SHARMA, J. - (1.) THE appellants, eight in number, were the accused on the file of learned Additional Sessions Judge No. 1 Alwar bearing Sessions Case No. 27/1997. Learned Judge vide judgment dated October 22, 1999 convicted and sentenced the appellants as under:- Amru Khan: U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s. 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 100/ -. in default to further suffer rigorous Imprisonment for fifteen days. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/149 IPC: To suffer Rigorous Imprisonment for three years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/27 Arms Act: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. Sahabuddin @ Sabu: + U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s. 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/ -. in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/149 IPC: To suffer Rigorous Imprisonment for three years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. Mohd. Rafi: U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/ipc: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/27 Arms Act: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. Suleman, Jagmal, Khursheed, Nasru and Hanif: + U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s. 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/149 IPC: To suffer Rigorous Imprisonment for three years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. All the substantive sentences were directed to run concurrently.
(2.) IT is the prosecution case that informant Aseen (PW. 1) submitted a written report (Ex. P-1) with the police station Sadar Alwar on December 29, 1995 with the averments that in the morning while Sameer (now deceased) proceeded from his farm house, found on the way Amru, Mohd. Rafi, Hanif, Shabu, Jagmal. Suleman and Khurshid (appellants) sitting near their well. Amru, Mohd. Rafi, Hanif and Shabu were armed with guns whereas others had sticks. No sooner did Sameer pass near the well, the appellants ran after him and opened fire at Sameer. On hearing hue and cry, when the informant, Rudi and Iliyas reached there. Mohd. Rafi opened fire at Rudi, whereas Hanif and Shabu fired gunshots at Iliyas Sameer and Iliyas died at the spot and Rudi sustained injuries. On the basis of the said report case under sections 147, 148, 149, 307 and 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Alwar. Charges under Sections 147, 148, 302, 302/149, 307/149 IPC and Sections 3/25 and 3/27 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. We have heard the submissions advanced before us and weighed the material on record. Dr. Amar Singh Rathore (PW. 10) performed autopsy on the dead bodies of Sameer and Iliyas and examined the injuries of Ruddi. As per post mortem report (Ex. P-14) Sameer received following injuries:- `1. Fire Arm Wound: six in number placed on anterior lateral part of left arm, size of x each, red clotted blood, collar abrasion. 2. Fire arm wound: Lt. Shoulder plaster on anterior part & back part of upper chest. Nine in number, x cm each, red clotted blood, collar of abrasion present. 3. Fire arm wound: 21 in number left side neck x cm size each, red clotted blood, collar of abrasion present. Dissect: all muscles of neck, blood vessels ruptured, large hamatory. 4. Fire arm wound: Five in number, red clotted blood, collar of abrasion present. Placed on It. side upper anterior chest wall. The cause of death was shock caused by injuries to lung and blood vessels of heart. " Deceased Iliyas vide post mortem report (Ex. P-13) sustained following injuries:- " 1. Fire Arm Wound: two in number upper lip x size, red clotted blood, collar abrasion. 2. Fire arm wound: Rt. arm x cm size red clotted blood, collar of abrasion. 3. Fire arm wound: five in number x cm size each. red clotted blood, collar of abrasion present. Posterior lateral aspect of 12% fire arm on upper 2/3rd level. 4. Fire arm wound: Rt. thigh x cm size red clotted blood, collar of abrasion. 5. Fire arm wound: six in number, placed on anterior chest and lateral chest wall 12% chest wall. Red clotted blood, full of blood. " The cause of death was shock caused by injuries to lung and blood vessels of Rt. side heart. " Injured Rudi vide injury report (Ex. P-15) received following injuries:- " 1. Multiple lacerated Wound: x size each, red clotted blood, collar abrasion, 15 in number. 2. Multiple lacerated wound: x cm size each, red clotted blood, collar of abrasion present. Anterior chest 8 in number of Rt. arm. 3. three lacerated wound; collar of abrasion. 4. Multiple lacerated wound x cm size each. Rt. arm and Rt. fore arm. 5. Lacerated wound x cm red clotted blood, collar abrasion left thigh. " Having carefully gone through the testimony of Dr. Amar Singh Rathore, we noticed that the death of Sameer and Iliyas was homicidal. Coming to the prosecution evidence we find that Rudi (PW. 3) is the injured eye witness. In his deposition Rudi stated that Amru, Mohd. Rafi, Hanif, Jagmal, Shabu, Suleman and Khursheed who were sitting on the well started beating Sameer while he was passing near the well. Sameer then rushed to the field of Ali Mohammad. The assailants chased him and Amru opened fire at Sameer, as a consequence of which Sameer fell down. In the meanwhile, he (Rudi), Iliyas and Asina reached there and Mohd. Rafi fired gunshot at Rudi and Hanif opened fire that hit Iliyas, as a result of which Iliyas fell down. In the cross examination. Rudi stated that Shabu was not having gun and he did not open fire at Iliyas. He disowned several part of his police statement Ex. D-3. He denied to have seen the injuries on the person of appellant Jagmal. He also denied to have entered into compromise with Jagmal. Testimony of Rudi has been corroborated by Asina (PW. 1), Roshan (PW. 2), Sumer (PW. 4), Simru (PW. 6) and Rehmat (PW. 7 ).
(3.) AT this juncture, it may also be noticed that Dr. Amar Singh Rathore (PW. 10) examined the injuries of appellant Jagmal while he was admitted in Orthopedic ward of the Hospital. Jagmal sustained as many as six injuries, out of which injuries No. 1&5 were grievous in nature. A look at the injury report (Ex. D-9a) reveals that Jagmal had sustained following injuries:- " 1. Incised wound 2 x 1cm x ? deep Lt. leg (red clotted blood) 2. Diffuse swelling Lt. foot 3. Lacerated wound 3 x x cm Rt. side skull 4. Abrasion 3 x 12cm with diffuse swelling fore arm 5. Diffuse swelling Lt. side chest 6. Abrasion 4 x 3cm Lt. side skull" It is contended on behalf of the appellants that even though FIR was lodged on December 29, 1996 but the same was sent to Ilaqua Magistrate on January 2, 1996 after considerable delay of four days and prosecution has failed to explain the delay therefore it may be inferred that the prosecution case is shrouded with doubtful circumstances. Reliance is placed on Bijoy Singh vs. State of Bihar (1), and Suresh Chaudhary vs. State of Bihar In Bijoy Singh vs. State of Bihar (supra), their Lordships of Supreme Court indicated thus:- (para 7) "sending the copy of the special report to the Magistrate as required under section 157 of the Criminal Procedure Code is the only external check on the working of the policy agency, imposed by law which is required to be strictly followed. They delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Crpc is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. " In Suresh Chaudhary vs. State of Bihar (supra), Hon'ble Supreme Court observed as under:- ". . . That apart, the express message which PW. 13 sent to the Jurisdictional Magistrate reached the said Magistrate at his place only on 12. 10. 1992 nearly 1, days after the said complaint was registered and we find no explanation from PW. 13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case. " Refusing the contentions learned Public Prosecutor and the learned counsel for the complainant urged that since the case is otherwise trustworthy, no adverse inference can be drawn. Reliance is placed on Alla China vs. State of A. P. (3), and Anil Rai vs. State of Bihar In Alla China's case it was held that if any delay is caused in sending the FIR to the Magistrate, which the prosecution fails to explain by furnishing reasonable explanation, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be credible. However, if it is otherwise, an adverse inference may be drawn against the prosecution. In Anil Rai vs. State of Bihar (supra), it was indicated that where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR. delay in sending the copy of the report to the Magistrate cannot be itself justify the conclusion that the investigation was tainted and the prosecution insupportable. ;