VYAS, J. - (1.) THESE appeals are directed against the judgment dated July 22, 2002, passed by the learned Additional Sessions Judge (Fast Track), Alwar, whereby she convicted and sentenced each of the accused, namely, Hamida and Khushila @ Kanna under Section 302, I. P. C. , to life imprisonment with a fine of Rs. 5,000/- each, in default of payment of fine to further undergo one year's rigorous imprisonment; accused Jaleb Khan, Islam @ Banda, Ibri @ Ibrahim, Haroon, Chhutta @ Gutta, Subhan Khan and Himmat under Section 302/149 IPC, to life imprisonment with a fine of Rs. 2000/- each, in default of payment of fine to further undergo six months' rigorous imprisonment; accused Jaleb Khan, Hamida, Ibri @ Ibrahim, Islam @ banda, Haroon Khushila @ Kanna Chhutta @ Gutta, Subhan Khan and Himmat under Section 148, IPC to one and a half year rigorous imprisonment; accused Jaleb Khan, Hamida, Ibri @ Ibrahim, Islam @ Banda, Haroon Khushila @ Kanna, Chhutta @ Gutta, Subhan Khan and Himmat under Section 325/149 IPC to 2 years' rigorous imprisonment with a fine of Rs. 1,000/- each in default of payment of fine to further under six months' rigorous imprisonment; accused Jaleb Khan, Hamida, Ibri @ Ibrahim, Islam @ Banda, Haroon, Khushila @ Kanna, Chhutta @ Gutta, Subhan Khan and Himmat under Section 323 IPC to six months' rigorous imprisonment; and accused Hamida and Khushila 2 Kanna under Section 3/25 of the Arms Act to three years' rigorous imprisonment and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo one year's rigorous imprisonment. all the sentences were directed to run concurrently.
(2.) BRIEFLY stated, the prosecution case is that on March 2, 1997, one Sussan s/o Chhote Khan lodged a written report (Ex. P- 16) in the Police Station, Ramgarh, District-Alwar, stating, inter alia, therein that on the day of the occurrence, at about 10. 30 a. m. , Mishri S/o Chhote Khan, Ali Khan, Ali Mohammed S/o. Sussan, Ilias S/o. Mishri, Kalli S/o. Gulla, Chhutta S/o. Salem, Mohammed S/o. Sussan, these all the people, while returning from the well of Chhuttan S/o. Salem, after filing up `farma' in the well, went to well No. 157 to pull out electric motor from the said well, which was lying there out of order for the last two years and is in the knowledge of the SHO himself, where Hamida, Chhutta S/o. Mohar Singh, Salamdeen, Khushila (Kanna), Jaleba, Banda S/o. Deenu, Ubri, Haru S/o. Suleman and Himmat, Shubhan S/o. Sendu, armed with guns, were sitting there by hiding themselves in the well. As soon as these people (the complainant party) reached there to pull out the electric motor, they (the accused party) started firing on them. Hamida, Chhutta S/o. Mohar Singh, Khushila, Jaleba S/o. Dinu fired on Mishri S/o. Chhote Khan and killed him on the spot. As soon as the firing started, the people ran helter-skelter. Then, Haru and Ubri S/o. Suleman fell down. Chhutta S/o. Suleman with lathies and gun. It was further stated in the written report that Subhan and Himmat S/o. Sedu fired at Kalli S/o. Gulla and fractured his legs with lathies and Farsis. Salamdeen S/o. Deenu fired at Ali Khan and, thereafter, gave a blow on his head with the butt of the gun. It was also stated in the written report that Chhutta S/o. Mohar Singh gave a Tanchia blow on the hand of Ali Mohammed S/o. Sussan and injured him. Banda S/o. Deennu fired a gun at Mohammed S/o. Sussan. Chhutta S/o. Mohar Singh gave a Tanchia blow on Ilias S/o. Mishri, which resulted into fracture of his hand. The said incident occurred at around 10. 30 a. m. Or 11. 00 a. m. , which was witnessed by Pappu S/o. Nathu, Kuhla S/o. Gulla, Umardeen S/o. Sussan and they raised the hue and cry and tried to collect the villagers. On hearing their hue and cry, Sussan, Kalu and Rustam etc. came to the scene of the occurrence. Kallu and Rustam went to Ghaneta to inform the Police Station, Ramgarh telephonically. Hence, the SHO was requested to take necessary action in the matter. Lastly, the complainant stated that these people have indulged in the scuffle and committed the murder. In this plan, Aashu S/o. Bhijju and Ruddhar S/o. Sedu are included. These both the persons happen to visit them in the night and used to say that Mishri had to be done away. On the basis of the aforesaid report, the Police registered FIR No. 38/97 under Sections 147, 148, 149, 323, 325, 307 and 302, IPC, and investigation commenced. During the course of investigation, the Investigating Officer got conducted the post-mortem of the dead body of the deceased Mishri from the Doctor and prepared site plan vide Ex. P- 1, seized broken pieces of the butts of the gun vide Ex. P-3, seized Control soil and blood smeared soil vide Ex. P-4, live cartridge of a 12 bore gun and 12 bore cartridge cashes vide Ex. P-5. He also seized the blood stained clothes of the deceased Mishri Khan vide Ex. P. 8, prepared inquest report of the dead body of Mishri Khan vide Ex. P-9, got the injured X-rayed and collected X-ray reports vide Exs. P12, P-13, P-14, P-15 & P-21 and injury reports vide Exs. P-18 and P-19 of Ali Khan, P-20 of Chuttan, P-22 of Ilyas, P-24 of Umar Mohd. And P-25 of Kalli. He sent the aforesaid seized and sealed articles to the Forensic Science Laboratory (FSL), Jaipur, for examination vide Exs. P-27 and P-28 respectively. He arrested the accused Hamida vide Ex. P-30, Ibrahim vide Ex. P-31, Jaleb Khan vide Ex. P-32, Islam @ Badda vide Ex. P-33, Harun vide Ex. P-34, and Khushila @ Kanna vide Ex. P-35. In consequence of the disclosure statements made by the accused under Section 27 of the Evidence Act, he recovered the alleged weapon-I single barrel gun, one 12 bore single barrel gun and pieces of butts of the broken gun. The reports of the SFL examination are Ex. P-41 and P-42 respectively. The IO also recorded the statements of the witnesses (Ex. D-1 to Ex. D-11) during the course of the investigation. On completion of investigation, the Police filed challan against the accused appellants under Sections 147, 148, 149, 323, 325, 307 and 302, IPC, in the Court of the learned Additional Chief Judicial Magistrate No. 3. Alwar, who, in turn, committed the case for trial to the Court of the learned Sessions Judge, for trial. The learned Sessions Judge transferred the case to the Court of the Additional Sessions Judge No. 2, Alwar, for trial. The learned Additional Sessions Judge No. 2, Alwar framed charges against the accused-appellants Jaleb Khan, Islam @ Banda, Ibri @ Ibrahim, Haroon and Salamuddin under Sections 147, 148, 302/149, 307/149, 325/149, 323, IPC and Sections 3/25 of the Arms Act; against accused Hamida under Sections 147, 148, 302, 307/149, 325/149, 323, IPC and Section 3/25 of the Arms. The accused denied the charges and claimed trial.
(3.) THE learned Additional Sessions Judge No. 2, Alwar examined four witnesses. THEreafter, the case was transferred to the Court of the Special Judge, SC/st (Prevention of Atrocities Cases), Alwar. THE Police also filed a supplementary charge-sheet against the accused-appellants Chhutta @ Gutta, Subhan Khan and Himmat. Subsequently, the case was transferred to the Court of the Additional Sessions Judge (Fast Track), Alwar. THE learned Additional Sessions Judge (Fast Track), Alwar framed charge against the three accused appellants, namely, Chhutta @ Gutta, Subhan Khan and Himmat under Sections 147, 148, 302/149, 307/149, 325/149, 323, IPC and Section 3/25 of the Arms Act. THEse accused also denied the charges and claimed trial. The prosecution produced and examined as many as 23 witnesses (PW 1 to PW 23) and exhibited 43 documents (Ex. P-1 to Ex. P-43) in support of its case. In defence, the accused examined one witness DW 1 Dr. Dinesh Gupta and exhibited 23 documents (Ex. D-1 to Ex. D-23 ). Explanations of the accused were recorded under Section 313, Cr. P. C. They denied the allegations and stated that due to enmity, they have been falsely implicated in the case. The learned Additional Sessions Judge (Fast Track), Alwar, after hearing the learned Public Prosecutor for the State and the learned counsel for the accused, and perusing & scanning the documents available on record, convicted and sentenced the accused-appellants vide her impugned judgment dated July 22, 2002, as mentioned above. ;