SHARMA, J. - (1.) THE appellants, nine in number, along with co-accused Santu, were put to trial before the learned Special Judge (Communal Riots/mansingh Murder) Jaipur, who vide judgment dated May 18, 2000, while acquitting co-accused Santu, convicted and sentenced them as under:- Appellants Dilip Singh & Dasrath Singh u/s. 302 and 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 3000/- , in default to further suffer rigorous imprisonment for three months. u/s. 148 IPC: Each to suffer rigorous imprisonment for two years. Appellants Mahaveer Singh, Rajveer Singh, Sudepal, Damodar, Ravindra Singh, Diwan Singh and Khem Singh: u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 3000/- , in default to further suffer rigorous imprisonment for three months. u/s. 147 IPC: Each to suffer rigorous imprisonment for one year. THE substantive sentences were ordered to run concurrently.
(2.) THE prosecution story is woven like thus:- On December 29, 1997 informant Raju Nayak (PW. 2) submitted a written report (Ex. P. 3) at Police Station Jhotwara to the effect that on the said day around 8. 15 AM Rajendra Grover (since deceased) came on a motor cycle to his house at Plot No. 125 Shri Ram Nagar as there was cricket match of their team. In the meanwhile a jeep of cream colour came from the side of Adarsh Vidhya Mandir and hit the motor cycle of Rajendra Grover. Informant and Rajendra Grover both ran for their life but Dilip Singh, Dasrath Singh Mehroli, Mahaveer Singh, Sunil Bihari and 5- 6 others armed with sword, Pharasa, Lathis and gun belaboured Rajendra Grover and started inflicting blows on his person with the weapons. THE persons who had gathered could not date to save Rajendra Grover. His one leg was cut and other leg was fractured badly. On arrival of police the injured was removed to hospital. On that report Police Station Jhotwara registered a case and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. Dead body of Rajendra Grover was subjected to autopsy. THE appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Communal Riots/mansingh Murder) Jaipur. Charges under Sections 147, 148, 302 and 302/120b IPC were framed against the appellants, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 26 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Mr. S. R. Surana, learned counsel for the appellants withdrew his vakalatnama and expressed inability to argue the appeals preferred by him. So also Mr. S. S. Chaudhary and S. S. Sunda learned counsel for the appellants did not take interest in arguing the appeals. Since learned counsel for the appellants failed to argue the appeals pending for the last five years, we appointed Mr. Ravi Chirania learned counsel as Amicus Curiae and granted him time to study the case and make submissions. Learned Amicus Curiae rendered valuable assistance to us in deciding the appeals. He took us the statements of witnesses and other material on record and canvassed that the prosecution has filed to prove charges beyond reasonable doubt against the appellants. According to learned Amicus Curiae, no reliance could be placed on the testimony of alleged eye witnesses Raju Nayak (PW. 2) and Pankaj Sharma (PW. 7) since their testimony was shattered in the cross examination. It is further contended that nobody had seen the incident and anybody could kill Rajendra Grover since he was a known criminal and he had many enemies who wanted to liquidate him. Statements of witnesses viz. Dr. R. L. Bairwa (PW. 26) and Dr. S. K. Pathak (PW. 22) do not corroborate the facts stated in the FIR. Recovery of weapons at the instance of the appellants was a myth. Alleged dying declaration of Rajendra Grover is a concocted document and no reliance can be placed on it. We have considered the submissions. Since seven appeals have been preferred by the appellants, we deem it appropriate to incorporate the grounds raised by each appellant in the memo of appeal. (1) Appeal No. 656/2001 of Dilip Singh: (i) In FIR the weapons have been shown to be sword, pharsa, sariya and sticks. No recovery of any such weapon was made from the appellant. (ii) Rajendra Grover was known criminal and number of criminal cases were pending against him. He committed 8-9 murders including double murder at Dhankia in which the appeal before Hon'ble Supreme Court was pending. Rajendra Grover including Mahendra Grover and other accused persons were gangsters and they forcibly took money from any persons. Therefore there were several enemies who wanted to liquidate Rajendra Grover. (iii) Dying declaration could not have been relied upon since it could not be certified that Rajendra Grover was in senses and fit to give statement. There was complete violation of police rules in recording dying declaration. Likewise no Magistrate was called for recording the same. When the information was received by the police at 8 AM the SHO along with the party reached at the spot within 10-15 minutes but no statement of any local witness was recorded. (iv) In the name of cricket match false story has been concocted. The statement of Raju Nayak (PW. 2) is not reliable as to had not seen any occurrence. (v) The identification parade was farce and the accused persons were shown to the witnesses prior to parade. The statement of Hemant Khandelwal is wholly unreliable. The weapon mentioned in this case is not related to appellant nor any weapon has been mentioned in the FIR as well as in dying declaration. (vi) Statements of Dr. L. R. Bairwa (PW. 26) and Dr. S. K. Pathak (PW. 22) do not corroborate the FIR. According to FIR the injuries were inflicted on non vital parts of body, therefore no inference could not be drawn that appellants had intention to commit murder. (vii) Findings of trial Court are vitiated as no critical appreciation and analyses was made. (viii) There are serious defects in framing the charges against the appellant as well as in recording the statement under Section 313 Cr. P. C. and appellant has been seriously prejudiced. (2) Appeal No. 67/2002 of Khem Singh: (i) Findings arrived at by the Special Judge are contrary to law, facts and material on record. The allegations levelled by prosecution and charges framed by trial Court have not been proved. (ii) The trial Court has relied upon the evidence of Raju Naik (PW. 2) and Pankaj Sharma (PW. 7) as if they were eye witnesses. Their evidence has not been considered properly. (iii) The complainant lodged the FIR (Ex. P. 3) on December 29, 1997, wherein the name of appellant Khem Singh does not find place. He has not described the features of appellant. Raju Naik is not eye witness but an outrightly arranged witness of prosecution just to concoct the story. Raju Naik (PW. 2) stated that Pankaj Sharma, Rajesh Sharma and Virendra Sharma also seen the incident, if this story is true as to why he did not mention this fact in the FIR. He also admitted in his statement that he did not inform the incident to wife and of parents of Rajendra Grover. As such Raju Naik is not eye witness of the incident. (iv) Raju Naik (PW. 2) admitted that site plan (Ex. P. 5) was prepared in his presence but he did not show the place of Pankaj Sharma, Rajesh Sharma and Virendra Sharma from where they saw the incident. As such the prosecution relied on created witness. (v) Raju Naik (PW. 2) was never known to appellant. Gopal Singh, IO (PW. 23) admitted that the appellant was not kept baparda as such the report of identification parade cannot be relied upon. (vi) Statement of Pankaj Sharma PW. 7 shows that he was not eye witness of the incident. He also admitted that he did not raise alarm for help. As such he has wrongly been believed. (vii) The identification parade is concocted and the accused persons were shown to the witnesses. The appellant was arrested on December 29, 1997 and identification parade was held on January 15, 1998 during this period he was not kept baparda. Therefore the report of identification is not reliable. (viii) There is delay in sending the FIR to the concerned Magistrate nor there is explanation for the delay in sending the report. (ix) Dying declaration was recorded without following the provisions of police rules, without obtaining certificate of doctor and in absence of Magistrate. Even the father's name of witness of dying declaration Shankar has not been mentioned. Therefore the same cannot be relied upon. (x) Findings of trial Court are based on surmises and conjectures. (3) Appeal No. 375/2000 of Dashrath Singh and Mahaveer Singh: (i) In FIR no name of appellants have been mentioned. Raju Nayak and other witnesses are after thought and full of concocted version. No time has been mentioned in Ex. P. 1 No dangerous weapon has been shown in the hands of appellants nor any specific injury has been attributed to them. (ii) Mahaveer Singh has been falsely implicated u/s. 147 IPC, he was not present on the spot. The identification of appellant is doubtful as he was not kept baparda. Dashrath Singh has been falsely implicated u/s. 148 IPC. Pankaj Sharma (PW. 7) is got up witness. His name is not mentioned in the dying declaration. (iii) The identification parade is concocted and the accused persons were shown to the witnesses. (4) Appeal No. 374/2000 of Diwan Singh: (i) FIR was lodged by vocal witness Raju Nayak who has not mentioned the name of appellant. Testimony of Raju Nayak and other witnesses is after though and full of concocted version. (ii) According to FIR injuries were inflicted by pharsa, sword and lathi but no such recovery has been affected from appellant. No specific injury has been attributed to him. The appellant has been implicated falsely with the aid of Section 149 IPC. (iii) Raju Nayak and Pankaj Sharma has been relied upon by trial Court but they have not stated a single word against the appellant. (iv) The dying declaration is false and created piece of evidence and there nothing in respect of infliction of injuries. No enmity has been shown with the appellant. (v) The injury No. 4 caused by sharp edged weapon is treated to be fatal and that has not been attributed to appellant. (vi) No independent witness of locality has been produced. The conviction under Section 147 IPC is legal. (5) Appeal No. 292/2000 of Sudepal Singh: (i) In FIR name of appellant has not been mentioned. No specific injury has been attributed to them. (ii) Appellant has been falsely implicated under Section 147 IPC. He was not present on the spot. The identification of appellant is doubtful as he was not kept baparda. His name is not mentioned in the dying declaration. (iii) The identification parade is concocted and the accused persons were shown to the witnesses. (6) Appeal No. 275/2000 of Rajveer Singh and Ravindra Singh: (i) In FIR name of appellants have not been mentioned. (ii) According to FIR the injuries were inflicted by pharsa, sword an lathis but recovery of weapon has not been affected by police. No specific injury has been attributed to appellants. The appellants have been falsely implicated with the aid of section 149 IPC, they were not present on the spot. The identification of appellants is doubtful as they were not kept baparda. Their names have not been mentioned in the dying declaration. (iii) The identification parade is concocted and the accused persons were shown to the witnesses. (7) Appeal No. 376/2000 of Damodar Lal: (i) The name of appellant has not been mentioned in FIR. (ii) The case of appellant is not distinguishable with that of co-accused Santu who stood acquitted. (iii) Pankaj Sharma (PW. 7) has not attributed any injury to appellant. Replying the submissions on the other hand, learned Public Prosecutor urged that the charges have been established beyond reasonable doubt Testimony of Raju Nayak, Pankaj Sharma could not be shettered in the cross examination and it corroborates the dying declaration of the deceased. All the appellants were identified in the Identification Parade as also in the court, therefore no interference is called for. Having analysed the material on record we find that the death of Rajendra Gover was homicidal in nature. As per post mortem report (Ex. P. 50) following ante mortem injuries were found on the dead body:- 1. Stitched would of size of 7 cm long obliquely placed with tailing downwards placed over Rt. side fronto parito to temporal region of scalp. 2. Two abrasions of size 2 x 1/2 cm each of size with gap of 1/2 cm placed over Rt. side forehead just above Rt. eye brow. 3. Stitched wound 4-1/2 cm long obliquely placed over Lt. side shoulder joint & upper anteriorly fresh clotted blood with tailing downward and laterally. 4. Lacerated wound 4 x 1 cm x skin deep fresh clotted blood placed over parito medial of Lt. elbow. 5. Abrasion 2 x 1cm x medial aspect of Lt. elbow. 6. Abraded bruise of size 3 x 2cm reddish in colour posterior laterar of Lt. Foresarm upper 1/3rd part. 7. Abrasion 3 x 2 cm reddish in colour anteriorly aspect bruise 4 x 3 cm anterior of Lt elbow joint. 8. Abrasion 2 x 1/2 cm back of Lt. forearm upper dorsally reddish diffuse swelling over Lt. elbow forearm. There is fracture of Lt. upper part of ulna commutted and lower end of. 9. Abrasion 1 x 1/2 cm reddish in colour with diffuse swelling. Rt. side of forearm dorsally upper. 10. Incised wound 12 x 4 cm x bone deep vertically centre of Rt. palm upto joint level palm fresh clotted blood fracture of metacaropal bone. 11. Bruise 3 x 2cm reddish in colour irregular placed over Rt. iliac crest of pelwis. 12. Bruise 3 x 2 cm oblique over back of Rt. side of chest lower. 13. Lacerated wound 1 x 1/2 cm x muscle deep oblique fresh clotted blood over Rt. thigh middle 1/3 anteriorly. 14. Abrasion 3/4 x 1/4 cm anterior of Rt. thigh lower 1/3 reddish in colour. 15. Incised wound 10 x 4 cm x bone deep oblique with patella bone cut fresh clotted blood anteriorly Rt. side. 16. Incised wound of size 17 x 6 cm x bone deep oblique with patella cut and canalyle of tibia cut with fresh clotted blood Rt. side. 17. Incised wound of size of 7 x 2cm x bone deep with medial candyle of tibia cut with fresh clotted blood anterior medial of Rt. knee upper part. 18. Incised wound 4 x 2cm x muscle deep oblique fresh clotted blood placed over Rt. side of leg middle 1/3 anterior. 19. Incised wound 12 x 3 cm x bone deep oblique with lower end of femar candyle cut fresh clotted blood back of Rt. knee point. 20. Incised wound of size 15 x 8 cm x fibula bone cut deep oblique fresh clotted blood back of Rt. knee posterior laterally. 21. Abrasion 1 x 1/2 cm reddish in colour anterior of Rt. ankle joint. 22. Incised wound of size 6 x 3 cm x bone deep anterior Lt. knee frontal with cut lower end femur upper ends both. 23. Incised wound T-shape 6 x 3cm fresh clotted blood cut of both leg bones with hematoma. 24. Three lacerated wound 2 x 1/2 cm group of 2 cm each vertically placed fresh clotted blood placed upper of factum of leg bones commutted. 25. Abrasion 7 x 1/2 cm reddish lateral of Lt. leg middle 1/3. 26. Diffuse swelling front of chest. 27. Incised wound (stab) oblique of size 2 1/2 x 1 cm x chest cutting deep with fresh clotted blood place over Rt. side chest upper part of anterior V axillary line and 6 cm lateral to Lt. nipple. 28. Incised wound 1 x 1/2 cm x muscle deep oblique fresh clotted blood posterior axillary line on back of chest upper part. 27. Abrasion 1/2 x 1/4 cm back of chest Lt. side upper 1/3rd reddish in colour. In the opinion of Doctor H. L. Bairwa (PW. 26) the cause of death was shock and hemorhage as a result of injuries. Alleged dying declaration (Ex. P. 1) was recorded by Bhim Singh ASI (PW. 14) wherein Rajendra Grover stated that on the said day in the morning at 8. 15 AM he went to the house of Raju Nayak on motor cycle to inform him about the cricket match. While he and Raju were talking, a jeep of cream colour bearing No. RJ 14 2 C 1919 came and hit his motor cycle. When he ran for his life the accused who were 8-10 in number encircled him and assaulted him with sword, Pharsa, iron rods and lathis. Dilip Singh who exhorted others to kill him was accompanied by Mahaveer Singh, Khem Singh, Sudepal, Diwan Singh, Ravindra Singh, Rajveer Singh and Dashrath and all of them made assault on him. Dilip Singh had sword, Dashrath Singh had Pharsa and others had lathi and iron rods. The statements of Rajendra Grover was recorded by Bhim Singh S. I. of Police Station Jhotwara in the presence of one Shankar. It did not bear the signatures of Rajendra Grover and a note was appended that Rajendra Grover was not in a position to put his signatures.
(3.) INFORMANT Raju Nayak (PW. 2) in his deposition stated that on the said day around 8. 15 AM Rajendra Grover came on a motor cycle to his house at Shri Ram Nagar as there was cricket match of their team. At the same time Virendra Sharma, Raju Sharma and Pankaj Sharma also reached there. While all of them were talking, a jeep of cream colour came from the side of Adarsh Vidya Mandir and hit the motor cycle of Rajendra Grover. He saw Mahaveer Singh @ Sunil Bihari, Dilip Singh, Dashrath Singh and 5-6 others who were sitting in the jeep. He and Rajendra Grover both ran for their life but Dilip Singh, Dasrath Singh Mehroli, Mahaveer Singh @ Sunil Bihari and 5-6 others armed with sword, Pharasa, Lathis and gun belaboured Rajendra Grover in front of the house of Kamal Nayak and started inflicting blows on his person. Dilip Singh inflicted sword blows, Dashrath inflicted blow with pharasa. Dilip Singh had also exhorted others to kill Rajendra. He was beaten up brutally, his one leg was cut and other leg was fractured. Rajendra Grover was removed to hospital. Raju Nayak correctly identified Dilip Singh, Mahaveer Singh @ Sunil Bihari and Dashrath Singh in the court. In his cross examination he stated that Mahaveer Singh and Sunil Bihari is one person. Bhim Singh, ASI (PW. 14) deposed that on December 29, 1997 around 8. 20 AM he had gone to Shivpuri colony along with SHO and other police staff. An injured person was lying there. Pursuant to the direction of SHO he proceeded with the injured to the hospital and on the way he noted his dying declaration (Ex. P. 1 ). Since the injured could not sign over his statement, he got the signatures of Shankar who was sitting with him. He then got the injured person admitted to the hospital. In the cross examination he stated that near the injured person as many as fifty persons were standing but none of them informed him about the incident. The injured himself did not nature the incident to SHO at the place where he was lying. Statement of injured was recorded in running jeep and he did not note the time of recording the statement. The speed of jeep was 30-40 kms. Shanker (PW. 1) stated that he helped police in lifting the injured and he accompanied him in the jeep. The injured gave his name as Rajendra Grover and the police recorded his statement in the jeep. He (Shanker) put his signatures on the statement. In the cross examination he stated that Raju Nayak also helped in lifting the injured. He did not know the way through which the jeep travelled till reaching the hospital. ;