SHARMA, J. - (1.) RAJU, Heera and Mool Chand, the appellants herein along with two other co-accused, were indicted before the learned Additional Sessions Judge (Fast Track) No. 1. Bundi in Sessions Case No. 69/2001. Learned Judge vide Judgment August 13, 2001, while acquitting co-accused Mahaveer and Tulsiram, convicted and sentenced each of the appellants for the offence under section 302/34 IPC to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months simple imprisonment.
(2.) IT is the prosecution case that on October 21, 1998 after receiving wireless message (Ex. P-30) from Control Room Rang Lal, ASI went to MBS Hospital Kota where informant Modu Lal (Pw. 19) handed over a written report (Ex. P-23) at 1. 30 PM to the effect that on receiving information from Gita Bai Brahmin about the murder of his brother Hemlal, when he reached to the spot he found his brother lying unconscious. Ram Kishan, who was standing there, told him that Hira Lal, Raju and Mool Chand had cut his brother with axes. He then took his brother on Motor cycle to Kota. On the basis of said report a case under section 302/34 IPC was registered and investigation commenced. Autopsy on the dead body of deceased Hemlal was performed, statements of witnesses were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bundi. Charge under section 302/34 IPC was framed against the appellants. The appellants denied the charge and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under section 313 Cr. P. C. , the appellants claimed innocence and stated that they had not committed the crime but it was Hemlal who along with Ramhet, Kala, Bhanwar Lal had committed murder of Gopi and in that incident Hemlal sustained injuries. They further stated that because of enmity Modulal and Durgalal have falsely implicated them. The FIR of the case of murder of Gopi also got exhibited. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the rival submissions and scrutinised the record. Undeniably the death of Hemlal was homicidal in nature. As per postmortem report (Ex. P-39) Hemlal received following antemortem injuries:- 1. Stab wound over left side of face adjacent to mostoid portion left outer in middle 13 x 3 cm x bone, transversly placed both clean cut 2. Chop wound over lateral aspect of nose on left side 8 x 4 x bone around with clean cut and margin, transversly placed on middle 1/3 of chin 3. Incised wound over lateral aspect of right shoulder 9 x 5 x muscle deep, with clotted blood 4. Incised wound over apigastric region 9cm left and 5cm right to mid line 2cm x muscle deep 5. Abrasion over left hand 5 x 0. 5cm below 1/3 region. According to Dr. P. K. Tiwari (Pw. 26) the cause of death was haemorage following injury to neck vessels on left side and associated with other injuries on body. A look at the impugned judgment of learned trial Judge reveals that the finding of conviction is primarily based on the testimony of informant Modu Lal (Pw. 19) and Durga Lal (Pw. 21 ). Although in the written report (Ex. P-23), Modulal stated that he was informed about the murder of his brother by Gita Bai Brahmin, at the trial he deposed that he had seen the appellants inflicting blows on the person of his brother Hemlal. Heera gave blow with axe near the ear of Hemlal, whereas Raju inflicted axe- blow on his neck. Mool Chand caused injuries with axe on the chest of Hemlal, while he was lying. At that time Durga Meena came over there, thereafter they took Hemlal on Motor cycle to Kota. In the cross examination when he was confronted with the written report, he explained that he did not give detailed description in the report. He was also confronted with his police statement (Ex. D-2), but he did not give any satisfactory explanation as to why he had not stated that he himself had seen the incident. Durga Lal (Pw. 21) in his deposition deposed that near the liquor shop, while he was standing at Sindhi shop, he saw Raju, Moolya and Heera inflicting blows with axes on the person of Hemlal. At that time he was 100 ft. away from the place of incident. Modulal was also present there. When he exhorted the assailants fled away. Hemlal was then sent on Motor cycle to Kota. In his cross examination he stated that his statement was recorded by the police after 4-5 days of the incident. He of his own did not go to police to inform about the incident. He also did not say about the incident to anybody.
(3.) GEETA Bai (Pw. 2), in her deposition, stated that while she was proceeding to reap Soyabeen, she saw Durga Lal lying on the ground and many persons were gathered there, who told her that Hemlal was cut to death. Thereafter she had gone to call Bhanwar Lal and Modu. GEETA Bai was declared hostile. In her cross examination she stated that she did not see Durga and Kalu near the place of incident. Ram Kishan (Pw. 3), who was named as eye witness in the written report, deposed that dead body of Hemlal was lying in front of his shop and he did not see the incident. Ram Kishan was also declared hostile. Kalu Lal (Pw. 4), who was examined as eye witness, also did not support the prosecution case and was declared hostile. ;