Sharma, J. - (1.) THE two appellants along with twenty others, were the accused on the file of learned Special Judge (Dacoity Affected Area) and Additional Sessions Judge, Karauli in Sessions Case No. 63/1994. Learned Judge vide judgment dated July 31, 1997 while acquitting 20 co-accused, convicted and sentenced the appellants as under:- Ibrahim @ Panna : U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for two months. Gaffar : U/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for two months.
(2.) THE prosecution case as unfolded during trial is that the informant Rajaulla submitted a written report (Ex. P. 1) at Police Station Karauli on June 2, 1994 against twenty two accused persons wherein the allegation against the appellant Panna was that he opened fire with single barrel topidar gun on the abdomen of Nanne Khan (now deceased ). Another fire was shot by accused Chhuttan that hit on the front side of Nanne Khan who died at the spot. Appellant Gaffar, a peon in the court, exhorted the accused to kill the members of the complainant party. In the incident Habibulla, Papil and Yakinuddin also sustained injuries. Police Station Karauli on the basis of said report registered a case under sections 147, 148, 302 and 307 IPC and investigation commenced. After usual investigation two charge sheets were filed and in due course the case came up for trial before the learned trial Judge, who framed charges against the accused persons. THE accused denied charges and claimed trial. THE prosecution in support of its case examined as many as 27 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence. Seven witnesses were examined in defence. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. Before adverting to the submissions advanced before us, it will be appropriate to consider the nature of injuries caused to the deceased. As per post mortem report (Ex. P. 12) deceased Nanne Khan sustained following ante mortem injuries:- " 1. Abrasion 3cm x 2cm on Rt. palm dorsally on hand of Rt. thumb. 2. Wound of entry Size 3/4cm x 1/2cm one shaped tattooing inverted margin with collor of abrasion with clotted blood directed anterior posteriorly medially no exit would upper 1/3 of right thigh ante. Medial aspect at 15-1/2 below from Rt. ant. sup. ilac spine of 1-1/2" lat. To scrotum. Wound of entry size 3/4cm x x-1/2cm oval shaped inner margin with collor of Abrasion with clotted blood. Tattooing and directed obliquely anterior posteriorly towards left to right side at 10cm below sternum notch at mid of over nipple of chest. The cause of death was haemorrhagic shock as a result of firearm injury. The injuries received by three witnesses viz. Papil (PW. 17), Yakinuddin (PW. 9) and Habibulla (PW. 15) are as under:- Papil (PW. 17) vide injury report (Ex. P. 13) sustained Wound of entry size 3/4cm x 1/2cm x skin muscle deep oval shaped inverted margin with collor of Abrasion Tattooing no colour found inside wound at time of examination directed downwards in wound medially no exist wound clotted blood with corresponding tear mark at shirt and pajama malted with blood. Yakinuddin (PW. 9) vide injury report (Ex. P. 14) sustained wound of entry oval shaped size 3/4cm x 1/2cm x skin muscle deep collor of Abrasion inverted margin. Tattooing, oozing of blood directed downward in wound of posteriorly with no exit wound. And Habibulla (PW. 15) vide injury report (Ex. P. 15) sustained wound of entry oval shaped inverted margin size 3/4cm x 1/2cm x skin muscle deep with collor of Abrasion with clotted blood. Tattooing directed downward in wound medially with no exit wound. No clear inside wound at time of examination with oozing of blood. Learned counsel for the appellants criticised the impugned judgment from various angles and contended as under :- (i) As many as six persons had been alleged to have used fire arms of different nature. Panna is said to have used single barrel topidar gun, Mushtaq with 12 bore katta, Bhagal with 12 bore gun, Prasad with 303 Katta, Chhuttan with double barrel gun and Munna single barrel topidar gun. Deceased Nanne received three injuries, out of which two were from fire arms. Injury No. 3 was the only injury which was described as the injury dangerous to life. So far as other three injured persons Papil, Yakinuddin and Habibulla are concerned none of them had pointed out the appellant Panna to be author of the fire arm injury. There is no dying declaration of the deceased. Thus no convincing evidence is available on record to specific overt act of the appellant Panna. (ii) Appellant Gaffar has been falsely implicated since he is a government servant and it could not be established convincingly that Gaffar exhorted the accused to kill the persons of complainant party. (iii) Learned trial court committed error in giving preference to Jabbar (PW. 14) and Rajaulla (PW. 24) and testimony of witnesses Papil (PW. 17), Yakinuddin (PW. 9) and Habibulla (PW. 15) has not been properly appreciated. Testimony of Jabbar and Rajaulla does not inspire confidence. Having analysed the testimony of injured eye witnesses viz. Yakinuddin (PW. 9), Habibulla (PW. 15) and Papil (PW. 17), we notice that Yakinuddin and Papil did not support the prosecution case and they were declared hostile. Habibulla also deposed that after sustaining gun shot injury in the incident, he became unconscious therefore he could not see any assailant.
(3.) JABBAR (PW. 14) and informant Rajaulla (PW. 4) implicated appellants Panna and Gaffar. Both these witnesses stated that Panna inflicted gun shot injury on the chest of Nanne Khan and Gaffar exhorted accused persons to kill the complainant party. In the cross examination Rajaulla however stated that Panna opened fire without aiming anybody and when Panna opened fire his face was at the opposite direction. Appellant Gaffar raised plea of alibi and produced defence witnesses Suresh Chand Garg (DW. 6) and K. C. Verma (DW. 7) to establish that at the time of incident he was not present at the scene of occurrence. It is thus evident that even though injured eye witnesses did not implicate the appellants, informant Rajaulla and Jabbar levelled allegations against them and on the basis of the evidence of these two witnesses learned trial judge convicted and sentenced them. The evidence of Rajaulla and Jabbar was not found trustworthy by the trial judge qua other 20 accused persons and they were given benefit of doubt. ;