SHARMA, J. - (1.) CHALLENGE in these three appeals is to the legality of judgment dated January 28, 2002 rendered by the learned Additional Sessions Judge No. 2, Kota, whereby the appellants, five in number, have been convicted and sentenced as under:- Appellant Kalu @ Laxmi Narayan: u/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for two months. Appellants Kamal @ Kamal Kumar, Sattu @ Satya Narayan, Mukesh @ Anil Kumar u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for two months. Appellants Kalu @ Laxmi Narayan, Kamal @ Kamal Kumar, Sattu @ Satya Narayan, Mukesh & Anil Kumar u/s. 148 IPC: Each to suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently.
(2.) PUT briefly the prosecution case is as under:- On November 9, 1999 at 10. 15 PM informant Pappu @ Mukesh (PW. 7) submitted a written report (Ex. P. 5) at Police Station Kaithooni Pole Kota to the effect that on the said day around 8. 30 PM he saw Santu, Kalu @ Laxmi Narain, Kamal, Mukesh Koli and Anil Mochi going towards Inspectory School. They were armed with knives. The informant followed them and found his younger brother Manoj standing in front of Inspectory School. On seeing Manoj, Kalu @ Laxmi Narayan made attempt to inflict knife blow on the person of Manoj but Manoj saved himself and ran for life. All the five assailants chased Manoj and caught him. Kalu @ Laxmi Narayan then gave blow with knife on the left side of his abdomen as a result of which Manoj fell down. Santu, Kamal, Mukesh and Anil who were armed with knives they caused injuries on the person of Manoj. The incident had been witnessed by Sushila (wife of informant ). In the meanwhile Guddu and Babu also arrived. Manoj was removed to the hospital where he was declared dead. On that report police station Kaithooni Pole Kota registered a case under sections 147, 148, 149 and 302 IPC and investigation commenced. Necessary memos were drawn. Statements of witnesses were recorded. Dead body 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 Additional Sessions Judge No. 2 Kota. Charges under Sections 148, 302 and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Appellant Anil Kumar stated that Guddu, Babu and Ramrai made assault on him behind the house of Madar Bux and caused injury with Katar (knife) on the left side of his chest and caused injury over his left rib, on account of which he was hospitalized and had undergone two operations. Cross case bearing FIR No. 220/1999 under Section 307 IPC was lodged against complainant party and challan was also filed against Guddu, Babu and Ramrai. Dr. Rakesh Sharma (DW. 1) was examined as defence witness by the appellants. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the contentions raised before us and with the assistance of learned counsel perused the record. Death of deceased Manoj was undeniably homicidal in nature. As per autopsy report (Ex. P. 6) following ante mortem injury was found on the dead body:- Stab wound 4 x 1 1/2 cm x cavity deep on Lt. lumbar region on anterior abdominal wall. Transversly placed, margins clean cut, loops of intestine with peritoneum coming out. In the opinion of Dr. Ashok Mundra (PW. 8) the cause of death was shock as a result of injury to abdominal aorta. In the same incident appellant Anil Kumar also sustained stab wound on the left side of his chest. As per injury report (Ex. D. 8) following injuries were found on his person:- 1. Stab wound 2 x 1 x CD on left side of chest. 2. Bruise 6 x 2 cm on Rt. shoulder. 3. Bruise 5 x 2 cm on the Left shoulder. 4. Incised wound 1 x 1/4 x SD on Rt. middle finger. Vide X-ray report (Ex. D-9) the injury No. 1 was found dangerous to life. Appellant Anil Kumar was admitted to MBS Hospital Kota and his parcha bayan (Ex. D. 5) was recorded on November 9, 1999 at 10. 25 PM wherein he stated as under:-
(3.) ESA csdjh dk dke djrk gwaa vkt fnukad 9-11-99 dks ESA vksj lrrw rfkk eukst rhuksa gh jaxckmh eqds'k ls feyus x;s Fksa ogka tkrs le; ge rhuksa gh 'kjkc ihdj x;s Fksa ogka ij Fkksmh nsj :d dj rhuksa gh Ldwvj ls djhc 9&15 cts 'kke dks okil vk;sa mlds ckn ik;sxk Ldwy ds ikl eqks eukst vksj xqmmw feys ftuESA eukst ds gkfk ESA pkdw Fkk rfkk xqmmw ds gkfk ESA dvkj Fkh mugksus eqks fcuk dkj. k gh tku ls ekjus ds fy, eukst us esjs lhus ij ekjuk pkgk ESAu nkfgus gkfk ls idm dj cpko fd;k ftlls esjs nkfgus gkfk dh vaxqyh dv xbz vksj xqmmw us eqks tku ls ekjus ds fy, dvkj dh ckbz ilyh ij ekjh tks esjs 'kjhj ds vunj /kal xbz rfkk xqmmw ds ,d lkfkh ftldk uke ugha tkurk mlus yb dh esjs dka/kksa ij ekjh og cksj[ksmk jgrk gsa** Police Station Kaithooni Pole Kota, on the basis of Parcha bayan registered a case under Section 307/34 IPC against Manoj and Guddu. Charge sheet (Ex. D. 6) under Section 307/34 was filed against Guddu, Ramdas and Babu. Coming to the prosecution case we notice that alleged eye witnesses viz. Sushila (PW. 1) Guddu (PW. 5), Babu (PW. 6) and Mukesh (PW. 7) have not explained the injuries sustained by appellant Anil Kumar. According to Sushila (PW. 1) Sattu, Kalu, Laxmi Narayan, Mukesh, Kamal and Anil who were armed with knives chased her Dewar Manoj and near Sripura Inspectory School they caught Manoj and started inflicting knife blows. Kalu inflicted blow on the left side of Manoj due to which he fell down thereafter all accused inflicted blows with legs and fists. She, her husband, Guddu and Babu tried to intervene but the accused threatened them to kill therefore they remained five steps away. In the cross examination she admitted that at the place of incident there was no source of light. It was a dark night and road lights were off. She denied the suggestion that Guddu, Babu and Manoj attacked on Anil and the case was lodged against them. Guddu (PW. 5) in his deposition stated that on the date of incident he was at his house Babu came to him and told that Kamal, Anil, Sattu, Mukesh and Kalu surrounded Manoj. Thereafter he and Babu chased appellants and found them surrounding Manoj. Kalu inflicted knife blow on left rib of Manoj. At that time Sushila and Mukesh also reached there. In the cross examination he admitted that Manoj was his relative and except Kalu other accused did not cause any injury to Manoj. He further admitted that the case lodged by Anil was pending against him. ;