SHARMA, J. - (1.) IN these two appeals, which arise out of the same occurrence, the judgment dated October 20, 2000 of the learned Sessions Judge Sawai Madhopur is under challenge whereby the appellants, five in number, were convicted and sentenced as under: - Shyam Lal, Ramavtar and Jagdish: U/s. 302 IPC: Each to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for one month. U/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 1000/-, in default to further suffer simple imprisonment for fifteen days. Bhagchand and Ramjilal: U/s. 302/120b IPC: Each to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for one month. U/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 1000/-, in default to further suffer simple imprisonment for fifteen days. The substantive sentences were ordered to run concurrently.
(2.) THE prosecution case as unfolded during trial is that on March 3, 2000 the informant Kesar Lal (Pw. 17) submitted a written report (Ex. P-41) at the place of incident to the SHO Police Station Kotwali Sawai Madhopur wherein it was alleged that on that day at around 8 PM Kamal Kishore (Pw. 5) came to his house and informed him that Ram Dayal (informant's brother) was killed by Jagdish, Shyam Lal, Ramavtar, Bhagchand and Ramjilal and his body was lying in the field of Prabhu Dayal. On receiving information the informant and his family members rushed to the spot and found the dead body of Ram Dayal. On that report a case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Sawai Madhopur. Charges under sections 148, 302, 302/149 and 120b IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 20 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence and stated that they have been implicated falsely. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Death of Ram Dayal was homicidal in nature and as per postmortem report (Ex. P-42) following ante mortem injuries were found on the dead body: - 1. Incised wound around whole of L. forearm L. 1/4 with tractive complete separation of rest of the lid cutting all parts and lying separately 6ft. Far from dead body with red clotted blood. 2. Incised wound 8 x 3 x BD on Rt. wrist 3. Incised wound 8 x 2 x BD on Rt. knee medially. 4. six incised wound over left ring each other of size 10 x 4 x BC to 6 x 3 x BD of which placed at a distance of about 1 cm of which wound of middle area are cutting neck, soft tissue vessels and bone and the lib (cut part) attached only with a lag of skin. 5. Four incised wound placed over L. leg 1/3 part of size 10 x 4 x thorax & leg (connect skin) and 6 x 3 x BD and cut each of leg (L) attached only with leg of skin enclosed laterally and all margin are on enclosed lateral aspect. 6. Incised wound 7 x 2 1/2 x BD above (L) knee laterally with hematoma and red clotted blood. 7. Abrasion 5 x 1/2 cm on (L) thy 8. Abrasion 8 x 1/2 cm on (L) buttock 9. Incised wound over (L) ear 5 x 1 x 1 inch & Thorax and ear 10. Multiple bruise over lapping each other irregular in shape over L. side chest, Multiple fracture of 2 to 8th rib which corresponding pleura (L. leg of size 5 x 2 to 3 x 1cm with hematoma of about 300cc partly clotted red blood. In the opinion of Dr. M. L. Kanwat (Pw. 19) the cause of death was hemorrhage shock brought about as a result of injuries. The prosecution relied on four eye witnesses viz. Prem Narain (Pw. 4), Kamal Kishore (Pw. 5), Suresh (Pw. 6) and Siya Ram (Pw. 11 ). Since all of them are chance witnesses it is necessary to have a closure scrutiny of their evidence. Prem Narain (Pw. 4) in his deposition stated that around 7. 30 PM while he, Siya Ram, Suresh and Kamal were going to their village Padli on tractor, he saw a shoe and cycle lying near Prabhu Dayal's field. On turning lights of the tractor towards the field Shyam Lal, Ramavtar, Jagdish, Bhagchand and Ramji Lal were seen. Ramavtar was armed with Pharsa whereas Jagdish had axe and Shyam Lal had a lathi. Shyam Lal, Jagdish and Ramavtar were given beating to Ram Dayal. Kamal got down of the tractor and asked the assailants as to why they were given beating. Prem Narain and other persons sitting on the tractor also got down and saw Ram Dayal lying in a pool of blood. He was dead. Testimony of Prem Narain gets corroboration from the statements of Kamal Kishore (Pw. 5) Suresh (Pw. 6) and Siya Ram (Pw. 11 ). Learned counsel for the appellants pointed out following infirmities in the prosecution evidence: - (i) Statement under section 161 Cr. P. C. of Prem Narain (Pw. 4) was recorded after 10 days of the incident as is evident from the cross examination of Prem Narain. (ii) Kamal Kishore (Pw. 5) in his cross examination deposed that wheat crop of 3ft. height was standing on the place of incident and he saw Ram Dayal lying on the wheat crop. He did not know as to how many injuries were caused by the each accused and on what part of the body of Ram Dayal. (iii) Suresh (Pw. 6) admitted in his cross examination that his police statement under section 161 Cr. P. C. was recorded after 20 days. Till his statement was recorded he did not say anything to anybody. (iv) Siya Ram (Pw. 11) in his cross examination stated that police came to him after 10 days of the incident. Till such period he kept mum and did not narrate the incident to anybody. On the strength of aforesaid infirmities learned counsel for the appellant canvassed that all the alleged eye witnesses are not only interested witnesses but version given by them is highly doubtful apart from the fact that they being the chance witnesses. It is further contended that the prosecution also could not establish the charge under section 120b beyond reasonable doubt.
(3.) PER contra, learned Public Prosecutor supported the impugned finding of learned trial judge and urged that witnesses Prem Narain (Pw. 4), Kamal Kishore (Pw. 5), Siya Ram (Pw. 11) are Brahmin by caste whereas Suresh (Pw. 6) is Jaga. Therefore it was wrong to suggest that they had animosity against the appellants who are by caste Bairwa and deceased Ram Dayal was also Bairwa. We have reflected over the rival submissions and carefully weighed the material on record. Factual situation emerges from the evidence may be summarized thus: - (a) Written report (Ex. P-41) was handed over by Kesar Lal (Pw. 17) to Kalu Ram IO (Pw. 20) at 10 PM when he reached at the field of Prabhu Dayal Jaga situated in village Padli on receiving telephonic message of Kesar Lal. (b) Kalu Ram IO recorded the statements of Prem Narain and Siya Ram on March 12, 2000. Whereas statement of Suresh was taken on March 27, 2000. (c) All the four eye witnesses categorically deposed that appellants Bhagchand and Ramji Lal did not participate in beating. They were present at the place of occurrence empty handed. (d) Kamal Kishore (Pw. 5) got down of the tractor and exhorted the assailants and communicated information about the incident to relatives of Ram Dayal. Statement of Kamal Kishore under section 161 Cr. P. C. was recorded promptly i. e. , on March 4, 2000. (e) In the written report (Ex. P-41) Prem Narain, Suresh, Kamal Kishore and Siya Ram were named as eye witnesses of the incident. (f) From the cross examination of Kalu Ram IO (Pw. 20) it appears that as and when the witnesses met him he got their statements recorded. ;