GARG, J. - (1.) THE abovementioned two appeals are being decided by this common judgment as in both of them common questions of facts and law are involved and both of them have been preferred against the same judgment and order dated 7.9.2001 passed by the learned Addl. Sessions Judge (Fast Track), Bikaner in Sessions Case No. 24/2001.
(2.) IT may be stated here that in that Sessions Case No. 24/2001, nine accused persons were tried and out of nine accused persons, the learned Addl. Sessions Judge (Fast Track), Bikaner through impugned judgment and order dated 7.9.2001 convicted and sentenced the four accused persons, namely, Ramnarayan, Banwari, Mohanlal and Bastiram (accused appellants of appeal No. 798/2001) in the following manner:- Name of accused appellants convicted under section 1. Banwari 2. Bastiram 302, 302/34 IPC Life Imprisonment & fine of Rs. 1500/-, in default of payment of fine, to further undergo two months' RI. 307/34 IPC Five years' RI and fine of Rs. 500/-, in default of payment of fine, to further undergo one month RI. 3.Mohanlal 4.Ramnarayan 302/34 IPC Life Imprisonment & fine of Rs. 1500/-, in default of payment of fine, to further undergo two months' RI. 307, 307/34 IPC Five years' RI and fine of Rs. 500/-, in default of payment of fine, to further undergo one month RI. All the above substantive sentences were ordered to run concurrently. IT may further be stated here that by the same judgment and order, the learned Addl. Sessions Judge (Fast Track) acquitted the above four accused appellants of appeal No. 798/2001 for the offence under sections 148, 341, 323, 323/149, 324, 324/149 IPC and he also acquitted accused appellants Ramnarayan for the offence under section 27 of the Indian Arms Act and accused appellant Banwari for the offence under section 25 of the Indian Arms Act. IT may further be stated here that by the same judgment and order, the learned Addl. Sessions Judge (Fast Track) acquitted the remaining five accused persons, namely, Rampratap, Bhagwanaram, Mangilal, Ramjus and Hariram (accused respondents of appeal No. 528/2002) of all the charges framed against them i.e. for the offence under sections 148, 323, 323/149, 324, 324/149, 341, 307/149, 302/149 IPC. Against acquittal of these five accused persons, the State of Rajasthan has preferred appeal No. 528/2002. D.B. Criminal Appeal No. 798/2001 The facts giving rise to this appeal, in short, are as follows:- On 20.5.1995 at about 7.15 PM, PW17 Tara Chand, SHO Police Station Nokha District Bikaner received a cryptic telephonic message from unknown person to the effect that in Ward No. 2 village Nokha, Ram Pratap Bishnoi (accused, who was acquitted by the learned Addl. Sessions Judge (Fast Track)) and Sohan Lal Bishnoi (PW4), who are real brothers, were fighting and arms, lathies, barchiyas etc. were being used in that fighting and two persons had died. That information was reduced in writing by PW17 Tara Chand in Rojnamcha Ex.P/52 and thereafter, he alongwith Hardeep Singh, SI (PW13), Mangilal, ASI (PW6), Balraj Singh, ASI and other police officials reached at the place of occurrence. The further case of the prosecution is that at the place of occurrence, PW4 Sohanlal gave a parcha bayan Ex.P/17 to PW17 Tara Chand at about 8.30 PM on 20.5.1995 stating inter-alia that they are four brothers and all the brothers had their own house adjacent to each other and sometime back, his brother Genaram (PW1) installed a Dharm-kanta on Roda road and thereafter, after five years of that, accused Rampratap (who has been acquitted by the learned Addl. Sessions Judge (Fast Track)) also installed a Dharm-kanta on that road and because of that, relations between them were not cordial. It was further stated in the parcha bayan Ex.P/17 by PW4 Sohanlal that at about 6.30-6.45 PM, he and Om Prakash (PW3) son of PW1 Genaram were sitting in the Jameshwar Temple, which was near to his house and at that time, his two sons, namely, Ramnarayan (hereinafter referred to as "the deceased Ramnarayan") and Mohanlal (hereinafter referred to as "the deceased Mohanlal") came out from his house and when they reached near the house of accused Rampratap, the accused appellants, namely, Bastiram, Mohanlal, Ramnarayan and Banwarilal (who have been convicted for the offence under sections 302, 302/34 IPC by the learned Addl. Sessions Judge (Fast Track)) and other accused persons, namely, Mangilal, Ramjus, Hariram, Rampratap, Bhagwanaram (who have been acquitted by the learned Addl. Sessions Judge (Fast Track)) and Maniram (hereinafter referred to as "the deceased accused Maniram") came out from the house of accused Rampratap and at that time, the accused appellants, namely, Bastiram, Mohanlal, Ramnarayan and Banwarilal were having pistols; the accused Rampratap was having Jayee; the accused Bhagwanaram and Mangilal were having barchi and the accused Ramjus and Hariram were having Sela. It was further stated in the parcha bayan Ex.P/17 by PW4 Sohanlal that all these accused persons surrounded his sons deceased Mohanlal and deceased Ramnarayan and made hue and cry that they be killed and upon this, PW3 Om Prakash rushed towards the place of occurrence and at that time, his sons, namely, Rameshwarlal (hereinafter referred to as "the deceased Rameshwarlal) and Rajaram (PW10) also came there from the side of Dharm-kanta and thereafter, the accused appellant Banwarilal made fire by pistol towards his son deceased Mohanlal, as a result of which, he fell down on the ground and the accused appellant Mohanlal also made fire by pistol towards deceased Ramnarayan and the accused appellant Ramnarayan also made fire by pistol towards PW10 Rajaram which struck on his leg and the accused appellant Bastiram made fire on deceased Rameshwarlal and the other accused persons also caused injuries by Sela, Barchi, etc. and thereafter, when the police came, all the accused persons ran away from the scene. It was further stated in the parcha bayan Ex.P/17 by PW4 Sohanlal that his son deceased Mohanlal died on the spot and deceased Ramnarayan, injured Rajaram (PW10) and deceased Rameshwarlal were taken in serious condition to the hospital. It was further stated in the parcha bayan Ex.P/17 that all the accused persons including deceased accused Maniram came there after forming an unlawful assembly. On the parcha Ex.P/17, the police registered the case and chalked out regular FIR No. 96/95 (Ex.P/20) and started investigation. During investigation, after inspecting the place of occurrence, the police prepared the site plan Ex.P/7 and description memo Ex.P/7A showing the details and position of place of occurrence. It may be stated here that thereafter, deceased Rameshwarlal and deceased Ramnarayan succumbed to their injuries. The post mortem of the dead body of the deceased Mohanlal was got conducted by the Medical Board and PW18 Dr. D.K. Purohit was one of the members of the Medical Board and the post mortem report of the deceased Mohanlal is Ex.P/87 where it was opined by the Medical Board that death has resulted from haemorrhagic shock because of the injuries to the vital organs. The post mortem of the dead body of the deceased Rameshwarlal was also got conducted by the Medical Board and PW16 Dr. G.L. Jaipal was one of the members of the Medical Board and the post mortem report of the deceased Rameshwarlal is Ex.P/51 where it was opined by the Medical Board that the cause of death was shock and haemorrhage as a result from multiple intra abdominal injuries caused by pallents of short gun fire arm. It was further opined that injuries No. 4 and 5 collectively as well as individually were sufficient to cause death in ordinary nature of course. Before that, deceased Rameshwarlal was also got medically examined by PW16 Dr. G.L. Jaipal and his injury report is Ex.P/50. The X-ray report of deceased Rameshwarlal is Ex.P/41. It may be stated here that deceased Rameshwarlal also gave a parcha bayan to PW17 Tara Chand and DW11 Rajendra Kumar Sharma also recorded his dying declaration and the same is Ex.D/63. The post mortem of the dead body of the deceased Ramnarayan was also got conducted by the Medical Board and PW18 Dr. D.K. Purohit was one of the members of that Medical Board and the post mortem report of the deceased Ramnarayan is Ex.P/86 where it was opined by the Medical Board that the death has resulted from haemorrhagic shock. PW10 Rajaram was also got medically examined by PW16 Dr. G.L. Jaipal and his injury report is Ex.P/49 and his X-ray report is Ex.P/38 and he received injuries caused by short gun fire arm, but the same were found simple in nature. The further report of PW10 Rajaram is Ex.P/48, which shows that rounded metallic shadow was found. The accused appellants Banwarilal, Ramnarayan, Mohanlal and Basti Ram were arrested through arrest memos Ex.P/57, Ex.P/61, Ex.P/90 and Ex.P/91 respectively. It may be stated here that in the same incident, the accused appellant Ramnarayan has received injuries and his injury report is Ex.D/11A and furthermore, deceased-accused Maniram has also died. No doubt the post mortem report of deceased-accused Maniram is on the record of this case, but the same was not got exhibited. After usual investigation, the police filed challan for the offence under sections 302, 307, 323, 324, 341, 147, 148, 149 IPC and 25 and 27 of the Indian Arms Act against nine accused persons in the Court of Judicial Magistrate First Class, Nokha, Bikaner and from where the case was committed to the Court of Sessions and thereafter, it was transferred to the Court of Addl. Sessions Judge (Fast Track), Bikaner. On 21.8.1996, the learned Addl. Sessions Judge No. 2, Bikaner framed the charges against the accused persons in the following manner:- Name of accused Charges Accused appellants 1. Banwari 148, 323, 323/149, 324, 324/149, 341, 302, 302/149, 307/149 IPC and 25 of the Arms Act. 2. Mohanlal 3. Bastiram 148, 323, 323/149, 324, 324/149, 341, 307/149, 302, 302/149 IPC 4. Ramnarayan 148, 323, 323/149, 324, 324/149, 341, 302/149, 307 IPC and 27 of the Arms Act Other accused persons 5. Rampratap 6. Ramjus 7. Hariram 8. Mangilal 9. Bhagwanaram 148, 323, 323/149, 324, 324/149, 341, 307/149, 302/149 IPC. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During the course of trial, as many as 21 witnesses were examined by the prosecution and many documents were got exhibited. Thereafter, statements of the accused persons under section 313 Cr.P.C. were recorded. In the statements recorded under section 313 Cr.P.C., the accused appellants Mohanlal and Bastiram took the plea of alibi stating that they were not involved in the alleged incident as they were not present at the place of occurrence. It was further stated by the accused party in the statements recorded under section 313 Cr.P.C. that the complainant party came there with arms and caused injuries to the accused appellants Banwari and Ramnarayan and also murdered deceased accused Maniram and further, the members of the complainant party are also facing trial in the Court for the murder of deceased accused Maniram. It was further stated that so far as the death of deceased Ramnarayan is concerned, he came under the wheel of that Truck which was being driven by the complainant party. In defence, the accused persons examined as many as 12 witnesses and also got exhibited some documents. Before proceeding further, it may be stated here that there is no dispute on the point that charge-sheet Ex.D/37 in FIR No. 95/95 for the murder of deceased-accused Maniram was filed by the police in the Court against members of the complainant party and PW4 Sohanlal, PW3 Om Prakash, PW9 Jagdish, PW10 Rajaram, PW1 Genaram and others were accused in that cross case and in that case, members of the complainant party, who were accused of that case, have been acquitted of the charge for the murder of deceased-accused Maniram. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Bikaner through his impugned judgment and order dated 7.9.2001 acquitted five accused, namely, Rampratap, Ramjus, Hariram, Mangilal and Bhagwana Ram of all the charges framed against them, but convicted and sentenced the four accused appellants, namely, Ramnarayan, Banwari, Mohanlal and Bastiram in the manner as indicated above holding inter-alia:- (i) That the alleged incident in which three members of the complainant party, namely deceased Mohanlal, deceased Rameshwarlal and deceased Ramnarayan and one member of the accused party, namely, deceased accused-Maniram died, took place at the same place. (ii) That the alleged eye witnesses of the occurrence are PW3 Om Prakash, PW4 Sohanlal, PW9 Jagdish and PW10 Rajaram. (iii) That deceased Rameshwarlal and deceased Mohanlal died because of the injuries caused by short gun fire arm. (iv) That PW10 Rajaram also received injuries by short gun fire arm. (v) That from the evidence of the prosecution witnesses, the fact that deceased Ramnarayan also received injuries by short gun fire arm on his thigh is also established. (vi) That so far as the presence of the four eye witnesses, namely, PW3 Om Prakash, PW4 Sohanlal, PW9 Jagdish and PW10 Rajaram at the place of occurrence is concerned, the same is very well established from the parcha bayan Ex.P/17 given by PW4 Sohanlal and not only this, the report of cross case Ex.D/34, which was lodged by the accused party, also reveals presence of the above four eye witnesses at the place of occurrence. Therefore, from every point of view, the above four witnesses can be regarded as eye witnesses of the alleged occurrence. (vii) That so far as the presence of PW10 Rajaram at the place of occurrence is concerned, apart from that, since he has received injuries in the alleged incident, therefore, his presence at the scene cannot in any manner be doubted. (viii) That there is uniformity in the evidence of the prosecution witnesses that the accused appellant Bastiram, Mohanlal, Ramnarayan and Banwari came at the place of occurrence with fire arms. (ix) That the accused appellant Banwari caused fire arm injuries to deceased Mohanlal. (x) That the accused appellant Bastiram caused fire arm injuries to deceased Rameshwarlal. (xi) That the accused appellant Ramnarayan caused firearm injuries to injured PW10 Rajaram. (xii) That the accused appellant Mohanlal caused fire arm injuries to deceased Ramnarayan. (xiii) That the fact that deceased Mohanlal and deceased Rameshwarlal received injuries by short gun fire arm is also established from the statements of Dr. D.K. Purohit (PW18) and Dr. G.L. Jaipal (PW16) and similarly, the fact that injures PW10 Rajaram received gun shot injuries is also established by the evidence of PW16 Dr. G.L. Jaipal. Thus, the fact that deceased Mohanlal, deceased Rameshwarlal and injured Rajaram, PW10 received injuries by short gun fire arm stands established. (xiv) That in the cross-case lodged by the accused party, a parcha bayan Ex.D/13 was given by the accused Rampratap to the police in which, it was stated that the deceased accused Maniram was having a pistol and he died in the same incident, but the injuries, which were found on the body of the deceased accused Maniram were not gun shot injuries and, therefore, the learned Addl. Sessions Judge (Fast Track) drawn the inference that deceased accused Maniram was not having pistol at the time of occurrence. (xv) That the accused appellant Bastiram caused fire arm injuries to deceased Rameshwarlal; the accused appellant Banwari caused fire arm injuries to deceased Mohanlal; the accused appellant Ramnarayan caused fire arm injuries to injured PW10 Rajaram and the accused appellant Mohanlal caused fire arm injuries to deceased Ramnarayan and above facts are established from the medical evidence. (xvi) That on the point whether deceased Ramnarayan received fire arm injuries or not, the learned Addl. Sessions Judge (Fast Track), after discussing that point in his impugned judgment and order at para 70 onwards and after placing reliance on the statements of eye witnesses, came to the conclusion that the accused appellant Mohanlal made gun fire towards deceased Ramnarayan which struck on his thigh and since this fact that accused appellant Mohanlal made gun fire on deceased Ramnarayan is found in the statements of eye witnesses, therefore, the learned Addl. Sessions Judge (Fast Track) came to the conclusion that the statement of eye witnesses would prevail over the medical evidence and thus, if in the post mortem report of the deceased Ramnarayan Ex.P/86, no gun shot injuries were found, it would not affect the testimony of the eye witnesses where they have categorically stated that accused appellant Mohanlal caused fire arm injuries to deceased Ramnarayan. Therefore, he positively came to the conclusion that injuries on the thigh of deceased Ramnarayan were caused by short gun fire arm by the accused appellant Mohanlal. (xvii) That the post mortem report of the deceased Ramnarayan Ex.P/86 reveals that he did not receive any injury by sharp edged weapon. Furthermore, PW18 Dr. D.K. Purohit had admitted in his cross-examination that some injuries mentioned in the post mortem report Ex.P/86 of deceased Ramnarayan might have been caused by running over a Truck on his body and therefore, the suggestion of the accused party that some of the injuries on the body of the deceased Ramnarayan were not caused by the accused Ram Pratap, Ramjus, Hariram, Mangilal and Bhagwana Ram cannot be ruled out and for that reason, he have benefit of doubt to these five accused persons for the injuries of deceased Ramnarayan holding inter-alia that except the so-called injuries of fire arm alleged to have been caused by the accused appellant Mohanlal, rest injuries were not caused by the above five accused persons and the possibility that deceased Ramnarayan might have received some injuries by running over a truck over his body, cannot be ruled out. (xviii) That so far as the dying declaration Ex.D/63 of deceased Rameshwarlal, which was recorded by DW11 Rajendra Kumar Sharma, Magistrate is concerned, the learned Addl. Sessions Judge (Fast Track) came to the conclusion that it was not believable as that dying declaration (Ex.D/63) does not get corroboration from the evidence produced by the prosecution and even from the case of the accused party themselves. Therefore, he disbelieved that dying declaration Ex.D/63 of deceased Rameshwarlal. (xix) That similarly, the learned Addl. Sessions Judge (Fast Track) did not place any reliance on dying declaration Ex.P/18 of deceased Rameshwarlal as it does not bear the fitness certificate of the doctor. (xx) That for the alleged fateful incident, there was a motive. (xxi) That so far as the recovery part is concerned, the learned Addl. Sessions Judge (Fast Track) came to the conclusion that recovery of pistol only from accused appellant Banwari has been established and so far as recovery from other accused appellants is concerned, since they were arrested after so many days, therefore, if no recovery was made from them, it would not affect the case of the prosecution. (xxii) That the plea of alibi taken by the accused appellant Bastiram and Mohanlal was disbelieved by the learned Addl. Sessions Judge (Fast Track), after discussing defence evidence on that point. (xxiii) That on the point that no pallet was found in the body of the deceased Ramnarayan, though eye witnesses have stated that the accused appellant Mohanlal caused fire arm injuries to deceased Ramnarayan on his thigh, in such circumstances, after placing reliance on the decision of the Hon'ble Supreme Court in Suraj Pal vs. State of UP (1), the learned Addl. Sessions Judge (Fast Track) preferred the evidence of the eye witnesses over the medical evidence and held that accused appellant Mohanlal caused fire arm injuries on the thigh of deceased Ramnarayan. (xxiv) That for the gun shot injuries, which were caused to injured PW10 Rajaram by the accused appellant Ramnarayan, the learned Addl. Sessions Judge (Fast Track) came to the conclusion that by causing that fire arm injuries to PW10 Rajaram, a case for the offence under section 307 IPC was found proved irrespective of the fact that these injuries were found simple in nature. (xxv) That the accused appellant Banwari was acquitted of the charge for the offence under section 25 of the Arms Act as sanction for that offence was not obtained. Aggrieved from the said judgment and order dated 7.9.2001 passed by the learned Additional Sessions Judge (Fast Track), Bikaner, the accused appellants have preferred this appeal. In this appeal, the following submissions have been made by the learned counsel for the accused appellants:- (1) That on the same set of evidence when the five other accused persons, namely, Ram Pratap, Ramjus, Hariram, Mangi Lal and Bhagwana Ram have been acquitted by the learned Addl. Sessions Judge (Fast Track), the conviction of the present accused appellants, namely, Ramnarayan, Banwari, Mohanlal and Bastiram for various offences cannot be maintained in the eye of law because the prosecution has not given the true and correct version about the genesis of occurrence. (2) That since the statements of eye witnesses, namely, PW3 Om Prakash, PW4 Sohanlal, PW9 Jagdish and PW10 Rajaram have not been believed in its entirety and their statements have been disbelieved by the learned Addl. Sessions Judge (Fast Track) in respect of five accused persons, namely, Ram Pratap, Ramjus, Hariram, Mangilal and Bhagwana Ram qua deceased Ramnarayan, therefore, in such circumstances, believing of statements of these four eye witnesses for the rest accused persons (accused appellants) was against the well established principle of law. (3) That the findings of the learned Addl. Sessions Judge (Fast Track) that the accused appellant Mohanlal caused fire arm injuries to the deceased Ramnarayan are absolutely erroneous one as that fact is not corroborated by the medical evidence. (4) That since in the same incident, accused appellant Ramnarayan has also received injuries and his injuries have not been explained by the prosecution witnesses and furthermore, in the same incident, deceased accused Maniram from the side of the accused party had also died and the prosecution witnesses have falsely stated that the deceased-accused Maniram was murdered by the accused party, therefore, in these circumstances, genesis of the occurrence has been suppressed by the prosecution and thus, the present four accused appellants are also entitled to acquittal of all the charges framed against them. On the other hand, the learned Public Prosecutor and the learned counsel appearing for the complainant have supported the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track), Bikaner. We have heard the learned counsel for the accused appellants, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case.
(3.) BEFORE proceeding further, we would like to discuss first the medical evidence. Injuries found on the person of injured Rajaram, PW10 (8). PW16 Dr. G.L. Jaipal in his statement recorded in Court has stated that on 20.5.1995 he was Medical Jurist in P.B.M. Hospital, Bikaner and on that day, he medically examined injured Rajaram (PW10) and found the following injuries on his person:- "(1) ?G.S. wound 0.8x0.8cmx?deep on left leg lower 1/4 medially. (2) ?G.S. wound 0.8x0.8cmx?deep on left leg lower 1/3 posteriorly (12cm above the heel). (3) ?G.S. wound 0.6x0.6cmx?deep on left ankle joint heel posteriorly." He has further stated that for ascertaining whether the above injuries were grievous or simple, X-rays of above injuries were got conducted and the X-ray report is Ex.P/38 and further report of the Radiologist Dr. Satish Kachawaha (PW15) is Ex.P/48 and after seeing the X-ray report Ex.P/38 and further report of the Radiologist Ex.P/48, he opined that the above injuries were simple in nature and caused by short gun fire arm. He has proved the injury report Ex.P/49. Pw15 Dr. Satish Kachawaha stated in his statement recorded in Court that on 22.5.1995 he was Radiologist in P.B.M. Hospital, Bikaner and on that day, he got conducted the X-rays of leg of Pw10 Rajaram and rounded metallic shadow was seen. He has proved the X-ray report Ex.P/38. ;