S. K. SHARMA, J. - (1.) INSTANT appeal impugns the judgment dated November 11, 1999 of the learned Additional Sessions Judge Jhunjhunu whereby the there appellants Bajrang, Ram Kumar and Sri Ram were convicted and sentenced thus:- U/s. 302/149 IPc Each to suffer Imprisonment for life and fine of Rs. 500/- in default to further suffer six months Rigorous Imprisonment. U/s. 148 IPc Each to suffer Rigorous Imprisonment for two years and fine of Rs. 200/ -. in default to further suffer two Months Rigorous Imprisonment. U/s. 325/149 IPc Each to suffer Rigorous Imprisonment for there years and fine of Rs. 300/- in default to further suffer there Months Rigorous Imprisonment. U/s. 324/149 IPc Each to suffer Rigorous Imprisonment for two years and fine of Rs. 200/.- in default to further suffer tow months Rigorous Imprisonment. U/s. 323 IPc Each to suffer Rigorous Imprisonment for six months. All sentences were ordered to run concurrently.
(2.) AS per the prosecution version an information was lodged at Police Station Pilani by Lichhman Ram (PW. 3) on July 12, 1989 that Bajrang, Ram Kumar, Sri Ram, Jalu, Mala Ram and Banwari and assaulted Phool Chand, Sat Pal, Dharam Pal and Ved Pal with Gandasa, Barchhi, Lathi and axe, as a result of which Phool Chand died and Sat Pal, Dharam Pal and Ved Pal sustained injuries. On the basis of such information the case under Sections 302, 147, 148, 149, 323 and 427 IPC was registered and investigation was undertaken. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Jhunjhunu Charge under Sections 148, 302 in the alternative 302/149, 427, 325/149, 324/149, 323 and 323/149 IPC was framed against the accused who denied the charge and claimed trial. Accused Jalu, Mala Ram and Banwari died during the pendency of trial and proceedings against them got dropped. AS many as 12 witnesses were examined by the prosecution in support of its case. In the explanation under Section 313 Cr. P. C. the appellants claimed innocence. Appellant Sri Ram examined himself and Chunni Lal in defence. On hearing final submission the learned trial Judge convicted and sentenced the appellants as indicated herein above. In support of the appeal, learned counsel for the appellants submitted that this is a case where the conviction is not sustainable as the injuries were inflicted by the appellant while exercising their right of private defence. Deceased Phool Chand, Ved Pal (DW. 2), Dharam Pal (PW. 4) and Sat Pal (PW. 5) were the aggressors and wanted to oust the appellants from the land belonging to the appellants. The injuries received by the appellants Ram Kumar and Sri Ram in the course of the incident were not explained by the prosecution. Sher Singh who would have been the best witness, was not examined by the prosecution. It was also contended y the learned counsel that Jalu Ram submitted cross FIR (Ex. D-8) along with the gun belonging to Phool Chand (deceased) and burden stood discharged by showing preponderance of probabilities in favour of plea of self defence on the basis of the material on record. It was also urged that witness Ved Pal (PW. 2) was highly unreliable witness. His statement was recorded after 10 days of the incident and he did not receive any injury caused by sharp edged weapon. Testimony of Dharampal (PW. 4) and Satpal (PW. 5) had not been considered property. Even from the evidence of Raghuveer (PW. 12) the filed where the incident took place was is the possession of the appellants. The learned trial court committed illegality in ignoring the statements of defence witnesses. Per contra, learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and canvassed the there is no reason to doubt the presence of injured eye witnesses. The incident occurred on the way while the deceased and injured persons were returning back in the car. The gun allegedly belonged to Phool Chand was never used and from the record it was established that the appellants and common object to kill Phool Chand and caused injuries to Ved Pal, Dharam Pal and Satpal. There is nothing no record to show preponderance of probabilities in favour of plea of self defence raised by the appellants. Before dealing with the rival contention we would like to indicate the nature of evidence led by the prosecution evidence. To being with there is a central evidence consisting of three eye witness viz. Ved Pal (PW. 2), Dharam Pal (PW. 4) and Satpal (PW. 5 ). This evidence is sought to be corroborated by the testimony of Raghuveer Singh SHO (PW. 12) and Dr. D. D. Chanana (PW. 7) who performed autopsy on the dead body of Phool Chand and examined injuries sustained by Ved Pal, Dharampal and Satpal. The learned trial Judge based the conviction of the appellants principally on the evidence of Ved Pal (PW. 2), Dharampal (PW 4) and Satpal (PW. 5 ). The presence of these witnesses on the scene of occurrence has not been doubted and it impelled the learned Judge to hold these witnesses as eye witnesses of the occurrence.
(3.) LET us now examine the nature of injuries sustained by the deceased and other injured persons. According to post mortem report (Ex. P-20) Phool Chand received as 13 external injuries thus:- 1. Lacerated wound 4" x 1/4" x up bone of the skull at the Rt. fronto parietal region of the skull-blood clotts oblique. 2. Bruise 5" x 2" - diffused swelling on the left arm- fracture of the humerus bone-collection of the blood at left axillary region. 3. L. W. 4" x 3" x - fracture of the bone of the Rt. Leg through the wound fractured ends of both bones are visible & coming out - blood clotts at the upper 1/3rd - diffused swelling at the Rt. Caff region due to collection of blood. 4. Bruise 5" x 1" on the left scapuler region oblique. 5. Bruise 6" x 1" on the Rt. scapular region oblique. 6. Diffused swelling at the Rt. scapular region-blood collection in the swelling. 7. Bruise 5" x 1" at the middle 1/3 of the back oblique. 8. Bruise 4" x 1" at the lumber region outer side oblique. 9. Diffused swelling at the Rt. Leg lower 1/3 just above the Ankle Joint outer side of leg bones. 10. Bruise 4" x 2" Rt. fore arm lower 1/3 outer side. 11. Bruise 3" x 1" on the left hand at the region. 12. Bruise 1" x 1" on the left ahdn dorsal side outer asper. 13. Diffused swelling of the left forearm lower 1/3 outer side # of both bones of the limbs. " Fractures of Right Parietal bone, Left humerus upper 1/3, Right tibia and Fibula upper 1/3, Right tibia and Fibula lower 1/3 and left radius and ulna lower 1/3 were found, cause of death was haemorrhage (Ext.) and cumulative effect of multiple injuries to the vital organ like brain. Vide injury report (Ex. P-15) and X-ray report (Ex. P-16) Ved pal received following injuries:- " 1. Lacerated Wound 2" x 1/4" x scalp deep on the left fronto perietal region of the skull oblique-blood clotts. 2. L. W. 2, 1/4" x scalp deep on the left perietal region of the skull blood clotts oblique. 3. Abrasion 1/4" x 1/8" on the outer side of the left eye brow. 4. Abrasion 3/4" x 1/8" on the left cheek oblique. 5. L. W. 3/4" x 1/8" on the left side of the nose near the alee of nobe. 6. Abrasion 1/8" x 1/8" on the left side of the cheek. 7. Diffused tender swelling on the both eyes bluish discoloration & both the eyes having sub conjunctiva haemorrhage. 8. Bruise 4" x 2, 1/2" on the left deltoid region. 9. Bruise 5" x 2" on the left scapular region oblique. 10. Bruise 5" x 1" on the left scapuler region 2" medial to the injury No. 9th. 11. Bruise 6" x 1" on the left side of the back middle 1/3 oblique. 12. Bruise 6" x 1" on the left side of the back middle 1/3-2" away from the injury No. 11. 13. Bruise 12" x 1" on the left side of the back middle 1/3 oblique & 1" away from the injury No. 12. 14. Bruise 5" x 1" on the left side of back lower 1/3 oblique. 15. Bruise 3" x 2" on the left arm middle 1/3 outer side. 16. Bruise 5" x 2" on the left glueteal region oblique. 17. Bruise 2" x 1" on the Rt. hypothemar region of the hand. 18. Bruise 4" x 2" on the Rt. forearm upper 1/3- diffused tender swelling. 19. Bruise 2" x 1" on the Rt. deltoid region. 20. Bruise 3" x 2" on the Rt. leg lower 1/3 ant, aspect. 21. Bruise 4" x 1" on the Rt. thing lower 1/3 outer aspect. 22. Abrasion 1/2" x 1/2" on the forehead Rt. side. 23. Bruise 2" x 1" on the Rt. side of the back middle 1/3. " According to injury report (Ex. P-17) and X-ray report (Ex. P- 18) Satpal sustained following injuries:- " 1. Lacerated Would 2" x 1/4" x scalp deep on the left fronto perietal region of the skull - blood clotts oblique. 2. Incised would 1/2" x 1/8" x sup. skin deep formation tail oblique downward, the edges, are clean cut on the left side of the chest outer aspect-blood clotts. 3. Bruise 3" x 1" on the left gluteal region outer side. 4. Pt. Complains of pain Epigestric region but no external injury vesibile. " ;