MATHUR,J. - (1.) This appeal is directed against the judgment of the learned Additional Sessions Judge, Nohar dated 8.9.1998 convicting the appellants Kalu Ram and Amar Singh for the offence under section 302 and 302/34 Indian Penal Code respectively. Both of them have been sentenced to imprisonment for life and to pay a fine of Rs. 1000/-. Appellant Kalu Ram has further been convicted for the offence under section 452 and 326 Indian Penal Code and sentenced to seven years rigorous imprisonment & to pay a fine of Rs. 1000/- on each count. For the same offences, appellant Amar Singh has been convicted with the aid of Section 34 Indian Penal Code and sentenced similarly.
(2.) The factual scenario as emerged during the trial is that on 21.6.1997 at about 7.30 AM, a telephonic information from unknown person was received at Police Station, Nohar to the effect that in village Bhadra, murder of Zindu Ram has been committed. The information was entered in the Rojnamcha Register vide Ex.P. 46 by P.W. 10 Ramjas, S.H.O. of the Police Station. The police rushed to the place of incident and found P.W.1 Sahab Ram, son of the deceased Zindu Ram lying in injured edition. P.W. 10 Ramjas recorded his statement vide E.x.P 1. He stated that on 20th June, 1997 at about 9-9.30 PM while he alongwith his deceased father Zindu Ram and mother P.W. 2 Chiriya were sitting in the compound of the house and taking food, appellants Kalu Ram and Amar Singh arrived. Appellant Kalu Ram was carrying "gandasi" in his hand and Amar Singh had a pistol. Amar Singh caught hold of his father Zindu Ram by neck and thrashed him saying "Zindiya to aajkal netagiri jyada karta hai". On his intervention, appellant Kalu Ram from the sharp edged side of "gandasi" inflicted injury on the back side of knee of left leg. On intervention by his mother, P.W 2 Chiriya, appellant Amar Singh threw her on the ground. Zindu Ram was dragged outside the house. In the street, Amar Singh fired pistol at Zindu Ram and Kalu Ram inflicted injuries by "gandasi". Zindu ram succumbed to the injuries. On the basis of 'parcha bayan' of P.W. 1 Sahab Ram, the F.I.R. Ex.P. 48 was registered for the offence under section 302, 458, 326 and 323 and 34 Indian Penal Code and Section 7 of the Arms Act. The police prepared the inquest report and sent the dead body for post mortem. The accused were arrested and the recoveries of incriminating articles were made in pursuance of the information given by them. After usual investigation, police laid chargesheet against both the appellants for the above mentioned offences. The appellants denied the charges levelled against them and claimed trial. The prosecution examined ten witnesses and produced certain documents to prove its case. In statement under section 313 CrPC, appellants denied the correctness of the prosecution evidence appearing against them. The trial Court relying on the statements of the eye witnesses P.W. 1 Sahab Ram and P.W. 2 Chiriya corroborated by the medical evidence and other circumstantial evidence found the prosecution case proved beyond reasonable doubt. The learned Additional Sessions Judge convicted and sentenced the appellants in the manner noticed above.
(3.) Assailing the conviction, it is vehemently argued by Mr. H. S.S. Kharlia learned counsel for the appellants that it was a blind murder and since none of the alleged eye witnesses had actually seen the occurrence, they had roped-in appellants on mere suspicion. Learned counsel has severely criticized the conduct of both P.W. 1 Sahab Ram and P.W. 2 Chiriya being contrary to the ordinary human conduct. It is submitted that the incident is alleged to have taken place at about 9-9.30 PM and the dead body of Zindu Ram remained lying unattended for the whole night. Such a conduct was not expected from the wife and son of the deceased. It is suggested that the murder might have taken place somewhere else and both the alleged eye witnesses were not even aware till morning as to the manner of the incident and the names of the actual assailants. Learned counsel has pointed out serious infirmities in the investigation inasmuch as the pellets and wads were not collected from the place of incident. Learned counsel has also raised contention with respect to exact timing of the incident on the basis of the statement of P.W. 5 Dr. J. P. Swamy. On post mortem, he found the semi digested food in the stomach of the deceased. It is also submitted that no explanation has been given for delay in filing the F.I.R. It is also submitted that as far as appellant Amar Singh is concerned, in the facts and circumstances of the case, it cannot be said that he shared the common intention in the murder of Zindu Ram with co-accused Kalu Ram.;