SHARMA, J. - (1.) THIS appeal impugns the judgment dated October 28, 2002 of the learned Additional Sessions Judge (Fast Track) Hindaun City rendered in Sessions Case No. 63/2001 (27/99) whereby the six appellants (herein after to be referred as `accused'), who are the members of one family, have been convicted and sentenced as under:- (1) Jagan Lal: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. U/s. 148 IPC: To suffer rigorous imprisonment for one year. U/s. 447 IPC: To suffer rigorous imprisonment for three months. U/s. 326/149 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. U/s. 323/149 IPC: To suffer rigorous imprisonment for six months. U/s. 3/25 Arms Act: To suffer simple imprisonment for one year and fine of Rs. 1000/- , in default to further suffer one month simple imprisonment. (2) Ramkesh: U/s. 302/149 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. U/s. 148 IPC: To suffer rigorous imprisonment for one year. U/s. 447 IPC: To suffer rigorous imprisonment for three months. U/s. 326/149 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. U/s. 323/149 IPC: To suffer rigorous imprisonment for six months. U/s. 3/25 Arms Act: To suffer simple imprisonment for one year and fine of Rs. 1000/-, in default to further suffer one month simple imprisonment. (3) Ramji Lal: U/s. 302/149 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. U/s. 148 IPC: To suffer rigorous imprisonment for one year. U/s. 447 IPC: To suffer rigorous imprisonment for three months. U/s. 326 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. U/s. 323/149 IPC: To suffer rigorous imprisonment for six months. (4) Mangal, (5) Roop Narayan and (6) Beerbal: U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. U/s. 148 IPC: To suffer rigorous imprisonment for one year. U/s. 447 IPC: To suffer rigorous imprisonment for three months. U/s. 326/149 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment. U/s. 323 IPC: To suffer rigorous imprisonment for six months. Substantive sentences were directed to run concurrently.
(2.) THE prosecution story as pictured during trial runs like thus:- On October 29, 1998 a written report was submitted by Laxman (Pw. 2) at the police station Gadhmora to the effect that at about 7. 00 AM the accused persons came in a tractor to the field of his father in law to uproot the standing crop. On being objected by the complainant party the accused Jagan and Ramkesh opened fire that hit Mangal and Sanwaliya. THE women also sustained pellets injuries. THE incident was narrated by Sanwaliya to the informant. THE Police Station Gadhmora on the basis of said report registered the case under sections 147, 148, 149, 323, 324 and 307 IPC and 3/25 & 3/27 Arms Act and investigation commenced. During investigation Mangal died and the case was converted into one under section 302 IPC. After usual investigation charge sheet was filed. In due course the case came up for trial before the Learned Additional Sessions Judge (Fast Track) Hindaun. Charges under sections 148, 447, 302, 302/149, 307/149, 326/149, 323 IPC and 3/25 Arms Act were framed. THE accused denied the charges and claimed trial. THE prosecution in support of its case examined as many as 22 witnesses. In the explanation under section 313 Cr. P. C. , the accused claimed innocence and stated that at the time of the incident the land in question had been in the possession of the accused party and they had sown mustard crop over it. THE incident occurred when the complainant party tried to take possession of the land. In support of defence version one witness was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. Before adverting to the contentions canvassed at the bar, it will be useful to consider the medical evidence adduced at the trial. Dr. Sumant Dutta (Pw. 20), who performed autopsy on the dead body of Mangal Ram, incorporated in the postmortem report (Ex. P-25) following ante mortem injuries:- " 1. 2 Parallel bruise 9 x 1/2 cm each a gap of 1cm in between meeting at both ends reddish colour on Rt. shoulder laterally up to arm upper 1/3. 2. Multiple punctured lacerated wound oval to irregular shape inverted edges reddish clotted blood with collor or abrasion no signing no blackening no tattooing spreaded on Rt. fore arm middle 1/3 and lower 1/3 aspect and in area of 18 x 9 cm each entry wound 1/4 x 1/4 cm to 1/2 x 1/4 cm muscle deep skin deep. Pellets recovered from subcut to muscle with antemortem haematoma. 3. Abrasion 1 x 1 1/2 cm Rt. fore arm middle 1/3 outer aspect. 4. Abrasion 3 x 1/4 cm Rt. fore arm middle 1/3 outer aspect. 5. Abrasion 2 x 1/2 cm outer aspect reddish colour Rt. fore arm middle 1/3. 6. Abrasion 1/2 x 1/2 cm left part lower back reddish colour. 7. Multiple punctured lacerated wound 1/4 x 1/4 to 1/4 x 1/6cm collar of abrasion no signing no blackening, no tattooing reddish colour inverted edges in an area Rt. frontal forehead middle Rt. side forehead Rt. eyebrow Rt. fronto parietal region in an area of 12 x 18cm area. On ex. lacerated wound 10 x 8 cm x scale bone deep parito frontal region with irregular edges these are brain deep to scalp deep entry wound of fire arm. Each punctured wound on exploration shows scalp haematoma. The cause of death was coma brought as a result of antemortem injuries to skull, brain. The injuries sustained by other members of the complainant party viz. Bhart Bai (Pw. 3), Mohani (Pw. 5), Dhan Bai (Pw. 7) and Sanwaliya (Pw. 8) were also examined. The details of which are as under:- Bhart Bai vide injury report (Ex. P-1):- 1. Multiple fire arm wound of entrance 1/2 cm x 1/2 cm on left hand left fore arm extending up to left elbow joint and lower 1/3rd. On X-ray vide X-ray Report (Ex. P-3) the fracture of Ist metacarpal bone was found. Mohani vide injury report (Ex. P-4):- 1. Red contusion on right shoulder joint with swelling and tenderness 7cm x 4cm 2. Red contusion on Rt. leg upper 2/3rd 7cm x 4cm 3. Oblique lacerated wound 2cm x 1/2 cm skin deep on right hand thumb with bleeding. Dhan Bai vide injury report (Ex. P-5):- 1. Red contusion on left forearm with swelling and tenderness 10cm x 4cm. Sanwaliya vide injury report (Ex. P-6):- 1. Oblique incised wound 20cm x 8cm on right back of chest with skin x muscle and bone deep on right back of chest with bleeding with extending to right lung with air is coming. 2. Oblique Red Contusion 10cm x 8cm on right hand anterior surface with swelling and tenderness of fingers. 3. Oblique Red contusion 10cm x 4cm on left hand with contusion 20cm x 20cm on left hand index finger & deformity. On X-ray vide X-ray Report (Ex. P-7) the fracture of proximal phalanx of 2nd digit and 5th metacarpal was found. Not only the members of the complainant party but the accused persons Jagan Lal, Ramkesh Meena, Beerbal, Kamli and Bhagoti also received injuries in the course of the incident. Jagan Lal vide injury report (Ex. D-1) received following injuries:- 1. Red contusion 7cm x 4cm left hand with swelling and tenderness. 2. Red contusion 7cm x 4cm left leg with swelling and tenderness. 3. Red Contusion 7cm x 2cm left forearm mid part. 4. Red contusion 2cm x 4cm front part of skull frontal region with haematoma. 5. Red contusion 2cm x 2cm left hand thumb. 6. Oblique red contusion 7cm x 2cm on left back of chest. Injury report (Ex. D-2) of Ramkesh Meena reads as under:- 1. Oblique incised wound 7cm x 4cm skin deep left leg upper 1/3rd part with bleeding. 2. Red contusion 7cm x 2cm on right hand & rt. Wrist joint with swelling and tenderness. 3. Red Contusion 7cm x 4cm left shoulder joint. 4. Red contusion 3cm x 2cm on left lateral conthus of eye. Injury report (Ex. D-3) of Beerbal reads as under:- 1. Red contusion 7cm x 2cm on right back of chest with swelling. 2. Red contusion 2cm x 2cm on left knee. 3. Red Contusion 3cm x 2cm on right knee. 4. Red contusion 3cm x 2cm on front of chest. Injury report of Kamli (Ex. D-4) reads as under:- 1. Red contusion 7cm x 3cm on right leg upper 2/3rd part. 2. Red contusion 7cm x 4cm on right renal angle back region. 3. Red Contusion 4cm x 2cm on waist region. 4. Red contusion 7cm x 4cm on back of chest. Injury report of Bhagoti (Ex. D-5) reads as under:- 1. Red contusion 7cm x 4cm on left ankle joint with tenderness and swelling. 2. Red contusion 7cm x 4cm on left hip joint. 3. Red Contusion 7cm x 4cm on back of chest. In the above back ground let us now analyse and examine the evidence both oral and documentary and see whether conclusion arrived at by the learned Trial Court is correct or not.
(3.) THE structure of the prosecution case is founded on the testimony of Bhart Bai (Pw. 3), Mohani (Pw. 5), Dhan Bai (Pw. 7) and Sanwaliya (Pw. 8) who sustained injuries during incident. Bhart Bai in her deposition stated that she had sown mustard crop on the agricultural land belonging to Jagan S/o Jinsi her father in law. On the date of incident accused Jagan T. T. , Ramkesh, Ramji Lal, Roop Narain, Beerbal, Mangal and Birju came to the field to uproot the crop. Jagan T. T. was armed with gun, Ramkesh had gandasi and small gun, Birju, Ramjilal, Beerbal, Roop Narain and Mangal were respectively having gun, Gandasi, lathis and Karwadis. On seeing them coming to the land when Bhart Bai, Mangal, Mohani, Sanwaliya and Dhan Bai protested Jagan T. T. opened fire that hit the head of Mangal as a result of which he fell down. Ramkesh then inflicted gandasi blow on the head of Mangal and also opened fire that hit the chest of Mangal. Birju opened fire that hit the left hand of Bhart Bai. Ramji Lal gave Gandasi blow on the back of Sanwaliya. All the injured were were removed to the Hospital Karauli. Mangal and Sanwaliya were referred to Jaipur where Mangal succumbed to the injuries. Testimony of Bhart Bai gets corroboration from the statements of Mohani, Dhan Bai and Sanwaliya. Sanwaliya (Pw. 8) in his cross examination however stated that agricultural field where the incident had taken place belonged to his elder brother Jagnya who had sown mustard crop on it. At the time of incident though Jagnya was not present but the report of the incident was lodged by Jagnya. Sanwaliya further stated that after the accused party started uprooting mustard crop, complainant party entered the field. Manju (Pw. 4) grand daughter in law of Jagnya deposed that the land on which incident occurred belonged to Jagnya alone and Mangal (deceased) and Sanwaliya had no connection with the land. Gurji Lal Meena I. O (Pw. 21) admitted in his cross examination that revenue record of the agricultural land where the incident occurred, was in the name of accused Ramkesh and his brother Dinesh. Gurji Lal Meena however could not approach Jagnya who was ex-khatedar of the land. ;