SHARMA, J. - (1.) FOUR appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:- Atar Singh: U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months. U/s. 307 IPC : To suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months. U/s. 147 IPC: To suffer rigorous imprisonment for one year. U/s. 148 IPC: To suffer rigorous imprisonment for one year. U/s. 323 IPC: To suffer rigorous imprisonment for six months. U/s. 341 IPC: To suffer rigorous imprisonment for one month. Jal Singh: U/s. 302/149 IPC. To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months. U/s. 307 IPC : To suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months. U/s. 147 IPC: To suffer rigorous imprisonment for one year. U/s. 148 IPC: To suffer rigorous imprisonment for one year. U/s. 323 IPC: To suffer rigorous imprisonment for six months. U/s. 341 IPC: To suffer rigorous imprisonment for one month. Chhitariya and Mahaveer : U/s. 302/149 IPC. Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months. U/s. 307/149 IPC : Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months. U/s. 147 IPC: Each to suffer rigorous imprisonment for one year. U/s. 323 IPC: Each to suffer rigorous imprisonment for six months. U/s. 341 IPC: To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.
(2.) AS per the prosecution story on April 19, 1997 at 1. 30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot. fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced 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. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to he rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. As per post-mortem report (Ex. P-36) deceased Angoori received following ante-mortem injuries: There are multiple punctured lacerated wounds of size 3cm to. 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed. In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding. Kallo (PW-1) vide injury report (Ex. P-30) received following injuries: 1. Red Contusion 2cm x 1. 5 Rt. knee with Abrasion 2cm x 1. 5cm Patella. 2. C/o pain with diffused swelling Lt. index finger distal phalanx 3. C/o pain right side scapular region with tenderness. Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:- 1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely 2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3 3. Abraded swelling Middle Phalanx Lt. index finger all over joint 4. Red contusion 2cm x 1cm Lt. temporal region. 5. C/o pain with local tenderness Rt. knee. Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries: 1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line. 2. Abrasion with clot. middle phalanx Lt. middle finger. Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries: 1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line 2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:- 1. Lacerated punctured wounds of size 0. 25 to. 3 X 0. 3 to 0. 25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt. shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly. Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:- 1. Lacerated wounds 4cm x 1cm x Muscle deep Lt. Parietal lower 1/3 oblique 2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted. 3. Diffuse swelling all over Rt. knee. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1 ). Banwari (PW- 5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled `bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1 ). Learned counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned counsel are as under:- (i) Cross FIR (Ex. D-9a) was lodged at Police Station Roopwas at 1. 35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10a) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D- 13a) and as per Ex. D-14a there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15a and as per Ex. D-16a there were fractures of distill end of proximal phalanx of left thumb. Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21a and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries. (ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh. (iii) Deceased Angoori died at 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr. P. C. (iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought. (v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.
(3.) IN support of his submissions learned counsel placed reliance on State of M. P. Vs. Mishrilal (2003 Cr. L. R. (SC) 425), wherein the Apex Court observed as under:- " there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case. " Reliance is also placed on Hotam vs. State of Rajasthan (2004 (1) Cr. L. R. (Raj.) 467 = RLW 2004 (2) Raj. 1352), wherein Division Bench of this Court observed as under:- " In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right. " In Buta Singh vs. State of Punjab (AIR 1991 SC 1316) it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained. ;