SHARMA, J. - (1.) THE two appellants, along with five others were placed on trial before the learned Special Judge (Communal Riots Cases) & Additional Sessions Judge Tonk in Sessions Case No. 4/1998. Learned Judge vide judgment dated May 25, 1999 convicted the appellants Bajranga and Balu for the offence under Section 302/34 IPC and sentenced each of them to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer two months rigorous imprisonment.
(2.) THE prosecution case as unfolded during trial is that on February 17, 1997 informant Bhoori (PW. 2) submitted a written report (Ex. P. 3) with the Police Station Sadar Tonk stating therein that at 9. 00 AM while she along with her husband Ram Niwas (since deceased) were proceeding towards their field on Moped, the accused Balu, Bajranga, Bhura, Babu and Ramu obstructed their part near Hotel of Pushkar. Balu inflicted knife blow on the chest of her husband as a result of which he fell down and then all the accused then caused injuries on his back. Her husband died on the spot. Police Station Sadar Tonk registered a case under Sections 147, 148, 149 and 302 IPC and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Communal Riots Cases) & Additional Sessions Judge Tonk. Charges under Sections 148, 302 and 323/149 IPC were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 21 witnesses. In the explanation under Section 313 cr. P. C. , the accused claimed innocence. Three witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants Bajranga and Balu as indicated herein above, but acquitted co-accused Ram Lal, Babu, Bhanwar Lal, Gopi Lal and Sukha. We have heard the contention of learned counsel for the appellants and learned Public Prosecutor and gone through the entire evidence on record. Before we deal with the arguments raised, it will be convenient to take note of the evidence which has been adduced by the prosecution. As per postmortem report (Ex. P. 1) deceased Ram Niwas sustained following ante mortem injuries:- 1. Punctured or stab wound Obliquely placed with lower end facing (torn) clean cut edges with margins invested both margins parallel to each (torn) other with sharp angles of the two extremities. The direction of wound is gong downwards & inwards. Size of the wound is 3/4" x 1/4" in its middle 1/3rd & 1/8" in its both upper & lower 1/3rd extremities. The wound is tapered at both extremities to form a sharp angle x 3" internal injuries caused by the wound in the depth are mentioned in the column of internal examination of chest. Rt. upper chest region, 2" rt. lateral to mid line in 2nd intercostal space. Incised wound Horizontally placed, directing from inner to outer side. Size of the wound is 1/2" x 1/10th x 1" (direction of depth is from (torn) above downwards & outwards piercing sub cut tissue & muscles. Lt. upper back region 5" left lateral to mid line in infra scapular region. 3. Incised wound Horizontally placed, directing from, outer to inner side. Size of the wound is 3/4" x 1/8" x 1 1/2" (direction of depth is from (torn) above downwards &medially towards mid line & piercing sub cutaneous tissue & muscles. Middle 1/3rd of back region on the Lt. side 6" below nap of the neck, inner end is approaching mid line. 4. Incised wound Obliquely placed, directing from above downwards. Size of the wound is 3/4" x 1/8" x 1" (direction of depth is from above downwards & outwards piercing cutaneous tissue & muscles. Middle 1/3rd of back region on the rt. side, 1" rt. lateral to mid line, medial to inferior scapular region. 5. Abrasion 3" x 3/4" over back of upper 1/3rd Lt. leg. 6. Abrasions (four in no.) Size of each varying from 1/2" to 1" x 1/4" to 1/2" covering area of 3" x 2" over back of lower 1/3 of Lt. leg. The cause of death in the opinion of Dr. V. K. Nigam (PW. 1), who performed autopsy on the dead body, was due to hemorrhage shock due to injury to vital organs lung leading to haemo- pnemothorax, excessive bleeding. The informant Bhuri (PW. 2) vide injury report (Ex. P. 2) also sustained followed injuries:- "1. Abrasion 3/4" x 1/2" medial part of upper 1/3rd of rt. Thigh 2. C/o pain lower back region but no visible injury is seen. 3. C/o pain Lt. lower thigh region but no visible injury is seen. " The prosecution case is founded on the testimony of informant Bhoori (PW. 2), Gopal (PW. 4), Budhi Prakash (PW. 5), Pushkar (PW. 6) and Jagdish (PW. 7 ). Informant Bhoori (PW. 2) deposed that at 9-9. 30 AM while she was going on Vikky with her husband towards the field, at Solangpura near Hotel of Puskar they were stopped by Bajranga, Balya, Bhoorya, Babu, Ramu, Gopi and Sukha. Bhoorya was having Khanta, whereas Bajranga, Balu, Babu, Ramu were having knives, Gopi caught hold of Ram Niwas and Bajranga stabbed knife blow on his chest. When Ram Niwas tried to run away Balya caused knife blow on his back. Bhoorya caused Khanta blow, Babu and Rama caused knife blows. Sukha threw stone on testicles of Ram Niwas. When she tried to save Ram Niwas she was also beaten up. Pushkar, Jagdish, Gopal and Budhi Prakash had seen the incident. In her cross examination she however admitted that in her police statement she stated that Bajranga stabbed knife blow on the chest of Ram Niwas and she has not named other accused to have caused the injury on the chest of Ram Niwas.
(3.) GOPAL (PW. 4) stated that at 9, 9. 30 AM he was at his shop at Solanpura circle. At the tea stall Balu, Sukha and Bhura were taking tea and Gopi, Bajranaga also reached there. At that time Ram Niwas and his wife were going on Vikky towards Vajirpura. Balu called Ram Niwas and got him halted, Balu, Bhura, Sukha, Gopi, Bajranga & Babu thereafter surrounded him. Gopi then caught hold of Ram Niwas and Bajranga stabbed knife blow on his chest. When Ram Niwas tried to run Balu caused knife blow on his back. Ramu threw stones on him and Babu & Bhura gave legs and fists blows. Babu & Bhura also gave beating to wife of Ram Niwas. The incident had been witnessed by Buddhi Prakash also. Thereafter he, his father Jagdish and Meri Lal removed Ram Niwas to Hospital through camel cart. In cross examination he stated that he is running the shop of Grocery near the place of incident. He denied about the accident of vehicles of Ram Niwas and Balu and they quarreled with each other. He admitted that he did not try to intervene. He admitted that revenue dispute is pending between Gopi and Prahlad. He denied that Gopi and Sukha were not present at the time of incident. Buddhi Prakash (PW. 5) stated that on the day of incident at 9, 9. 30 AM Ram Niwas was killed by Bajranga, Bhura, Balu, Sukha Gopi and Ramu. Balu and Bajranga were having knives, Bhura was having khanta and others were without any weapon. Bajranga gave knife blow on the chest of Ram Niwas, Bhura, Balu and Bajranga gave blows on his back, Bhura gave khanta blow. In cross examination he admitted that he was coming from Tonk through his Vikky and stayed at the shop of Rampal for purchasing cigarette. He saw the incident from a distance of 15-20 ft. He denied about the accident of Vikkys of Ram Niwas and Balu. He stated that first blow was caused by Bajranga and when Ram Niwas tried to flee Balu and Bajranga gave knife blows. Pushkar (PW. 6) stated that he is running tea-stall at Solangpura crossing. He stated that Balu, Bhura, Sukha were taking tea at his shop and after some time Babu, Bajranga and Gopi joined them. While Ram Niwas along with his wife was going on Vikky he was called by Balu and all these persons surrounded him. Balu gave knife blow on the back of RAm Niwas, when Ram Niwas made attempt to run Gopi caught hold of him and Bajranga gave knife blow on his chest. Ramlal pick up khanta and all the accused gave beating to Ram Niwas. The incident had been witnessed by him and Jagdish, Gopal and Buddhi Prakash. In his cross examination he admitted that as knife blows were stabbed by accused therefore he die not try to save Ram Niwas. ;