SHARMA, J. - (1.) THIS appeal impugns the judgment dated June 7, 2003 rendered by learned Additional Sessions Judge No. 1 (Fast Track) Dholpur in Sessions Case No. 67/2002 (Consolidated Sessions Case No. 68/2002), whereby the appellants (herein after described as `accused') were convicted and sentenced as under:- Narayan: U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous Imprisonment for one month. Laxman & Roshan: U/s. 323 IPC: Each to suffer Rigorous Imprisonment for three months.
(2.) AS per the prosecution story, the SHO Police Station Diholi recorded parcha bayan of Ramdas (Pw. 1), wherein he stated that today in the morning at 7. 30 AM while he was pouring fertilizer with Ramnath, Gomti and Dhani Ram the neighbouring field holder Narayan Mallah dismantled the wall of the field, which was objected by Dhani Ram. Thereupon Narayan started abusing and asked Roshan to call persons from the house. Roshan called Laxman, Tarayan, Nihal Singh, Bhagwan Singh, Vijay Singh, Rameshwar and Mawasia. Bhagwan Singh and Roshan were having gun in their hands. Roshan gave the gun to Narayan. Tarayan was armed with Katta (country made pistol) and others were having lathis. Narayan fired gunshot at Dhaniram, Bhagwan Singh made another fire and Tarayan made fire by Katta (country made pistol) which pallets hit at Ramnath. Thereafter the accused person ran away. The incident was witnessed by Dhani Ram and Gulab Singh. Dhani Ram, Ramnath and Gomti were removed to the hospital, in the way Dhani Ram died. Case under sections 302, 307, 147, 148 and 149 IPC was registered and after usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Fast Track Dholpur, Charges under Sections 147, 148, 323, 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 17 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the accused as indicated herein above. Before proceeding further we deem it appropriate to refer to the post mortem report (Ex. P-17), according to which deceased Dhani Ram sustained following injuries:- ``1. Punctured wound 2cm x 2cm, Inverted margins in the (L) Iliac fossa 31cm from umblicus; (2) Punctured wound 2cm x 2cm with inverted margins in the (L) lumber region 49cm from the mid line of the abdomen. (3) Punctured wound 2 in number with inverted margins over the (L) posterior superior Iliac spine. (4) Punctured wound 14cm x 12cm over the middle of the (L) back 1" lateral to spine with blackening around the wound present. (5) Abrasion 1" x 1/4 over the lower 1/3 anterior surface (L) leg. (6) Abrasion 1/2 x 1/4 over the anterior space (L) ankle joint. '' The cause of death as per post mortem report (Ex. P-17) was gunshot injuries to the vital organs of the body, haemorrhage and shock. We have heard the submissions of learned counsel for the appellants as well as learned Public Prosecutor and carefully weighed the material on record. It appears that as many as 9 accused were tried by the learned trial Judge, out of which Rameshwar, Nihal Singh, Mawasia, Bhagwan Singh, Vijay Singh and Tarayan were given benefit of doubt. The prosecution story qua the said accused was not believed and they stood acquitted. On a careful appraisal of the prosecution evidence we find that the star witness of the prosecution changed their statements at every stage. Informant Ramdas (Pw. 1) deposed in the Trial Court on October 22, 1994 that on being asked by Narayan, Roshan had called Laxman, Bhagwan Singh, Tarayan, Vijay Singh, Rameshwar, Nihal Singh and Mawasia. Roshan, then gave his gun to Narayan. Bhagwan Singh and Tara were armed with firearms while others had lathis. After surrounding the informant and his family members, Roshan and Laxman gave lathi blows to Dhani Ram and when Gomti and Ramnath intervened they were also assaulted with lathis by Vijay Singh, Roshan and Ramesh. Thereafter Narayan, Bhagwan Singh and Tara opened fire and injured Dhani Ram and Ramnath. When Ram Das (PW. 1) was recalled by the learned Trial Court on February 7, 2002, he took `u turn' and deposed thus:-
(3.) ESA fnukad 22-10-94 dks Hkh c;ku nsus vk;k Fkka ESAus ml fnu uks vknfe;ksa dk eksds ij vkuk o Hkxoku flag ij cunwd o rjk;u ij dv~vk gksuk o mu lhkh ds }kjk gESA ?ksjuk xyr fy[kk;k Fkka mlESA esus jes'k o fot;flag }kjk ykfb;ksa ls ekjuk] ihns ls /kuhjke ds cunwd Hkxoku flag }kjk ekjuk] nwljk Qk;j dv~vk }kjk /kuhjke ij rkjk }kjk fd;k tkuk vksj mldk jkeukfk ds yxuk ESAus xyr fy[kk;k Fkka** Goma (Pw. 3) appears to have been examined by the police thrice and she in her police statements named nine accused persons, but in her deposition at the trial she disowned her police statements and made attempt to implicate only Narayan, Laxman and Roshan. Ramnath (Pw. 4) also stated in the Trial Court on August 24, 1995, that Bhagwan Singh, Roshan, Laxman, Narena, Tara, Nehna, Ramesh, Vijay Singh and Mawasia came and Narena, Bhagwan Singh and Tarayan opened fire at Dhani Ram, but when he was recalled on December 5, 2002 and confronted with his earlier deposition made at the trial he stated thus:- ;