SHARMA, J. - (1.) THREE appellants alongwith one Kishan Lal were the accused on the file of learned Special Judge & Additional Sessions Judge, Alwar in Sessions Case No. 15/94. Vide judgment dated November 5, 1997, the learned trial judge found the appellants Kallu Ram, Mahendra and Chhagan Lal guilty and convicted and sentenced them as under : KALLU RAM : U/s. 302 IPc Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 2 months R. I. U/s. 324/34 IPc One year R. I. with fine of Rs. 200/- and in default of payment of fine to further undergo 15 days RI. CHHAGAN LAL & MAHENDRA : U/s. 302/34 IPc Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 2 months R. I. U/s. 324 IPc One year R. I. with fine of Rs. 200/- and in default of payment of fine to further undergo 15 days RI. All the sentences were ordered to run concurrently. Accused Kishan Lal was however acquitted. Assailing the said judgment of conviction, the appellants Kallu Ram, Chhagan Lal and Mahendra have preferred the instant criminal appeal.
(2.) THE prosecution case as projected during trial was that on June 6, 1993 at about 10. 30-11. 00 a. m. informant Hans Raj alongwith his brother Shyam Sunder (now deceased) and Deepak son of Shyam Sunder visited the shop of one Shyam Lal Bajaj in village Alawada. At the relevant time the accused appellants along with their father Kishan Lal opened assault with knives in their hands. THE accused persons inflicted knife blows on the person of Shyam Sunder resulting in his death. When the accused persons were inflicting injuries to Shyam Sunder, informant Hansraj with Deepak, endeavoring to save Shyam Sunder intervened in the scuffle. By reason of the intervention, informant as well as Deepak were also assaulted at the hands of accused persons. It was further stated that earlier on the same day the deceased had visited the house of accused persons in order to purchase meat, where he had indulged in a verbal dual with the accused persons. Informant Hansraj submitted a report at Police Station Ramgarh on the same day. On the basis of the aforesaid report Crime No. 125/93 was registered at Police Station Ramgarh against the accused appellants and one Kishan Lal. Statements of the witnesses under Section 161 Cr. P. C. were recorded. Inquest report was drawn. Autopsy on the dead body was conducted. Site plan was prepared. THE accused were arrested. Knives used in the occurrence was recovered and after completion of the investigation the challan was filed. In due course the case came up for trial before the learned Special Judge and Additional Sessions Judge, Alwar. Charges under sections 302, in the alternative 302/34 IPC, 324 and 324/24 IPC were framed and read over the same to the accused. THE accused denied the charges and claimed to be tried. THE prosecution examined as many as 22 witnesses and exhibited 30 documents. In defence four witnesses were examined and seven documents were exhibited. THE accused in their explanation under Section 313 Cr. P. C. denied the allegations levelled against them. THE learned trial judge after hearing the arguments convicted and sentenced the accused as mentioned above and acquitted accused Kishan Lal. The prosecution in support of its case examined as many as 8 eye witnesses. Hansraj PW. 1 and Deepak Kumar PW. 2, are the injured eye witnesses. Jani Ram PW. 3, has not been named in the FIR. Shyam Lal PW. 4 is the shop keeper. Chetan Kumar PW. 5, Om Prakash PW. 6, Bhagwat Prasad PW. 7 and Mohan Lal PW. 8 did not to the prosecution story. Chandra Bhan PW. 9 had seen the accused running away from the spot. Prem Singh PW. 20 is the investigation officer. Dr. Mahesh Jain PW. 21 conducted autopsy on the dead-body of deceased Shyam Sunder and as per the post mortem report Ex. P. 3 following antemortem injuries were sustained by him : 1. Lacerated wound 1 cm. x 1/4 cm. skin deep on left side just lateral to eye. 2 Abrasion 2 in nos. 1. 5 cm. x 1cm. (Lt.) frontol head just above eye. 3 Multiple Linear abrasions on (Lt.) side of Neck size ranging from 3 cm. to 5 cm. 4. Abrasion 3 in nos. on (Lt.) side of upper chest size 4 to 8 cm. in length. 5. Abrasion 2 cm. x 1 cm. on (Lt.) elbow. Post aspect. 6.Incised wound 1 cm. x 1/2 cm. x 1/2 cm. on (Rt.) F. arm ant. aspect middle 1/3 part. 7. Abrasion 1 cm. x 1/2 cm. on (Rt) side of lower side of lower chest of ant. auxiliary line. 8. Incised wound 1 cm. x 1/2 cm. 1/2 cm. on (Rt.) side of chest 5th intercostal space of ant auxiliary line level. 9. Stab wound 3 cm. x 1/2 cm. (Entering into (Lt.) thoresic cavity ). At 6th intercostal space on (Lt.) side of chest, just lateral to sternum. This stab wound is entering into left thoresic cavity and caused injury to pericardium and left ventricle (injury to pericardium and Heart ). Cause of death was shock and haemorrhage caused due to injury No. 9 which was stab wound caused on the heart. Dr. Mahesh Jain also examined injuries received by Hansraj PW. 1 and Deepak Kumar PW. 2 As per injury report Ex. P. 1, Hansraj PW. 1 received following injuries : 1. Lacerated wound 4 cm. x 1/2 cm. muscle deep on (Rt.) occipito perietal region. 2. Incised wound 2 cm. x 1/2 cm. muscle deep on Rt. Lumber region of back. 3. Incised wound 1/2 cm. x 1/4 cm. muscle deep on (Lt.) midthorecic region of back near mid line. 4. Abrasion linear 3 cm. long on Lt. side of Lumber region of back. 5. Abrasion 1/2 cm. x 1/2 cm. on Lt. side of abdomen hypocondrim part out auxiliary line. According to Ex. P. 2 Deepak Kumar PW. 2 received following three injuries: 1. Linear abrasion 2 cm. long on Lt. side of Neck. 2. Linear Abrasion 5 cm. long on Lt. side of Neck below Inju. No. 1. 3. Bruise 4 cm. x 3. 5 cm. on Rt. side of back mid thorecic region with abrasion marks over bruise.
(3.) COMING to the testimony of Hansraj PW. 1, it may be noticed that he is the real brother of the deceased. In his deposition Hansraj supported the version narrated in the FIR and stated that he along with Shyam Sunder and Deepak had gone to the shop of Shyam Lal Bajaj for purchasing clothes. As soon as they reached the shop Master Ram Kishan exhorted his sons Kallu, Mahendra and Chhagan and asked them to kill informant Shyam Sunder and Deepak. Thereafter Master Ram Kishan and his three sons who were armed with knives and chhuras attacked them. Master Ram Kishan inflicted knife injuries on the right hand of Shyam Sunder. Kallu inflicted knife blows just below the ribs of Shyam Sunder, as a result of which Shyam Sunder fell down. Mahendra and Chhagan also inflicted knife blows on the person of Shyam Sunder. When Hansraj informant intervened Master Ram Kishan gave knife blows on his head. Mahendra and Chhagan inflicted knife blows on his back. When Deepak made attempt to caught hold of Kallu, Kallu took bite on his back and flayed away. Hansraj further stated that in the morning of the said day there were altercations between them and the accused. Shyam Sunder was taken to the Hospital where postmortem on his dead body was conducted. In the cross examination Hansraj stated that report Ex. P. 15 was got written by him from Arji Navis Budhalal. Some help was also given by his relative advocate Jagdish Satija. However in his cross examination Hans Raj stated that he got the report Ex. P. 15 written by Budha lal deed writer and some help was provided by his relative Jagdish Satija Advocate. When he (Hans Raj) became conscious, he found Jagdish Satija Advocate standing outside the police station. Hans Raj further deposed that it was not stated in the report Ex. P. 15 that Mahendra and Chhagan inflicted knife blows on the person of Shyam Sunder. In his police statement Ex. 0. 4 also he did not narrate this fact. It was not known to him even after the incident that as to on which part of the body of Shyam Sunder, Chhagan and Mahendra inflicted injuries. Deepak Kumar PW. 2 in his deposition stated that on being exhorted by Master Ram Kishan Kallu, Mahendra and Chhagan opened chhuras and attacked his father Shyam Sunder. Master Kishan Lal inflicted knife blow on the right hand of Shyam Sunder. Thereafter Kallu gave knife blow just below the ribs of Shyam Sunder. Thereafter Chhagan and Mahendra indiscriminately inflicted knife blows on his person. At the same time Hansraj appeared and made attempt to intervene then Master Kishan Lal gave knife blow on the head of Hansraj and Chhagan inflicted blows on his back. Then he made attempt to caught hold of Kallu, but Kallu took a bite on his back and fled away. In the cross examination Deepak Kumar deposed that he also put his signatures on the report written by the deed writer and advocate Satija also came to the police station. He further stated that Chhagan and Mahendra each inflicted two to three knife blows on the stomach of his father. Although he stated before the police this fact but police did not record it in his police statement. Jani Ram PW. 3 deposed that on June 6, 1993 around 10. 30 -11 a. m. Shyam Sunder and Deepak came to the shop of Shyam Lal Bajaj. After some time his brother Hansraj also came over there. Kishan Lal, Kallu, Chhagan and Mahendra inflicted knife blows on the person of Shyam Sunder. Kallu gave knife blow on the left ribs of Shyam Sunder, as a result of which he fell down. When Deepak and Hansraj intervened, one of the accused inflicted knife blow on the back of Hansraj and Kallu took a bite on the back of Deepak. ;