SHARMA, J. - (1.) TEN appellants viz. Shiv Singh, Mohan Singh, Rajendra Singh, Suresh, Jaidev, Bhupendra, Kishan, Vijay, Nirbhay and Mohammad along with one Khem Singh (now deceased) were the accused on the file of learned Additional Sessions Judge (Fast Track) No. 2 Bharatpur bearing Sessions Case No. 51/2001. Learned Judge vide judgment dated August 5, 2002 convicted and sentenced the appellants as under:- U/s. 302/149 IPC: Each to suffer Life imprisonment and fine of Rs. 500/- in default to further suffer six months imprisonment. U/s. 323 IPC: Each to suffer simple imprisonment for six months. U/s. 148 IPC: Each to suffer simple imprisonment for one year. Appellants Rajendra Singh and Nirbhay were also convicted and sentenced under section 3/25 Arms Act to suffer simple imprisonment for one year and fine of Rs. 500/- in default to further suffer two months simple imprisonment. All the sentences were ordered to run concurrently.
(2.) THE prosecution case as unfolded during trial is as under:- On August 4, 1997 at 11. 30 AM informant Prakash (Pw. 1) submitted a written report (Ex. P-1) at police station Nadabi, stating therein that around 6-7 AM when he accompanied by his younger brother Brijendra Singh (deceased) had been to their field, the appellants armed with Lathis, Pharsas and Guns came over there. Shiv Singh exhorted to kill the informant and Brijendra Singh thereupon Rajendra Singh opened fire that hit the neck of Brijendra Singh. Another fire opened by Nirbhay caused injury on the left side of chest and third fire opened by Mohan Singh hit the chin of Brijendra Singh. Mohammad then gave Pharsa blow on the nose whereas other assailants inflicted lathi blows. Brijendra Singh died on the spot. Hearing the alarm raised by informant Siya Ram and Ram Kishan rushed to the spot. Before fleeing away the assailants gave beating to informant and Siya Ram and threatened their family members. THE Police Station Nadbai registered a case under sections 147, 148, 149, 302 and 323 IPC and 3/25 Arms Act and investigation commenced. Post mortem on the dead body was performed, statements of witnesses were recorded, the accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Bharatpur. Charges under sections 147, 148, 149, 323, 307 and 302 IPC and 3/25 Arms Act were framed. THE appellants denied the charges and claimed trial. THE prosecution in support of its case examined as many as 15 witnesses. In the explanation under section 313 Cr. P. C. , the appellants claimed innocence. THE appellants examined one witness in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard learned counsel for the parties and closely scrutinised the material on record. Death of Brijendra Singh was homicidal in nature as is evident from the postmortem report (Ex. P-31) according to which following ante mortem injuries were found on the dead body:- 1. Contusion (red) 2 1/2 x 2cm on Lt. arm antro laterally in upper half 2. Abrasion (bright red) 3 x 1/3 cm on chest Rt. side below clavicle in Ist ICS, 3. Abrasion (bright red) 1 1/2 x 1/3 cm on chest Rt. side below clavicle in IInd ICs 4. Abrasion (bright red) 2 1/2 x 3/4 cm on Rt. elbow posteriorly. In all gun shot wound there is wound of entry no any wound of entry. There is no blackening, no gun powder, no burning and no tattooing direction is inward to body. Margin of wound are inverted. On face 7 gun shout wound 1/4 x 1/4 cm x bone deep with bleeding. On neck 13 gun shot wound 1/4 x 1/4 muscle deep with bleeding On Rt. shoulder region 2 gun shot wound 1/4 x 1/4 x bone deep with bleeding. On Lt. shoulder 2 gun shot wound 1/4 x 1/4 cm x bone deep. On lt. side of chest 8cm shot wound 1/4 x 1/4 with bleeding. In the opinion of Dr. Mangi Singh (Pw. 9) the cause of death was due to injury to lung and heart leading to hemorrhage shock. As already noticed, the eye witnesses of the occurrence according to FIR, were Siya Ram, Ram Kishan and Prakash (informant), out of which Ram Kishan (Pw. 5) did not support the prosecution case and was declared hostile. Informant Prakash (Pw. 1) in his deposition stated that on August 4, 1997 around 6-7 AM when he along with his younger brother Brijendra Singh had gone to their field for easing themselves, the appellants came armed with Lathis, Pharsas and Guns and surrounded them. Shiv Singh then exhorted Rajendra and Mohan to kill informant and his brother. Rajendra then opened fire that hit the neck of Brijendra. Another fire opened by Nirbhay caused injury on the chest and third fire opened by Mohan Singh hit the chin of Brijendra Singh. Mohammad inflicted Pharsa blow on the nose of Brijendra. On hearing alarm Siya Ram, Prem Singh and other villagers gathered. All the assailants then inflicted lathi blows on the person of Brijendra. The informant was also given beating by Kishan and Bhupendra. Brijendra died on the spot. In the cross examination Prakash denied the suggestion that when Birbati wife of Rajendra had gone to the field, she was caught hold of by informant, Brijendra, Siya Ram, Prem Singh and Ram Kishan and they made attempt to undress her. On hearing her hue and cry Rajendra Singh, Suresh, Khem Singh and Kishan Singh reached there and Brijendra Singh gave Pharsa blow on the person of Rajendra Singh. It also appears from the cross examination that complainant party and the appellants were the neighbours. Testimony of Prakash gets corroboration from the statement of Siya Ram (Pw. 2 ).
(3.) MAHAVIR Singh, I. O. (Pw. 11) in his deposition stated that at the instance of Nirbhay he recovered the Gun from the house (Kotha) of Mohan Singh. He also admitted that Virwati wife of Rajendra Singh filed private complaint in the court which was sent to police station under section 156 (3) Cr. P. C. for investigation and thereupon he registered the FIR and after investigation he filed charge sheet against Ram Kishan, Prakash, Prem Singh and Siya Ram for the offences under Sections 147, 148, 323, 324 and 354 IPC. Factual scenario emerged on a careful scrutiny of record may be summarised thus:- (i) All the appellants except Nirbhay were the inhabitant of village Khurrampur where the incident occurred. (ii) Nirbhay was the brother in law (Sala) of appellant Rajendra and resided in another village Sedoli. (iii) Virwati, wife of Rajendra and real sister of Nirbhay, instituted a cross case against informant Prakash, Ram Kishan, Prem Singh and Siya Ram under sections 354, 147, 148, 323 and 324 IPC. Injuries sustained by Rajendra got examined and after investigation charge sheet was filed. (iv) Gun was shown to have been recovered from the house of Mohan Singh at the instance of Nirbhay. Motbirs Bhagwan Singh (Pw. 4) and Tara Chand (Pw. 15) did not support the recovery. (v) Despite the allegations against Mohan Singh that he caused gun shot injury to the deceased, no Gun was recovered at the instance of Mohan Singh. (vi) As per Post Mortem Report injuries No. 1 to 4 were contusion and abrasions and other injuries were caused by fire arm. No injury by sharp edged weapon, as narrated by Prakash and Siya Ram, was however found on the dead body. (vii) The District Magistrate was not examined to prove the sanction for prosecution under section 3/25 Arms Act. (viii) Dr. Mangi Singh (Pw. 9) deposed that the appellant Rajendra also received injuries in the same transaction and as per injury report Ex. D-3 Rajendra sustained as many as seven injuries out of which one was incised wound and one lacerated wound on the skull. (ix) The injuries received by Rajendra have not been explained by the prosecution. It is well settled that non explanation of injuries is a factor which is to be taken into account in judging the veracity of the prosecution witnesses and the court has to scrutinize the evidence with care. In the instant case non explanation of injuries received by appellant Rajendra and the cross case registered against the complainant party on the basis of complaint made by the wife of Rajendra do not lead us to believe that the incident originated in the manner alleged by the prosecution. On a careful analysis of material on record, we find that the prosecution is able to establish beyond reasonable doubt the presence of appellants Rajendra Singh and Mohan Singh at the time of incident. Appellant Nirbhay Singh being the brother in law of Rajendra Singh appears to have been over implicated. The recovery of gun at his instance from the house of appellant Mohan Singh is also doubtful. Nirbhay Singh was the inhabitant of another village and his presence at the time of incident does not appear to be natural. ;