Kanwaljit Singh Ahluwalia, J. - (1.) OM Niwas @ Niwas his brother Jagpal Singh and son Harbeer Singh have been tried by the Court of Additional Sessions Judge (Fast Track) No. 1, Jhunjhunu for having caused murder of Smt. Rama Devi and Antar Singh on the intervening night of 6th & 7th February, 2007 to be precise, between 12.00 AM to 1.00 AM in the house of deceased and solitary eyewitness Babita (P.W.11). In the present case, Babita (P.W.11) had suffered injuries and her presence at the place of occurrence is stamped. Babita (P.W.11) during investigation had named present appellants Om Niwas @ Niwas, Jagpal Singh, Harbeer Singh and Sanjay Pal, Sheopal, Radhey Shyam and Rajpal as accused. Sanjay Pal was held to be delinquent juvenile and his trial was assigned to the Court of concerned Juvenile Justice Board. Radhey Shyam, Sheopal and Rajpal were not sent for trial as they were found innocent by the investigating officer.
(2.) THE Court of Additional Sessions Judge (Fast Track) No. 1, Jhunjhunu vide impugned judgment dated 28.5.2011 held Om Niwas and Jagpal Singh both substantively liable for offence of murder punishable under Section 302 IPC, whereas Harbeer Singh for offence of murder was convicted with the aid of Section 34 IPC. The trial court further held all the three appellants guilty of offence under Section 459 IPC. Jagpal Singh was substantively held liable for offence under Section 326 IPC and other two accused Om Niwas @ Niwas and Harbeer Singh guilty of offence under Section 326 read with Section 34 IPC. All the three appellants were convicted for offence under Section 307 read with Section 34 IPC. Having held the appellants guilty of the above said offences, trial court vide a separate order of even date sentenced the appellants as under: - - "Accused, Om Niwas @ Niwas: "U/s. 459 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.326/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.307/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.302 IPC: Life imprisonment which shall be enforced till the last breath of life and to pay a fine of Rs. 50,000/ -. Accused, Jagpal Singh: "U/s. 459 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.326 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.307/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.302 IPC: Life imprisonment which shall be enforced till the last breath of life and to pay a fine of Rs. 50,000/ -. Accused, Harbeer Singh: "U/s. 459 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.326/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.307/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/ - and in default thereof to undergo one year simple imprisonment. U/s.302/34 IPC: Life imprisonment and to pay a fine of Rs. 50,000/ -." Criminal proceedings in the present case were set into motion on the basis of statement (Ex. P.21) of Kum. Babita (P.W.11) recorded by the Sub -Inspector Sanwar Mal (P.W.8). Statement (Ex. P.21) of Babita (P.W.11) led to registration of FIR (Ex. P.69) bearing FIR No. 17/2007 registered at Police Station Mandawa, District Jhunjhunu. Statement (Ex. P.21) of Babita (P.W.11) when translated into English reads as under: - - "Statement of Kum. Babita D/o. Banwari Lal, caste Jat, aged 15 years, r/o. Bajisar, P.S. Mandawa, at present admitted at B.D.K. Hospital, Jhunjhunu dated 7.2.2007. Stated that I am a student of 8th class in school at our village Bajisar. Our house is also in the village. Tonight between 12.00 to 1.00 O'clock, we all the family members were sleeping. My grandmother Rama Devi and my younger brother Antar were only present in the house. At that time in the night, Niwas s/o Harlal and his two sons whose names are not known to me, but they were elder in age and Jaipal brother of Niwas and one son of Jaipal whose name is not known to me and is a student, after scaling boundary wall of the house came inside with a common intention armed with sword and lathi. Immediately on arrival they all started giving beating to us. Son of Niwas and Jaipal caused injuries to me on face, left hand. All were giving blows in quick succession. They were beating all the three family members present in the house. Due to beating given, my grandmother Rama Devi and my younger brother Antar received many injuries and they died at the spot. We raised noise. They ran away the spot. People came running. House of Niwas, Jaipal etc. is at some distance from our house. Twenty days ago they had also given beating to us. The case pertaining to that incident is pending. Due to that grudge, Niwas, Jaipal and their three sons came with common intention armed with weapons and having trespassed into our house, had caused murderous assault. They gave beating to us. Note: Since Babita is having injuries on both hands, her thumb impression was obtained. RTI Babita. Sd/ -P.S. Kotwali, JhunjhunuCamp BDK Hospital, 7.2.07."
(3.) DR . N.S. Naruka (P.W.10) on 7.2.2007 was posted as Medical Jurist at BDK Hospital, Jhunjhunu. He alongwith Dr. Pratap Singh Sahu and Dr. Subhash Chandra Chauhan had conducted autopsy on the dead body of Rama Devi on 7.2.2007 at 9:15 AM. In the post -mortem report (Ex. P.22), the doctors have noted the following injuries on the person of Rama Devi: - - "1. Rigor mortis was present, postmortem staining present on back of chest. 2. Incised wound 8x6x5 cm on the occipital region at level of middle of ear starting from 4 cm of left ear towards right ear. On further dissection, wound shows the brain matter lacerated and small dark coloured blood. Occipital bone is fractured and extending upto right ear. The margins of wound are clean cut and straight. All tissues are cleanly cut. 3. Incised wound 8x5x4 1/2 cm on right occipito -temporal region upto middle between right ear and eye dividing the ear in two portions. The margins are clean cut. Wound shows the lacerated brain matter and small dark coloured blood. The underlining bone fractured.";