 8) Devla (PW. 9) and Jagdish Prasad Sharma (PW. 12 ). The injuries sustained by Buddho are described by Dr. Amar Singh (PW. 1) who performed the postmortem of her body in these words- External Examination 1. Three abrasions 1cm. x 1/2 cm. on right leg 2. Abrasion 1 cm. x 1 x c. on right knee lateral aspect. 3. Multiple punctured wounds with Black margin on anterior wall of abdomen below umbilicus, Rt. thigh anterior, lateral and medial aspect, Lt. thigh median aspect upper 1/3. Internal Examination Abdomen Walls- Multiple puncture wounds with black margin throughout the wall. Peritoreum - Multiple puncture wounds on Rt. side and below umbical region. Cavity- Massive haematoma present Large intestines- Healthy with multiple puncture wounds Kidneys - Rt. side kidney covered with haematoma. Blader- Anterior wall has multiple puncture wounds Organs of- Multiple puncture wounds on generation anterior wall of uterous present. Cause of her death was shock due to blood loss, rupture of Rt. Iliac and femoral vessels by fire arm injury. Dr. Amar Singh (PW. 1) also examined the injuries of Devla, vide Ex. P. 2, Vijay vide Ex. P. 3, Jasmat s/o Devla vide Ex. P. 4, Kundan son of Devla vide Ex. P. 5 and Kunwar Singh son of Devla vide Ex. P. 6. The description of injuries is as under : Devla S/o Gyasi : 1. Bruise 5 cm. x 2 cm. on Rt. Shoulder supro anterior aspect 2. Swelling 3 cm. x 3 cm. on Rt. Scapular region. Vijay s/o Kishni : 1. Lacerated wound 5 cm. x 1/2 cm. scalp deep on mid parietal region of skull. 2. Lacerated wound 1 cm. x 1/2 cm. subcutaneous deep on middle phalanix of index finger. 3. Complain of pain on back no visible injury. Jasmat s/o Devla : 1. Incised wound 4 cm. x 1/2 cm. bone deep on mid parietal region of skull. Swelling 2 cm. x 2 cm. with Abrasion 1/2 cm. x 1/ cm. on Lt. shoulder anterior aspect. 3. Lacerated wound 1 cm. x 1/2 cm. muscle deep on Dorsam of Rt. foot. 4. Lacerated wound 1/2 cm. x 1/2 cm. with swelling 2 cm. x 2 cm. Lt. side chin. Kundan son of Devla : 1. Lacerated wound 2 mm x 2 mm. Lt. side abdomen anterior aspect with black margin. As per X-ray report Ex. P. 7, two radiopaque pallet shadows were noted in Lt. abdominal region. Kunwar Singh son of Devla : 1. Complain of pain Rt. scapular region No visible injury. Learned counsel for the appellants pointed out following infirmities in the prosecution case :- (i) As per the testimony of Kunwar Singh, Kishni, Ramesh, Jasmat, Kundan and Devla appellants Mansho, Jawahar and Harbhan were standing on a higher place and Buddho was at a lower place therefore direction of fire arm shot ought to have been downwards, but the direction of the shot that hit Buddho was found straight by the autopsy surgeon Dr. Amar Singh (PW. 1 ). Thus there is an inconsistency between the ocular testimony and medical evidence. (ii) As per the testimony of the eye witnesses there was a distance about 15-20 ft. between Mansho, Jawahar and Harbhan and the deceased Buddho and other appellants Kamal, Ganga Sharan @ Sharan, Leela, Bhagwan Sahai @ Pappu and Harro, who had surrounded her and they were only at a distance of 2-3 steps from her therefore, had the incident occurred as narrated by the eye witnesses the shots that were fired at a distance of 15-20 ft. ought to have hit Kamal, Ganga Sharan, Leele, Bhagwan Sahai and Harro and it was next to impossible that the shots would have hit only Buddho. This improbability shows that origin and genesis of the occurrence has been withheld by the prosecution. (iii) According to FIR, just before Harbhan, Mansho and Jawahar fired the shots at Jasmat, Buddho, Devla and Kundan rushed to save him and Buddho lay herself down on Jasmat and sustained gun shots on her abdomen. But at the trial Kunwar Singh, Ramesh, Jasmat, Kundan and Devla deposed that first shot that hit Buddho on abdomen was fired by Mansho and another was fired by Jawahar which also hit on her abdomen. However as per the deposition of Dr. Amar Singh all the multiple wounds received by Buddho on her abdomen could be caused by one fire. These contradictory versions create doubt in the prosecution story. (iv) In view of the testimony of eye witnesses where two 12 bore SBBL Guns and one Country made Pistol were simultaneously fired, there ought to have been 300 pellets at or near the place of incident but as per site plan (Ex. P. 12) only one pellet and one `dot kartoos' were found. Site plan thus pollutes the prosecution story. (v) As per the testimony of eye witnesses, the appellants Harro, Leele and Bhagwan Sahai had inflicted injuries with pharsas on Jasmat Devla and Vijay. But as per injury report (Ex. P. 2) Devla only sustained bruise and swelling whereas Jasmat vide Ex. P. 4 received only one incised wound. Vijay as per injury report (Ex. P. 3) did not receive any injury with sharp edged weapon. It is thus not established as to who caused that sharp injury on the person of Jasmat. (vi) Jasmat in his deposition stated that he sustained injuries with pallets on his foot but there is no such injury in his injury report Ex. P. 4. Similarly injuries with Pharsas on the thigh of Buddho were attributed to Harro and Leele but in the post mortem report of Buddho no such injuries were found. (vii) All the witnesses deposed that Kamal and Ganga Sharan inflicted lathi blows on the person of Kunwar Singh but no injury was found on his person vide injury report Ex. p. 6. (viii) In his deposition Jasmat stated that he was wearing safi (turban) which was cut into four pieces after receiving the pharsa blow, whereas Kundan deposed that Jasmat was not wearing safi while he received pharsa blow. (ix) Pharsas allegedly recovered were not stained with blood and recovery of fire arms from the open place was doubtful. Recovered weapons were not produced in the trial Court. (x) Independent witnesses were not produced. (xi) Version that the accused had hidden themselves behind the stones was introduced only at the trial in order to establish inlawful assembly. In support of the submissions learned counsel placed reliance on various authorities that shall be considered at the. . . . . . . juncture. On the other hand learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and urged that the eye witnesses are the natural and truthful witnesses. In the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, memory and due to shock and horror at the time of the incident. It is established that Buddho had died of fire arm injuries and all the appellants were rightly convicted by the learned trial court.
(3.) IN order to find out tenability of the rival submissions, we may now delve deep into the facts and circumstances of the case. Jasmat in his deposition stated that in the evening around 6-7 PM while he was on his way to visit the house of his uncle, Kamal, Harro, Mansho, Jawahar, Bhagwan Sahai, Leele, Harbhan and Sharan, who were standing near `malion Ki Chaupal' surrounded him. IN the cross examination he however deposed that he was only encircled by five persons, and three others namely, Mansho, Harbhan and Jawahar were standing at a distance of 10-12 ft. under a tin- shed. He also admitted that he had seen all the eight persons when they were five steps away from him. He also stated that in the afternoon of that day his cousin Ramesh informed him that buffalo of his uncle had some stomach trouble, therefore in order to enquire well being of buffalow, he proceeded towards his uncle's house. INvestigating Officer Ram Swaroop Yadav stated that the tin shed where the three accused armed with fire arms stood, was at a distance of 30-32 ft. from the place of incident. He further stated that Buddho had lost her life due to quarrel between the two groups. INvestigating Officer was not able to say as to what was the motive behind killing of Buddho. He further stated that when he went to the village he had heard that Jawahar was not involved in the incident. Witness Ramesh however stated that about 500 persons gathered at the place of incident. Harish Chand, H. C. Armer, who examined the SBBL 12 Bore Gun and SBBL 12 Bore country made Pistol recovered at the instance of Mansho and Harbhan and vide Ex. P. 37, opined that they were fit for firy action. SBBL 12 Bore Gun recovered at the instance of Jawahar was also found fit for firy action as per Armer report Ex. P. 36. Testimony of Kunwar Singh, Kishni, Ramesh, Jasmat, Kundan and Devla reveals that Mansho, Jawahar and Harbhan were standing on a higher place and Buddho was at a lower place and there was distance about 15-20 ft. between them and Buddho. They further stated that Kamal, Ganga Sharan @ Sharan, Leele, Bhagwan Sahai @ Pappu and Harro had surrounded Buddho and they were only at a distance of 2-3 steps from her. Kunwar Singh, Ramesh, Jasmat, Kundan and Devla further deposed that first shot that hit Buddho on abdomen was fired by Mansho and another was fired by Jawahar which also hit on her abdomen. As per the deposition of Dr. Amar Singh, all the multiple wounds received by Buddho on her abdomen could be caused by one fire. Buddho however did not receive injuries on her thigh as per the post mortem report, although the prosecution case is that Harro and Leele inflicted Pharsa blows on her thigh. The prosecution case further is that Harro, Leele and Bhagwan Sahai had inflicted injuries with Pharsas on Jasmat, Devla and Vijay, but as per injury reports Devla sustained bruise and swelling whereas Jasmat received only one incised wound over his head. Vijay also did not receive any incised wound on his person. Kunwar Singh although stated that Kamal and Ganga Sharan inflicted lathi blows on his person but no injury was found in the injury report of Kunwar Singh. In his deposition Jasmat stated that he was wearing safi (turban) which was cut into four pieces after receiving the pharsa blow, but according to Kundan, Jasmat was not wearing Safi. In the FIR it was not mentioned that the accused had hidden themselves behind the stones and this story appears to have been introduced for the first time at the trial. Let us first advert to the submissions advanced in regard to the charge of unlawful assembly. On examination of entire evidence of the prosecution we do not find a single fact which could show that there was previous ill will or enmity between Jasmat and the appellants. It also does not appear from the record that the appellants had prior knowledge about Jasmat's visit to his uncle house. From the testimony of Jasmat it is evident that he took decision to enquire about well-being of his uncle's buffalow all of sudden and proceeded towards his uncle's house. It also appear that Mansho, Harbhan and Jawahar were standing under a tin-shed at a distance of about 30 ft. from the other appellants and as per the testimony of Ramesh around 500 persons gathered at the time of incident. It is also not established that all the eight appellants came together at the place of incident and the appellants Kamal, Ganga Sharan, Leele, Bhagwan Sahai and Harro already knew as to what was in the mind of Mansho, Harbhan and Jawahar who were standing at a distance of 30 ft. from them. It could not be proved that unlawful object to kill Buddho, who suddenly lay herself down on Jasmat, was developed at any point of time prior to the actual occurrence. ;