SHIV KUMAR SHARMA, J. - (1.) The three appellants namely Hotam, Veero alias Virendra and Kamal Singh were the accused on the file of learned Special Judge (Dacoity Affected Area) Bharatpur bearing Sessions Case No. 23/1995. They were found guilty, convicted and sentenced as under : 1. Hotam & 2. Veero alias Virendra U/S. 302/34, IPC Each to suffer Imprisonment for life and fine of Rs. 1000/- in default to further suffer 3 months simple imprisonment. U/S. 307, IPC Each to suffer Rigorous Imprisonment for five years and fine Rs. 500/- in default to further suffer simple imprisonment for 1 month. U/S. 3/25 Arms Act Each to suffer Imprisonment for two years and fine of Rs. 200/- in default to further suffer simple imprisonment for 15 days. 3. Kamal Singh : U/S. 302, IPC To suffer Imprisonment for life and fine of Rs. 1000/- in default to further suffer 3 months simple imprisonment. U/S. 307/34, IPC To suffer Rigorous Imprisonment for five years and fine of Rs. 500/- in default to further suffer simple imprisonment for 1 month. U/S. 3/25 Arms Act To suffer Imprisonment for two years and fine of Rs. 200/- in default to further suffer simple imprisonment for 15 days. All sentences were ordered to run concurrently.
(2.) The prosecution case can be compendiously stated thus : Written report (Ex. P-1) was lodged by informant Prabhu Dayal (P.W. 1) with the Police Station Nadbai on January 30, 1995 at 1.00 p.m. to the effect that around 7-7-30 a.m. on the said day when his brothers Man Singh, Moti, Kishan and his nephews Govind, Ratan and Lakhhi were sitting out side of his house encircling fire. Hotam, Kamal Singh, Veero (appellants) Khubi, Leele, Balli, Smt. Durga, Smt. Bimla, Smt. Kamla, Smt. Shiv Dei and three unknown persons came over there. Out of them Hotam, Kamla Singh, Veero and Khubi were armed with firearms. Kamal then opened fire with gun that hit Man Singh, as a result of which Man Singh died, Moti also left for heavenly abode after receiving fire arm injuries caused by Khubi. Hotam and Veero opened fire and caused injuries to Ratan, Govind and Kishan. Police Station Nadbai, on the basis of said report, registered a case under Sections 147, 148, 149, 302, 307 and 323, IPC and investigation commenced. Dead bodies of Man Singh and Moti were subjected to post mortem. Site was inspected. Injured persons were medically examined. The appellants were arrested and fire arms were recovered on the basis of their disclosure statements. On conclusion of investigation charge sheet was filed only against the appellants Hotam, Veero and Kamal Singh but investigation was kept pending under Section 173(8) Cr. P.C. against co-accused Khubi, Leele, Balli, Durga, Kamla and Shiv Dei. In due course the case came up for trial before the learned Special Judge (Dacoity Affected Area) Bharatpur. On June 25, 1995 charges under Sections 302, 302/34, 307 and 307/34, IPC were framed against the appellants who denied the charges and claimed trial. Three independent charge-sheets under Section 3/ 25 Arms Act that were filed against the appellants stood amalgamated and charge under Sec. 3/25 Arms Act was also added on September 28, 1996. The appellants denied the charge. The prosecution in support of its case examined as many as 19 witnesses. Out of seven witnesses that were examined prior to framing of charge under Section 3/25 Arms Act, the appellants only called Shiv Ram Singh (P.W. 7) for re-examination. In their explanation under Section 313, Cr. P.C., the appellants claimed innocence. Appellant Hotam examined himself as defence witness. The learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
(3.) Let us now consider the nature of the evidence led by the prosecution in support of its case. To begin with there is a central evidence consisting of six eye-witnesses namely Prabhu Dayal (P.W. 1), Kishan (P.W. 3), Ratan (P.W. 5), Govind {P.W. 8), Lakhhi Ram (P.W. 9) and Khemi (P.W. 10) who were allegedly present at the place of incident. The evidence is sought to be corroborated by Ved Prakash, SHO Nadbai (P.W. 16) who recovered fire-arms at the instance of the appellants. Ocular testimony has further been supported by the evidence of Dr. B.L. Meena (P.W. 12) who performed autopsy on the dead bodies of Moti and Man Singh. As per post mortem report (Ex. P-l7) Moti sustained following injuries : 1. Multiple punctured lacerated wounds more than sixty of size varying from 2 x 2 cm x bone deep to 1/4 x 1/4 cm x muscle deep to soft tissue deep scattered at unequal distance going 1" to jaw overlapping to each other in an area & 9" x 9" in vertigo transverse axis extending from Rt. Iliac region to upper cm Rt. thigh covering & anterior medial & lateral aspect diverting Lt. to Rt. & anterior posteriorly few hard mettalic round mass are palpable on lateral & post aspect and Rt. thigh upper there is collar of abrasion on margins at places but no blackening & no tattooing seen oozing of dark blood and clotted blood present, from soft tissue 15 metallic pieces recovered. These all are suggestive of wounds of entry antr. caused by fire arm. On opening the thigh & Rt. Inguinal region 12 mettalic pieces found lodged in deep muscle mass and fracture bony pieces of Rt. femur bone. Shaft upper part at lower & hip joint haemotoma about 800 ml. in thigh hip joint, there is lacerating of Rt. femoral blood vessels at upper part. The cause of death was acute haemorrhagic shock brought out as the result of ante-mortem injuries to Rt. femoral & Rt. illiac blood vessels due to fire arm. The injuries sustained by Man Singh incorporated in the post-mortem report (Ex. P-18) were as under : 1. Multiple punctured lacerated wounds of size 1/4 x 1/4 cm x soft tissue to chest, abdomen cavity deep, scattered at unequal distance about 55 in number, collar of abrasion but no tattooing and no blackening on margins. Covering 23" x 16" area vertigo transverse axis as shown in diagram involving forehead Lt. side, nose, face, Rt. cheek neck fronto lateral aspect Rt. shoulder joint. Rt. arm Rt. forearm anterior medial & dorsally respectively, chest epigastric area, Rt. hypochondrum Lt. arm at unequal distance. Few hard pallets like mass palpable are 3 in No. preserved and sealed in soft tissue. The direction is from Rt. to left and anterior posteriorally. Deceased wearing bluejacket, blue kurta, white baniyan white dhottee and nekar are having corresponding tear marks and blood stains have been preserved sealed and handed over to concerned police. All the injuries are ante mortem in nature. These are suggestive of wounds of entry caused by fire arm. The cause of death was acute internal haemorrhogic shock brought out as the result of ante-mortem injuries to Rt. lung & liver due to fire arm. Dr. B. L. Meena also examined the injuries received by Ratan (P.W. 5), Kishan (P.W. 3) and Govind (P.W. 8) and injury reports Ex. P-19, Ex. P-21 and Ex. P-9 were drawn. Radiologist Dr. D. D. Gupta (P.W. 18) got examined the injuries sustained by Ratan Kishan and Govind, X-rayed and submitted X-ray report Ex. P-20, Ex. P-22 and Ex. P-23.;