SHARMA, J. - (1.) RAJU @ Raj Kumar and Khuma Ram, the appellants in these two appeals, and eleven others were found involved in the incident that occurred on November 25, 1998. Since appellant Khuma Ram absconded, appellant RAJU and others were tried in Sessions Case No. 34/1999 before the learned Additional Sessions Judge No. 2, Sikar. After appellant Khuma Ram surrendered, he was also tried in Sessions Case No. 33/2002 (34/1999 ). Learned trial Judge vide judgments dated January 04, 2001 and March 15, 2004 convicted and sentenced the appellants RAJU @ Raj Kumar and Khuma Ram as under:- RAJU @ Rajkumar: u/s. 302 IPC: To suffer imprisonment for life and fine Rs. 1,000/-, in default to further suffer one month rigorous imprisonment. u/s. 323/149 IPC: Fine of Rs. 1000/- in default to suffer one month rigorous imprisonment. u/s. 147 IPC: Fine of Rs. 1000/- in default to suffer one month rigorous imprisonment. u/s. 3/25 Arms Act: To suffer rigorous imprisonment for one year. u/s. 3/27 Arms Act: To suffer rigorous imprisonment for one year. Khuma Ram: u/s. 302 IPC: To suffer imprisonment for life and fine Rs. 1000, in default to further suffer one month rigorous imprisonment. u/s. 323/149 IPC: Fine of Rs. 1000/- in default to suffer one month rigorous imprisonment. u/s. 147 IPC: Fine of Rs. 1,000/- in default to suffer one month rigorous imprisonment. u/s. 3/25 Arms Act: To suffer rigorous imprisonment for one year and fine Rs. 500/- in default to further suffer fifteen days imprisonment. u/s. 3/27 Arms Act: To suffer rigorous imprisonment for one year and fine Rs. 500/- in default to further suffer fifteen days imprisonment. Sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on November 25, 1998 appellants Rajkumar and Khuma Ram along with co-accused persons came in two-three jeeps at the house of the complainant party and started hurling stones. Pooran Mal, Mohan Lal and others came to save them. Then Raj Kumar entered in the house of Shanker Lal (father of Raj Kumar) and brought a gun and opened two fires, one of which hit Pooran Mal. Khuma Ram then snatched the gun from Raj Kumar and opened fire which hit Mohan Lal. The injured persons were removed to the hospital. When SHO Laxmangarh reached to the spot; written report (Ex. P. 1) was handed over to him by Chothu Ram and Shyam Lal. Case under Sections 147, 148, 448, 307, 323 and 336 IPC was registered. After Puran Mal and Mohan Lal succumbed to injuries Section 302 was added. On completion of investigation charge sheet was filed against Raj Kumar and co- accused persons. In due course the case came up for trial. In both the trials against the appellants charges under Sections 302, 302/149, 323/149, 448, 147 IPC and 3/25 and 3/27 Arms Act were framed, who denied the charges and claimed trial. Eye witnesses viz. Chothu Ram, Bheru Ram Munidhar, Bidami, Shyam Lal, Sanwar Mal, Raghunath and Rameshwar Lal were examined by the prosecution. In the explanation under Sec. 313 Cr. P. C, the appellants claimed innocence. No witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have heard the learned counsel for the parties and with their assistance scrutinised the material on record. Death of Puran Mal and Mohan Lal was indisputably homicidal and caused by gun shot injuries. Post Mortem Report (Ex. P. 43) reveals following antemortem injuries on the dead body of Puran Mal:- There are multiple lacerated wounds of even size of rounded shape having their inverted margins & slightly scortched skin around these wounds. The size of all wounds is approximately 1-2 cm diameter and uneven depth covering area on 1t. side of chest, infront of neck & Lt. upper shoulder region. In the opinion of Dr. T. S. Choudhary (PW. 15), who performed autopsy on the dead body, the cause of death was shock due to excessive hemorrhage from the vital organs. Deceased Mohan Lal as per post mortem report (Ex. P. 44) received following antemortem injuries:- There are multiple lacerated wounds of even size of rounded shape having inverted margins & surrounded by slight scortched skin on infront of chest more on Lt. side, Lt. side of upper abdomen and infront of left shoulder region. The size of the wounds is approximately 1/2 - 3/4 cm in diameter and uneven depth. In the opinion of Autopsy Surgeon Dr. T. S. Choudhary (PW. 15) the cause of death was shock due to excessive hemorrhage from the vital organs. Injured Chothu Ram, Murlidhar, Rameshwar, Bheru Ram, Bidami and Shyam Lal also sustained injuries in the form of contusions and lacerated wounds. It will be appropriate at this juncture to consider the injuries sustained by the accused party. Appellant Raju @ Rajkumar vide injury report (Ex. D. 13) received following injuries:- 1. Contusion 5 cm x 5 cm fore head 2. Contusion 2 cm x 1 cm Rt. index finger 3. Abrasion. 5cm x. 5 cm Rt. middle finger 4. Contusion 2 cm x 2 cm Rt. shoulder 5. Contusion 2 cm x 2 cm Neck (Lt.) Injuries received by accused Hari Parsad vide injury report (Ex. D. 14) are as under:- 1. Contusion 3 cm x 3 cm Rt. shoulder 2. Contusion 3 cm x 3 cm Lt. shoulder 3. Laceration 2 cm x. 5cm x. 5 cm scalp vertex Mishri Lal @ Parmeshwar also received injuries vide injury report (Ex. D. 15) thus:- 1. Abrasion 1 cm x 1 cm Rt. knee Antr. 2. Abrasion 1. 5 cm x 1. 5 cm Rt. leg Antr. upper part 3. Laceration 1. 5 cm x. 3cm x. 3 cm Rt. eye brow Dwarka Prasad vide injury report Ex. D. 16 received one contusion 2 cm x 2 cm at Rt. thigh Lat. Madan Lal vide injury report Ex. D. 17 received one laceration 3'' x 1/6'' x 1/6'' Scalp Rt. Parietal area. Babu lal vide injury report Ex. D. 18 received one laceration 3/4'' x 1/6'' x 1/6'' left parietal area scalp. The gun (12 Bore SBBL) allegedly used in commission of offence got recovered at the instance of appellant Raj Kumar vide recovery memo (Ex. P. 27 ). A look at FSL report (Ex. P. 67) goes to show that the said gun had been fired.
(3.) LEARNED counsel for the appellants canvassed that none of the so called eight eye witnesses, produced by the prosecution, have made true version. The have conspired to implicate the appellants falsely. Every one of them has freely indulged in making material improvements upon earlier version. There are intra contradictions on material aspects in the statements of eye witnesses. Version set out by them suffers from glaring improbabilities. None of them should have been relied upon by the learned trial Judge. Ocular testimony stands falsified by scientifically acclaimed principles of ballistic science. The eye witnesses have willfully changed the place of occurrence. In fact the complainant party was aggressor and the accused party acted in self defence. No one from the neighbourhood was examined by the prosecution and only interested witnesses and partisan witnesses were produced. The trial judge failed to appreciate the inter play of issue estopple and the same resulted in gross failure of justice. Neither the genesis nor motive has been spelt out. Appellants had no motive to commit murder of Mohan and Puran Mal. The trial Judge failed to consider the effect of mis-joinder of charges. No recovery of gun, cartridge or empty was made from the appellant Khuma Ram. The investigation was not fair and it was partisan. In fact it was a case of single fire and the medical witness admits this possibility. The appellants have been implicated because of political affiliation. Per contra, learned Public Prosecutor and learned counsel for the complainant supported the impugned judgments and urged that the appellants have been rightly convicted and sentenced. According to learned counsel for the complainant the act of appellants was covered in clause 4thly of Section 300 IPC since both the appellants knew that their act was imminently dangerous that it might in all probability, cause death or such bodily injury as could likely to cause death. Appellants Khuma Ram and Raj Kumar came with the intention to commit murder. After Khuma Ram said `kill them', all the accused started given beating the complainant party, then Raj Kumar brought the gun and opened fire that killed Puran Mal. Khuma Ram then snatched the gun and fired a shot that killed Mohan Lal. Reliance is placed on State of MP vs. Ram Prasad (AIR 1968 SC 881 ). In Kanhaiya Lal vs. State of Rajasthan (AIR 1989 SC 1515) on which reliance is placed by learned counsel for the complainant the Hon'ble Supreme Court observed that the injuries received by accused were of simple nature as against those suffered by deceased persons. The accused not permitted a witness to take the victim to hospital even after incident. The accused were aggressors and were not entitled to right of private defence. ;