SHARMA, J. - (1.) SINCE these two matters relate to the incident occurred on October 31, 1990, we propose to decide them by a common judgment. APPEAL NO. 527/2000:
(2.) THE appellants eight in number were the accused on the file of learned Special Judge (Dacoity Affected Area) and Additional Sessions Judge, Dholpur in Sessions Case No. 18/1991. Learned Judge vide judgment dated September 6, 2000 convicted and sentenced the appellants as under:- Jandel Singh: U/s. 148 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 100/ -. in default to further suffer rigorous imprisonment for one month. U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. U/s. 324/149 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. U/s. 323/149 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. Soren: U/s. 148 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month. U/s. 302/149 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. U/s. 324 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. U/s. 323/149 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. Roopa @ Roop Singh, Veeri Singh, Bhajna, Shiv Ram, Vijay Pal and Ram Phool: U/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month. U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. U/s 324/149 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. U/s. 323 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. All the substantive sentences were directed to run concurrently. The prosecution case as unfolded during trial is that the informant Khoobi submitted a written report at Police Station Sadar Dholpur on October 31, 1990 with the averments that around 7. 00 am on the said day when the informant along with his father and mother were proceeding towards their field they were surrounded by the accused Ram Prasad (now dead), Veeri, Dhanna, Shiv Ram. Jandel, Soren, Vijay Pal and Ram Phool. Jandel and Soren were having guns, whereas others were having lathis. Jandel opened fire at Gokuli (the mother of informant) who died as a result of gunshot injuries. Soren opened fire that hit on the neck of the informant. Roopa and Ram Prasad inflicted lathi blows on the head of informant. Police Station Sadar Dholpur registered a case under sections 147, 148, 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 Special Judge (Dacoity Affected Area) and Additional Sessions Judge Dholpur. Charges under Sections 148, 302/149, 307/149, 323, 323/149 IPC and Sections 5/27 and 3/25 Arms Act were framed against the accused, who denied the charge and claimed trial. Accused Ram Prasad died during trial and proceeding against him stood drop. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence. Two witnesses were examined in defence. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. It is contended by learned counsel for the appellants that cross case arising out of the same incident was registered vide FIR No. 172/90 against the complainant party. It is next contended that the prosecution has not explained the injury sustained by the appellants which throw substantial doubt on the prosecution story. It is further contended that the independent witnesses Pw. 2, Pw. 3 and Pw. 7 did not support the prosecution story and they were declared hostile. Sum and substance of the submissions of learned counsel for the appellants is that the complainant party forcibly stopped the tractor of Ram Prasad and owing to this reason the alleged incident occurred and even if any injuries were caused by the appellant they were caused in the exercise of right of private defence. Per contra, learned Public Prosecutor supported the impugned judgment and contended that the appellants were rightly convicted and sentenced. We have pondered over the rival submissions and scanned the material on record.
(3.) AT the outset it will be appropriate to refer to the injuries sustained by the deceased. As per post mortem report (Ex. P-12) deceased Gokuli sustained following ante mortem injuries:- Stint R. H + Ext. injury punctured wound 4 in number 0. 1cm x 0. 1cm over manubrium sternil in an area of 1" in diameter. (2) Punctured wound 0. 1cm x 0. 1cm oralin upper part (R) chest in 2nd Intercostal space part below in latendeul 7th (R) clevicle. (3) Punctured wound 0. 1cm x 0. 1cm over (L) shoulder. The cause of death was haemorrhage and shock due to gunshot injury to the vital organs. It also appears that prosecution witnesses Khubi Ram (Pw. 1), Pattha (Pw. 4), Pappu (Pw. 5), Maharaj Singh (Pw. 2) and Kishan Singh (Pw. 3) also received injuries during the incident. Khubi Ram vide injury report (Ex. P-13) sustained following injuries:- (1) Lacerated wound 1/2 x 1/4 x bone deep outer middle of the occipital part of skull. (2) Cuting 1/2 x 1/2 internal 1/3 front spade (R) for arm. (3) Cuting 1 x 1/2 outer (R) shoulder. (4) Cutting with swelling 1 x 1/2 inter middle and from space (L) Fore arm. Pattha vide injury report (Ex. P-14) sustained following injuries:- (1) Cuting 1/2 x 1/2 outer middle lateral spade (L) fore arm (2) Swelling 1/2 x 1/2 outer knuckle of 2nd mid finger. (3) Lacerated wound 1/2 x 1/4 x muscle deep outer injury web (R) Index middle finger. (4) Cuting 2 x 1/2 middle upper 1/3 (R) back. (5) Cutting 1 1/2 x 1/2 intra middle outer space (L) thigh. Pappu vide injury report (Ex. P-15) sustained contusion with swelling 1 x 1/2 outer (L) knee. Maharaj Singh vide injury report (Ex. P-16) sustained following injuries:- (1) Lacerated wound 1/2 x 1/4 x muscle deep part behind (L) ear. (2) Abrasion 1/4 x 1/4 outer upper part of (R) ear. (3) Swelling 1/2 x 1/2 outer dorsal (L) hand. (4) Abrasion 1/4 x 1/4 outer middle of (L) back. Kishan Singh vide injury report (Ex. P-17) sustained following injuries:- (1) Lacerated Wound 1/2 x 1/4 x muscle deep intriddle of the skull (2) Cuting 1 x 1/2 outer upper 1/3 (R) back (3) Swelling 1/2 x 1/2 under (L) knee. At this juncture the injuries received by the accused may also be referred. Accused Shiv Ram vide injury report (Ex. P-1) sustained following injuries:- (1) Lacerated wound 3" x 1/2" x bone deep granible lession outer middle of the fore head. (2) Swelling 1/2 x 1/2 outer (L) head. (3) Contusion 1 1/2 x 1/2 outer middle of the (R) thigh anteriorly (green in colour) (4) Contusion 4 x 1/2 outer middle of the (R) back. (5) Swelling 1/2 x 1/2 outer back of the (R) thumb. (6) Contusion 1 x 1/2 outer (L) scapular region of back. Accused Ram Prasad vide injury report (Ex. P-5) sustained following injuries:- (1) Lacerated wound 4" x 1/2 x bone deep outer (L) fore head (2) Contusion 1/2 x 1/2 outer (L) shoulder. During the pendency of trial Ram Prasad died on January 21, 1991 and vide post mortem report (Ex. P-4) following ante mortem injuries were found on the dead body:- Stint-R. H. + External injury septic wound 2 1/2 x 1/2 over (L) fore head with pus discharge injury of the wound. The cause of death was septicemia caused by brain abresis. Accused Bhajan Singh vide injury report (Ex. P-6) sustained following injuries:- (1) Lacerated wound 1/2 x 1/4 x muscle deep outer interphalyned part of the (2) mid finger. (2) Contusion 1 x 1/2 outer (R) scapular region back. (3) Abrasion 2 1/2 x 1/4 outer upper 1/3 at space (L) thigh. ;