BALI, J. - (1.) BY this common judgment, we propose to dispose of three connected criminal appeals bearing No. 252/2000, No. 309/2000 and No. 248/2000 as the same emanate from a common order of conviction and sentence dated 1. 5. 2000 recorded by the Additional Sessions Judge No. 1, Bundi. Learned counsel appearing for the parties also suggest likewise.
(2.) WHEREAS Appeal No. 252/2000 has been filed by Murli, Heera and Chhitar, Appeal No. 309/2000 has been filed by Kanwar Lal and Bhanwar Lal and Appeal No. 248/2000 has been filed by Bhairu and Mohan Lal. The appellants named above have been held guilty for offences u/s 147, 148, 302, 323, 325 read with Sec. 149 IPC and sentenced to undergo R. I. for life as also to pay fine of Rs. 1,000/- each and in default of payment of fine, to further undergo RI for a period of six months. They have been convicted for various offences as mentioned below: Sec. 302/149 IPC- Life imprisonment and fine of Rs. 1000/-, in default of payment of fine, six month's rigorous imprisonment. Sec. 147 IPC- 1 year imprisonment and a fine of Rs. 200/-, in default of payment of fine, further one month's rigorous imprisonment. Sec. 148 IPC- 2 years imprisonment and a fine of Rs. 250/-, in default of payment of fine, R. I. for 2 months Sec. 325/149 IPC- 3 years' imprisonment and a fine of Rs. 300/-, in default of payment of fine, further imprisonment for 2 months. Sec. 325/149 IPC- 6 months' rigorous imprisonment and a fine of Rs. 250/-, in default of payment of fine, further imprisonment for 1 month. The appellants were tried for murder of Virendra Singh Hada Patwari, who as per the prosecution version was brutally done to death by the appellants on 14. 9. 1987 at 9. 15 p. m. The FIR with regard to the incident came to be lodged by Lokendra Singh (PW-1) which was recorded by Nathu Ram, SHO. The FIR was recorded on the same day at 9. 30 p. m. The special report reached the concerned Magistrate on next day-15. 9. 1987 at about 10. 50 a. m. While unfolding the prosecution version, Lokendra (PW-1) got recorded in the FIR (Ex. P. 1) that today just some time ago, at about 9. 15 p. m. he, his real brother Virendra Singh and Badri were standing at the betel shop of Latoor Mali on Bundi Road. It is only 5-7 minutes when they were so standing that Heera son of Hardev Gujar, Murli son of Sunder Brahmin, resident of Kamachh and one other person who had a lathi in his hand came. Whereas Heera had a Gandasi, Murli had a lathi in his hand. The moment Heera and Murli came there, they started abusing his brother, whereupon he and Virendra Singh told them not to indulge in non- sense. In the meantime, 6-7 persons who had lathies, Farsa, Gandasa and knife in their hand came there. On their arrival at the scene, Virendra Singh was taken to the street and first of all, Murli gave a lathi blow on his head and then, after stating that they would kill him, started beating him with lathi, knife, Gandasi and Farsa. Virendra Singh fell down upon which Murli and another person, whose name he did not know, started giving him lathi blows which hit him on his left eye and on other parts of the body. He too fell down on receipt of injuries. Badri Dhakad kept on refraining them. After he had fallen, all boarded a tractor, number of which he would not remember and went towards Kota road. The tractor was already standing in front of the shop of Latoor. While going, they were shouting `jai' but he would not know whose `jai' they were speaking of. He then saw Virendra and found that he had already died. Virendra had received injuries on his head and his face was disfigured. Virendra had been murdered and he (complainant) had been given beatings because of previous enmity. He had seen face of the persons in the light and could identify them. With a view to connect the appellants with the crime, the prosecution examined Dr. Vinod Kumar Dhingra (PW-10) who stated that on 15. 9. 1987 at 8. 15 a. m. he had conducted post mortem on the dead body of Virendra. The doctor found following 19 injuries on his dead body. He proved post mortem report (Ex. P. 9 ). " 1. Incised wound 2" x 1/2" bone deep over left parietal portion of skull. 2" above ear. trans. in direction. 2. Incised wound 1" x 1/2" x bone deep over left parietal portion of skull 1" above ear Trans. in direction. 3. Incised wound 1" x 1/2" x bone deep over occipital portion of skull, oblique in direction. Occipital bone fractured in time of injury. 4. Incised wound 1" x 1/2" x bone deep over frontal portion of skull at flair time (in middle) trans. in direction Bone in time of injury. 5. Incised wound 1/2" x 1/4" x bone deep over frontal portion of skull 1/2" below flair time. Trans. in direction. Bone # in time of injury. 6. Incised wound 1" x 1/2" x bone deep over left side of face over cheek. Trans. in direction. 7. Incised wound 3/4" x 1/2" x bone deep over right side of face over cheek. Trans. in direction. 8. Incised wound 3/4" x 1/2" x bone deep over 1/2" below lower lip. Trans. in direction. 9. Lacerated wound 2" x 1/2" x 1" over including right eye. Trans. in direction. 10. Lacerated wound 2" x 1 and 1/2" x 1" over including left eye. Trans. in direction. 11. Lacerated wound 1 and 1/2" x 1" x 3/4" over including whole nose. Linear in direction. 12. Lacerated wound 2" x 1/2" x 1/2" over including upper lip Trans. in direction. 13. Lacerated wound 2" x 1/2" x 1/2" over including lower lip Trans. in direction. 14. Incised wound 2" x 1" 1" over anterior side of lower half of neck. Trans. in direction. Trachea is cut thigh. thigh filled with clotted blood. 15. Incised wound 3/4" x 1/2" x 1/2" over left upper anterior portion of neck. Trans. in direction. 16. Incised wound 3/4" x 1/4" x 1/4" over middle of back side of neck. Trans. in direction. 17. Incised wound 3/4" x 1/4" x 1/4" over right upper side of ambilicus Trans. in direction. 18. Incised wound 3/4" x 1/4" x 1/4" over left upper side of umbilicus. Trans. in direction. 19. Incised wound 3/4" x 1/4" x 1/4" over left lower side of umbilicus. Trans. in direction. " In the opinion of the doctor, death was caused by asphyxia due to complete incised injury to trachea. The injuries, doctor further opined, were sufficient in the ordinary course of nature to cause death. The doctor also opined that the time that elapsed between the injuries and death was between 0-12 hours. It is pertinent to mention here that the doctor also stated that the eyes of the deceased were not in the socket and thus, it was not possible to identify the eyes nor it was possible to identify face and ears.
(3.) DR. Narayan Dixit who was examined as PW-7, proved ML Report of Virendra. On the basis of X-ray report, he stated that there was fracture of the thumb of left hand of Lokendra. Following nine injuries were found on the person of Lokendra: " 1. Swelling 5" x 5" with bruise 5" x 3/4" on the upper 1/3rd of left arm anteriorly. Blunt. 2. Bruise 4" x 3/4" on the middle of left laterally. Blunt. 3. Swelling 2" x 2" on the past aspect of elbow joint.- Blunt. 4. Abrasion 1 and 1/4" x 3/4" on the lower portion of left forearm paining-blunt. 5. Swelling 2" x 2" on the middle of left palm on the dorsal aspect-Blunt. 6. Abrasion 1/4" x 1/4" on the tip of left thumb.-Blunt. 7. Abrasion 3" x 1/4" on the right side of chest just near the mammary gland.-Blunt. 8. Haematoma 1" x 1" just above the left eye brows. Blunt. 9. Abrasion 1/4" x 1/4" on the lower portion of Rt. thigh laterally. Blunt. Prosecution besides examining injured eye witness Lokendra, the real brother of the deceased as PW-1, also examined other eye witnesses namely Badri (PW-2), Bajrang (PW-3) and Durga Lal (PW- 4 ). Lokendra (PW-1), it is the prosecution version, after identifying the accused persons in the court stated that he knew Murli, and Heera earlier. He also stated that he had enquired about the names of the accused and was told that their names were Mohan, Kanwar Lal and Chhitar. He also stated that Murli had given lathi blow on the head of Virendra and thereafter, all others started beating him. He also gave the tractor number which he had not given while lodging the FIR. He reiterated that he had identified the accused in the light. In cross examination, he stated that two false cases were pending against his brother in Kota. He denied for went of knowledge if case u/s 365 and 376 IPC was pending against his brother. He denied the suggestion that 5- 7 cases were also pending against his brother pertaining to Police Station Patan and he had come to stand as security for his brother at Bundi. He also denied for want of knowledge if any case u/s 107 or 110 Cr. P. C. was pending against him. When the accused party was beating his brother, then no other person could be seen there. Even those who were present at the beetal shop had ran away. Even Badri Dhakad had ran away from the spot. He admitted that he had not given the description of the accused other than Heera and Murli to the police as the accused were looking to be normal. He did not get recorded as to what they were wearing. Even the SHO had not asked him about the same. He stated that he had heard that Heera and Murli had lodged report against his brother which was of his entry into their house and which was with regard to supply of water. He did not know as to with what arms except Heera and Murli, accused were armed. But they had Gandasi, Farsi, knife and lathi. Badri examined as PW-2, Bajrang examined as PW-3 and Durga Lal examined as PW-4 also supported the prosecution case. ;