SHARMA, J. - (1.) THREE `history Sheeters', as per the ocular evidence were cruelly murdered by the assailants with fire arms and sharp edged weapons but the autopsy reports did not reveal gun shot injuries. This consistency persuaded learned counsel to canvass that conviction of the appellants was virtually a `moral conviction'. The question therefore emerges in these appeals is as to whether the distance of the prosecution story between `may be true' and `must be true' is bridged by legal reliable and unimpeachable evidence.
(2.) AS many as seventeen accused persons faced trial in Sessions Cases No. 83/2001, 137/2000 and 60/2002 before the learned Additional Sessions Judge No. 1 (Fast Track) Kota (for short `trial judge') who vide Judgments dated September 22, 2001, November 22, 2001 and September 23, 2003 acquitted three but conviction and sentenced fourteen as under:- (1) Prabhu Lal, (2) Ram Charan, (3) Akheraj, (4) Nand Bihari, (5) Shiv Prasad, (6) Durga Shankar, (7) Bhagirath, (8) Sita Ram, (9) Kanhaiya Lal @ Kana, (10) Badri Lal, (11) Daulat Ram, (12) Radhey Shyam s/o Raghunath, (13) Bhawani Shankar and (14) Radhey Shyam s/o Heera Lal: U/s. 148 IPC: Each to suffer rigorous imprisonment two years and six months and fine of Rs. 1000/-, in default to further suffer seven days simple imprisonment. U/s. 302/149 IPC: Each to suffer life imprisonment and fine of Rs. 5000/-, in default to further suffer one month simple imprisonment. The substantive sentences were directed to run concurrently. These fourteen accused are the appellants in the instant nine appeals. Since all these appeals arise out of the same incident, we proceed to decide them by a common judgment. First information report regarding the incident was lodged by Kishan Lal (PW. 1) with police station Itawa (Kota) at 1 AM on May 13, 1990 in regard to murder of Surajmal, Shishupal and Khemraj. The fourteen appellants and three others were named in the report. Appellants Durga Shankar and Sita Ram were alleged to open fire with the guns, pallets of which hit Shishupal, Suraj Mal, Khemraj and Raghu Nath (PW. 4 ). Informant Kishan Lal and Raghu Nath some how escaped but Shishupal, Suraj Mal and Khemraj had been given merciless beating with sharp edged weapons and they died on the spot. Police Station Itawa registered a case under Sections 147, 148, 149, 307 and 302 IPC and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 (Fast Track) Kota. Charges under Sections 148, 302/149 and 307/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the arguments of learned counsel for the appellants and learned Public Prosecutor and scanned the entire evidence on record. Before we deal with the contentions raised, it will be appropriate to take stock of the injuries sustained by the three deceased and injured Raghunath. As per post mortem report (Ex. P. 27) deceased Shishupal sustained following ante mortem injuries:- " Incised wound over forehead : size 4" deep to bone, Transverse in direction Incised wound over Lt. parietal region size 4" x 2" x deep to bone parallel to middle lacerated wound over outer side of Lt. orbit size deep to bone. The cause of death in the opinion of doctor was cerebral haemorrage following head injury. "
(3.) DECEASED Khem Raj vide post mortem report (Ex. P. 28) received ante mortem injuries thus:- " Lacerated wound 1 over outer side of Rt. orbit size 2" x 2" x 1" Three lacerated wounds over occipital region size 3" x 2" Lacerated wound over Lt. leg, medial size, size 1/3' x 1/3" x 1 shape no fragments of bullets of vailatin. The cause of death in the opinion of doctor was cerebral haemorrage following head injury. " Post mortem report (Ex. P. 29) demonstrates the injuries of Suraj Mal as under:- " Two incised wound over chin - size 3" x 2" x deep to bone transverse direction, Incised wound over Lt. Parietal region size 4" x 2" x deep to bone. Transverse in direction. Incised wound over Lt. Leg size 1/3rd x 1/3rd x deep to bone oval shape, no fragments at bonear brought in round. Two bruise over Lt. knee joint. The cause of death in the opinion of doctor was cerebral haemorrage following head injury. " Raghunath (PW. 4) vide Injury Report (Ex. P. 30) sustained one Lacerated wound measuring 1" x 1/8" x 1/8" over Rt. leg back side 6" below from knee joint. ;