BANSAL, J. - (1.) AS many as six accused were put on trial before the learned Special Judge (Communal riots cases) and Additional Sessions Judge, Tonk in Sessions Case No. 36/97. The learned trial Court acquitted the accused Kajod of all the charges and convicted and sentenced the accused-appellants Raja Ram @ Raju, Kistura, Prabhu Lal, Ganesh and Ram Avtar vide its judgment and order dated July 25, 1998 as under :- (1) Raja Ram @ Raju u/sec. 302/149 IPC Life imprisonment with a fine of Rs. 1,000/-, and in default of payment of fine to further undergo two months' rigorous imprisonment. u/sec. 324/149 IPC One year's rigorous imprisonment. u/sec. 323 IPc Six months' rigorous imprisonment. u/sec. 148 IPc Six months' rigorous imprisonment. (2) Ganesh u/sec. 302/149 IPc Life imprisonment with a fine of Rs. 1,000/-, and in default of payment of fine to further undergo two months' rigorous imprisonment. u/sec. 324 IPc One year's rigorous imprisonment u/sec. 323 IPc Six months' rigorous imprisonment u/sec. 148 IPc Six months' rigorous imprisonment (3) Prabhu Lal Ram Avtar & Kistura each u/sec. 302/149 IPc IPC Life imprisonment with a fine of Rs. 1,000/-, and in default of payment of fine to further undergo two months' rigorous imprisonment. u/sec. 324/149 IPc One year's rigorous imprisonment. u/sec. 323 IPc Six months' rigorous imprisonment. u/sec. 147 IPC Four months' rigorous imprisonment.
(2.) ALL the substantive sentences were ordered to run concurrently. The said judgment has been assailed by the appellants in the instant appeal. Briefly stated the prosecution case is that PW-5 Ishwar Singh s/o Shri Onkar Patel, R/o Deoli, P. S. Barauni (District Tonk) submitted a written report Ex. P3 to SHO, P. S. Barauni on June 14, 1996 at 8:30 P. M. in Hospital. Tonk with the averments that today at about 4:00 P. M. he, Badri and Prabhu were coming back to their village from Niwai town. When they reached near village Chironj, Raju @ Rajaram, Ganesh, Kistura, Ramavtar, Prabhu, Kajod and younger brother of Ramavtar all by caste Keer came from the side of a hotel. They were armed with Lathi, Gandasa and Axe. They stopped their motor-cycle and started beating them. Raju gave a Gandasa blow on left side of the forehead of Badri, Kistura inflicted an injury on right side of the forehead of Prabhu and Ganesh gave a blow with axe on his forehead. The remaining accused gave lathi blows to all of them. They were saved by Kajod and some other persons. They took them to hospital and got admitted. On the basis of this report Ex. P. 3, the SHO, PS Barauni registered a case under Section 149, 341, 323 and 307 IPC and investigation commenced. Formal FIR is Ex. P21. Injured Badri died in the hospital on the night on June 14, 1996 and thereafter Section 302 IPC was added by the police. The investigating Officer reached on the spot on June 15, 1996 and prepared Site Plan Ex. P. 5. Blood smeared soil and control soil were seized and sealed vide Seizure Memos' Ex. P6 and Ex. P7. Blood stained two stones were also seized vide Seizure Memo Ex. P. 8. Injuried Ishwar Singh and Prabhu were medically examined on June 14, 1996. Their injury reports are Ex. P. 9 and Ex. P. 23 respectively. Autopsy on the dead body of Badri was conducted by PW. 21 Dr. Y. N. Verma, Medical Jurist, SMS Hospital, Jaipur who prepared post-mortem report Ex. P. 32. On June 15, 1996. Blood stained clothes of Prabhu. Ishwar Singh and deceased Badri were seized and sealed vide Seizure Memos' Ex. P. 2, Ex. P4 and Ex. P10 respectively. Statements of the witnesses were recorded under Section 161 Cr. P. C. Injured Prabhu was X-rayed and it was found that his fibula bone was fractured. X-ray report is Ex. P21. All the six accused were arrested and on their disclosure statements recorded under Section 27 of the Evidence Act and at their instance lathies were recovered. On completion of the investigation the chargesheet was laid in the Court of Additional Chief Judicial Magistrate. Niwai who committed the case to the Court of learned Sessions Judge, Tonk. On transfer the file was received in the Court of learned Additional Sessions Judge, Tonk. Learned Additional Sessions Judge framed charges under Sections 302 or 302/149, 147, 148, 324/149, 325/149 and 323/149 IPC against the accused-appellant Rajaram @ Raju, under Sections 302/149, 147, 148, 324 or 324/149, 325/149 and 323/149 IPC against accused-appellant Ganesh, under Sections 302/149, 147, 148, 324/149, 325/149 and 323/149 IPC against the accused Kajod and under Sections 302/149, 147, 148, 324/149, 325/149 and 323/149 IPC against the accused-appellant Kistura, Prabhu Lal and Ramavtar. All the accused denied the charges and claimed trial. The prosecution examined as many as 21 witnesses in support of its case. The accused-appellant Rajaram @ Raju stated in his statement recorded under Section 313 Cr. P. C. that on the date of alleged incident he was standing in front of his hut. Badri, Prabhu and Ishwar Singh came on motor-cycle, seeing him on the road they stopped their motor-cycle. Thereafter Badri abused him and said that why did he lodge a report against him at the police station. He replied that he (Badri) had administered poison in Limca to him and made attempt to kill him and, therefore, he lodged a report to police. Thereafter Badri, Prabhu and Inhwar abused him. Beating took place between him and Badri. When Badri fell down he ran away. When Ishwar Singh and Prabhu were running to catch him, other accused persons came from their huts. Prahlad, Suraj and Kajod were not present there. This incident took place near hotels. Other accused persons claimed innocence and stated in their statements recorded under Section 313 Cr. P. C. that when they asked Ishwar and Prabhu as to why they are running after Rajaram, Prabhu and Ishwar Singh started to quarrel with them also. No witness was examined in defence.
(3.) THE learned trial Judge, on hearing the final submissions, acquitted the accused Kajod of all the charges and convicted and sentenced the remaining accused-appellants Rajaram @ Raju, Kistura, Prabhu Lal, Ganesh and Ramavatar as indicated here-in- above. We have heard learned counsel for the appellants, learned Amicus Curiae for the appellants, and learned Public Prosecutor for the State. With their assistance, we have carefully scanned and scrutinized the material on record. Pw. 21 Dr. Y. N. Verma stated that on June 15, 1996 he was posted as Medical Jurist in SMS Hospital, Jaipur. On that day he conducted post-mortem examination on the dead body of Badrilal S/o Shokaran, aged 40 years, by caste-Jat, R/o Chironj at 10:40 A. M. and found the following injuries:- External Injuries (1) Abrasion 4x1cm. and 3x1cm. over left leg upper 1/3rd with gap 1cm. (2) Abrasion 1x1cm. over back of right elbow and 1/2 x 1/2 cm. medical surface of right elbow. (3) Abrasion 3x2cm. back of left elbow. (4) Bruise with abrasion 4x3cm. posterior laterally left forearm, middle 1/3rd. (5) Abrasion 2x1cm. over right side of chin. (6) Abrasion 2x2cm. over right maxillary procum. (7) Lacerated wound 1-1/2cm. with abrasion around it and diffuse swelling over left temporal occipital region, bone deep. Clotted blood present. (8) Lacerated wound 4cm. x 3/4cm. x bone-deep over right side mid parietal region placed obliquely longitudinally. (9) Lacerated wound 3-1/2cm. x 1/2cm. x scalp tissue deep over 2cm. behind the injury No. 8 over parieto occipital region with diffuse swelling. (10) Lacerated wound 3cm. x 1/2cm. x scalp tissue deep over left side. 3cm. away from mid line and left parietal region with diffuse swelling, irregular margin and clotted blood. (11) Lacerated wound of size 2-1/2cm. x 1/2cm. x muscle deep over palmar surface of left thumb placed obliquely with bruised. Irregular margin and on dissection fracture of distal phalanx and extravasation of blood in surrounded region. Internal Injuries On dissection of cranium-There was sub-scalp haematoma over left temporal, both parietal region, both occipital region and dark red with tissue staining was present. There was fracture of size 15cm. x 0cm. extending from left temporal to left occipital bone and extravasation of blood was surrounding region and there was extra dural haematoma over left temporal and occipital region about 60 CC. clotted blood and dark red in colour. Further examination shows there was sub dural haematoma on right side frontal, parietal, temporal and occipital and left temporal, parietal, occipital region. The brain had multiple contusions of size 6 x 3cm. to 2x1cm. over left temporal, left occipital, right parietal and right occipital and laceration of size 3x2x1cm. to 1x1x1cm. over outer part of right frontal and under surface of frontal lobe respectively and dark red clotted blood and tissue staining was present. Antemortem in nature. ;