RAFIQ, J. - (1.) THE present criminal appeal has been preferred by three accused appellants against the judgment dated 9th October 2002 passed by Additional Sessions Judge (Fast Track) Sikar in Sessions Case No. 8/2001 thereby convicting accused Bihari Lal for offence under Section 302 IPC and accused Jaisa Ram and Sagarmal for offence under Section 302/34 IPC and sentencing each of them to undergo life imprisonment with a fine of Rs. 1,000/-, in default thereof to further undergo simple imprisonment of two months. Accused Bihari Lal and all the accused were also convicted for offence under Section 447 IPC and were sentenced to undergo rigorous imprisonment for three months with a fine of Rs. 100/-, in default thereof, were required to further undergo simple imprisonment of seven days. Additionally, accused Sagarmal was convicted under Section 325 IPC whereas accused Jaisa Ram and Bihari Lal were convicted for offence under Section 325/34 IPC and for this all of them were sentenced to undergo rigorous imprisonment to one year with fine of Rs. 200/- in default thereof, were required to further undergo simple imprisonment of 15 day.
(2.) A written report was submitted by one Thakru Ram S/o Pura Ram by Caste Jat resident of Charno Ki Dhani, village-Sutot Police Station Nechhwa, District Sikar. In the report it was alleged that the complainant were six brothers. While the complainant and his brother were residing in the "dhani", the wife of his younger brother was residing at the well situated in their agricultural field. When the complainant was harvesting the crop of `mothh and Choula', in the morning on 23rd October 2000, Tara Chand along with two other boys, whose names were not present, came there on a camel cart and tried to pass through their agricultural field. The complainant asked them not to do so as it was not a public way. Suddenly at that time Bihari, Sagarmal, Jaisa Ram, Chunnilal and Soni all armed with Lathi, Gandasi and Kulhari etc. came there. Accused Sagarmal inflicted a lathi blow on complainant Thakru Ram when he tried to save himself using his hands, accused Jaisa Ram caught his hands. On hearing hue and cry Ganesh Ram, the younger brother of the complainant, who was cultivating his adjoining field, came rushing there to save him. Accused Bihari inflicted a `jeli' blow on the head of Ganesh Ram presently he became unconscious and fell down. Tara Chand inflicted a lathi blow which the complainant received on his hand. The complainant also became unconscious and fell down on the ground. It was further stated that after complainant and his brother Ganesh Ram fell down on the ground having become unconscious which of the accused inflicted what injuries could not be known to both of them. After some time when the complainant regained consciousness, Chhunni Lal, Sukhdeva, and his brother Ganesh Ram were standing by his side. Ganesh Ram however regained consciousness and upon checking, it transpired that he had stopped breathing and had expired. The accused persons had come to the agricultural field of the complainant and attacked them. There was a dispute between the two parties about the right of way. The complainant has requested to the SHO that the action be taken against the accused for the murder of his brother. On the basis of the aforementioned written report, the First Information Report was registered against the accused and the investigation was commenced. Upon completion of investigation, charge sheet against the accused was filed. The first charge sheet against the accused Bihari Lal and Tara Chand was filed in the Court of Judicial Magistrate, Ist Class, Lakshmangarh who committed the same to the Sessions Court, Sikar on 17. 7. 2001 for trial. Second charge sheet was filed against the accused Jaisa Ram on 7. 2. 2001 which also came to be made over to the Court of Sessions for trial. Third charge sheet against the accused Sagarmal was filed on 3. 4. 2001 which was also sent for trial to the Court of Sessions. The learned Sessions Judge, Sikar vide his order dated 25. 1. 2001 ordered for combining the trial of the first and second charge sheet and thereafter further passed an order on 20. 3. 2002 for consolidation of third charge sheet with the earlier two and heard all of them together. But by the same order, he directed that the proceedings against the accused Tara Chand would be dropped and further directed the police that offence under Sections 302, 325 and 323 IPC would be dropped from is Court and further directed the police to file charge sheet against him in the Juvenile Court in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act. That while charges for the offences under Sections 447, 452/34, 323/34 and 325/34 IPC were framed against all the accused, an independent charge under Section 302 IPC was framed against the accused Bihari Lal and charge under Section 302/34 IPC was framed against the accused Jaisa Ram and Sagarmal. During the course of trial, the prosecution examined 17 witnesses and exhibited as many as 28 documents. On the other hand, the defence examined 10 witnesses in support of its case. The learned trial Court on the conclusion of the trial convicted and sentenced and aforesaid three accused as indicated above. Feeling aggrieved by the judgment of the learned trial Court the accused appellants preferred this appeal. We have heard the arguments advanced by Shri Anoop Dhand learned counsel for the accused appellants and Shri R. P. Kuldeep and Shri A. K. Sharma the learned Public Prosecutor for the State and perused the record. Shri Anoop Dhand learned counsel for the accused appellants has argued that there is total lack of cogent and reliable evidence on record to connect the appellants with the alleged crime and that the learned trial Court has based its findings merely on surmises and conjectures. The FIR lacks in the basic details in as much as time of the incident has not been mentioned therein. Four different charge sheets have been filed which also cast serious doubt about veracity of the prosecution story. While the police had visited the place of the incident on 23. 10. 2000 and had taken dead body of the deceased, yet the statements of the alleged eye-witnesses were recorded by it on 25. 10. 2000 which create doubt about presence of the witnesses on the site of incident. No explanation has been given for this delay in recording of the statements. The learned trial Court has erred in convicting the accused appellants merely on the basis of testimony of three eye witnesses namely Thakru Ram, Chhoti Devi and Kanwari Devi who are all relatives of the deceased. No independent eye-witnesses of the neighbouring fields have been produced by the prosecution. Even though Chimna Ram, Gopal Lal, Mal Singh, Mohanlal, Sukha Ram and Pokar Mal were named as eye- witnesses yet they have not been produced before the trial Court and an adverse inference should be drawn against the prosecution for withholding all these witnesses.
(3.) SHRI Anoop Dhand argued that Ganpat Ram and Narayan Singh were the motbir witnesses to the site plan who could be the best witnesses to depose the truth about the place of incident yet they have not been placed before the trial Court. Their non- production creates a serious doubt about the correctness of prosecution version. He argued that the alleged eye-witnesses have substantially improved upon their original version inasmuch as in their first statement recorded under Section 161 Cr. P. C. , they have not named the accused appellants Sagarmal and Jaisa Ram. They have however, in the second statement (Titmba Bayan) implicated these two accused also. It has been argued that no external injury was shown on the person of deceased while preparing Panchnama, although the post mortem report has indicated one bruise on his body. Alternatively SHRI Anoop Dhand also argued that even as per the prosecution the quarrel of the accused started with the complainant Thakru Ram and deceased Ganesh Ram came there subsequently to intervene and in the process received fatal injury. The accused had no intention or motive of causing his death. No such intention therefore, can be attributed to the accused appellant. This is further established from the statement of PW. 5 Chhoti Devi wherein she has stated the Jeli was used by the Accused from the reverse side. He has further argued that while PW. 6 Sukhdeva Ram has claimed himself to be an eye witness but in his own statement he stated that he along with Chhunni Lal and wife of Ganesh Ram arrived at the place of incident after occurrence. None of them were eye witnesses of the alleged incident. Shri Anoop Dhand learned counsel for the appellant has lastly argued that the conduct of all eye witnesses examined in the present case was quite unnatural as they have not given any explanation as to why they did not disclose the correct version to the police at the first available time and why they kept mum for two days. On the other hand, Shri A. K. Sharma and Shri R. P. Kuldeep learned Public Prosecutors on behalf of the State argued that here was overhelming evidence on record to prove the charges against the accused appellants beyond reasonable doubt. It has been argued that the accused appellants were aggressors and they attacked the deceased and his brother while they were working in a agricultural field. It has been argued that the accused appellants attacked deceased Ganesh Ram with a common intention of causing his death and in furtherance thereof accused Bihari Lal caused fatal injury to deceased Ganesh Ram and all of them caused other injuries to injured Thakru Ram. ;