SHARMA, J. - (1.) OUT of eight accused persons, who were put to trial in Sessions Case No. 22/1997, the learned Additional Sessions Judge No. 2, Jaipur District, Jaipur convicted two and acquitted six vide Judgment dated March 23, 2001. The two convicted accused Bharat Singh and Jagdish Singh were sentenced as under :- Jagdish Singh: U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment. U/s. 323/34 IPC: To suffer six months simple imprisonment. Bharat Singh: U/s. 302/34 IPC: To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month simple imprisonment. U/s. 323 IPC: To suffer six months simple imprisonment. Substantive sentences were ordered to run concurrently. Findings of conviction and acquittal have been assailed in appeal No. 198/2001 and revision petition No. 228/2001, respectively.
(2.) THE prosecution story as unfolded during trial is like this- On March 24, 1997 the informant Inder Singh (PW. 2) submitted a written report (Ex. P. 5) at the police station Chaksu to the effect that in the preceding night around 10. 30 PM while the informant along with Mittu Singh, Madan Singh, Gokul Singh, Bal Singh, Bahadur Singh, Nathu Singh and Ummed Singh were celebrating the festival of Holi by singing songs in the chowk of Badbawanpura, Bharat Singh, Mohan Singh, Jagdish Singh, Samundra Singh, Guman Singh, Bhanwar Singh, Prahlad Singh and Ragho Singh (accused) came over there. Finding them singing with the beats of CHANG, the informant and his group also joined them in singing the songs. This act of complainant party was not liked by them and they objected to it. After some altercations Bharat Singh grabbed the color of informant and Mohan Singh gave a fist blow. When informant's son Mitthu Singh intervened, he was also given beating with legs and fists. In the meanwhile Jagdish Singh went to his nearby house and came out with 12 bore gun and opened fire at Mitthu Singh as a result of which Mitthu Singh sustained gunshot injury on his abdomen and he fell down. THE informant took injured Mitthu Singh to police station and lodged the report. A case thereafter was registered under sections 147, 323, 341, 307, 148, and 149 IPC and investigation commenced. After the death of Mitthu Singh Section 302 IPC was added. Autopsy on the dead body was performed, statement of witnesses under Section 161 Cr. P. C. were recorded, necessary memos were drawn. accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Jaipur District, Jaipur. Charges under Sections 148, 323, 325/149, 302 and 302/149 IPC were framed. THE accused denied the charges and claimed trial. THE prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions decided the case as indicated above. Death of Mitthu Singh was indisputably homicidal in nature. As per post mortem report (Ex. P. 37) following ante mortem injuries were found on the dead body:- 1. Abrasion red 12 x 1/2 cm over back crossing thorasic vertenrac with tissue staining. 2. Multiple punctured lacerated wound with size 1/4 cm in diameter margin with inverted, color of abrasion present with blackening tattooing present with dry dark rend clotted blood present in an area of 22 x 16cm on (R) side front of abdomen lower part (R) iliac fossa (R) Public region extending upto (R) iliac crest and medial part of (R) buttock with a lacerated punctured wound of size 3x2cm on (R) inguinal region with cartridge in the wound. The cause of death was shock due to hammorhage brought about as a result of antemortem injuries. According to Dr. M. L. Kanwat (PW. 24), who performed autopsy on the dead body, the injury No. 2, caused by fire arm was sufficient, in the ordinary course of nature, to cause death. It will be appropriate at this juncture to refer to the injuries sustained by the informant Inder Singh and accused Jagdish Singh 7 Bharat Singh. Inder Singh vide injury report (Ex. P. 7) had sustained following injuries:- 1. Abrasion 1 1/2 cm x 1cm middle of forehand on frontal region. 2. Swelling with tenderness 2 1/2 cm x 1 1/2 cm Dorsal aspect of mid of right middle finger. 3. Diffuse swelling with tenderness left ankle joint. Accused Jagdish Singh vide injury report (Ex. P. 16a) received following injuries:- 1. Stitched wound 4 cm long obliquely irregular in shape just above left nipple extending medially with diffuse swelling. 2. Lacerated wound 5 cm x 1/2 cm x sub cutaneous deep transversely with fresh dry clotted blood. 3. Multiple lacerated wound 5 in number 1 x 1/2 to 1/2 x 1/4 cm up to sub cutaneous deep on (illegible) skin 5 cm lateral to chest. Following injuries were found on the person of accused Bharat Singh vide injury report (Ex. P. 18a):- 1. Lacerated wound irregular Margin deep clotted blood obliquely extending from left eye upto left eye brows laterally 3cm x 1/2 cm x sub cutaneous tissue deep & 1 cm x 1/2 cm x S. C. deep extend. Left eye lid. 2. Two lacerated wound irregular margin on left parietal region 2 x 1/4 & 1 1/2 x 1/4 cm up to scalp deep. 3. Lacerate wound 1 x 1/2 cm x muscle deep on (illegible) medial aspect of left.
(3.) ALTHOUGH Mr. N. A. Naqvi, learned counsel for the accused criticised the impugned judgment from various angles, his main contention was that non explanation of the injuries sustained by accused Jagdish Singh and Bharat Singh is fatal to the prosecution case. The prosecution has suppressed the genesis of the incident therefore it can be inferred that the incident had not occurred in the manner as suggested by the prosecution. It was also contended that the incident had taken place all of sudden without any premeditation and so many persons were having guns in their hands while they were celebrating Holi festival, therefore the charges against the accused are not established beyond reasonable doubt. Moreso, no case under Section 302 IPC is made out against the accused. It is also canvassed that accused Bharat Singh did not share common intention with Jagdish Singh, therefore his conviction under Section 302/34 IPC also deserves to be set aside. Per contra, Mr. S. R. Surana, learned counsel for the complainant, and Mr. M. L. Goyal, learned Public Prosecutor, supported the finding of learned trial Judge qua the accused Jagdish Singh and Bharat Singh and urged that not only Bharat Singh & Jagdish Singh but Mohan Singh, Prahlad Singh, Samunder Singh, Bhanwar Singh, Guman Singh and Radho Singh were liable to be convicted with the aid of section 149 IPC as they were members of unlawful assembly and their common object was to kill Mitthu Singh. In support of their contention learned counsel for both the sides placed reliance on various authorities, that shall be considered at appropriate juncture. ;