CHAUHAN, J. - (1.) THE death of Asu Khan, the central theme of long testimonies and of all tales, continues to be shrouded in mystery. THE sixteen appellants before us have been convicted and sentenced for offences under Sections 302, 302/149, 307/149 and 148 I. P. C. While Samay Singh has been convicted for offence under Section 302 I. P. C. simpliciter, and has been sentenced to Life Imprisonment, the rest of the appellants have been convicted and sentenced for offences under Sections 302/149 and sentenced likewise to Life imprisonment and have been imposed with a fine of Rs. 5,000/- each, and to further undergo a sentence of three years of simple imprisonment in default thereof. Along with Samay Singh, further they have been convicted and sentenced for offences under sections 307/149 and sentenced to five years of rigorous imprisonment. For offense under Section 148, the appellants, including Samay Singh, have been sentenced to rigorous imprisonment of one year and have been imposed with a fine of Rs. 500/- and to further undergo an imprisonment for six months, in default thereof. THE appellants have filed two appeals. Since both the appeals are challenging the same impugned judgment, the appeals are being decided by this common judgment. However, as the appellants Narangi and Attu Khan have expired, during the pendency of the appeals, the appeals have abated qua them.
(2.) THE brief facts of the case are that on 2. 6. 1992, one Dalsher Khan (P. W. 1) submitted a written report (Ex. P. 1) to the S. H. O. Police Station M. I. A. Alwar, at the General Hospital, Alwar, wherein it was stated as under: He is a resident of Village Sahdoli Mandaru Ka Bas. Because of political reasons, there is some animosity with the complainant. On 31. 5. 1992, the complainant had gone to deliver an invitation to the Village Mandu Ka Bas to Naseeb Khan's place. It was the marriage of Naseeb Khan's son, therefore, he had gone to invite Naseeb Khan's at his place and was returning to his own village. On the way back, using a tractor and trolley, the accused persons, along with twenty or twenty-five persons had blocked the road. One Munshi Khan was with the complainant when this incident took place. Munsi Khan was on complainant's scooter. When he went slightly ahead of the tractor, these persons surrounded him. Samay Singh and Sahab Khan cursed him and also assaulted him. THEy asked him as to how dare he came to their village. THEy also threatened him that after the marriage, they will come to his village to teach him a lesson. He came back to his village on the scooter. He claimed that he had informed the police on 1. 6. 1992 about this incident. But, he did not inform about this incident on 31. 5. 1992, as it was already night and he was afraid of the dark. On 2. 6. 1992, they received information that one of their relative had expired; therefore, in order to attend his funeral, the family members and others had collected at his house. Around 10. 00 or 10. 30 AM, three tractors, full of about fifty to sixty persons, who were armed with guns, lathies (bamboo sticks) and pharsis (axes) came from the side of Mandu Ka Bas. Samay Singh, Sahab Khan son of Safeda, Narangi, Hanif, Majid, Hamid, Parmal, Mahipal, Kallu, Aseen, Fathi Khan, Bhoop Singh, Sulli, Imran, Subban, Attu and others were there. THE moment these persons jumped out of the tractors, Samay Singh and Sahab Singh told the intruders to settle the past scores. Samay Singh filed from his gun, which hit Asu on his chest and abdomen. Asu fell down. Samay Singh fired the second shot, which hit Asu on his right hand. Samay Singh told his companions that everyone should be gunned down. Consequently, Sahab Singh fired from his gun, which hit Hurmat on his chest, abdomen, neck and on the nose. Pellets hit Hurmat. Hamid S/o Bhoop Singh fired from his gun, the shot hit Leela S/o Subani, on his eyes, left hand and left thigh. Narangi fired from his gun, which hit Paltu S/o Chandar on his left arm. Hanif fired from his gun that hit Budh Singh on his left hand, left thigh, chest and nose. Majid, also fired his gun which hit Budh Singh on his right foot and on both the hands. Parmal also fired from his gun that hit Sarsu on his foot, and Isa Khan and Umar Khan on their hands. Kallu S/o Attu also fired from his gun, which hit him (Dalsher) on his left hand and abdomen. THEse accused persons were also armed with lathis and pharsis, but they could not be used as the two groups did not rush into each other and there was no scuffle. Bhoop Singh hit Chottal Ruh with a stone, which hit him on the chin. Aseen Khan and Fatti also had guns with them, but they shot in the air. Dalla, Manohar, Munshi have witnessed this incident. Samay Singh, Sahab Khan, Narangi, Hamid, Parmal had 12 bore guns with them; the others had kattas (country made pistol) with them. THEre were empty cartridges lying at the spot, which he has brought with him and is giving to the police. After about half an hour, the three tractors left towards Bandu Ka Bas. THEy collected the injured and brought them to the Police Station. THEre the Additional Superintendent of Police told them to take the injured to the hospital. THE injured have been hospitalized. Asu, Leela @ Zahru, are in serious condition. We don't know whether they would survive or not. THE police should take action. The said report was sent to the Police Station through Constable, Kishan Lal. On the basis of the said written report, a formal F. I. R. , F. I. R. No. 131/92 was chalked out for offences under 147, 148, 149, 307, 336 I. P. C. During treatment at the hospital, Asu Khan died. Thereafter, the offence under Section 302 I. P. C. was added. On 19. 1. 1993, the charge sheet against the accused, Deen Mohammad, Fatti Khan, Aseen, Kallu Khan, Majid, Sulli, Subban, Imrat, Hanif, Hamid Khan, Mahipal, Attu Khan, Parmal, Bhoop Singh and Narangi, was submitted. On 15. 4. 1993, the supplementary charge sheet against Sahab Khan, Samay Singh was submitted for offences under Sections 302, 307, 147, 148 and 149 of I. P. C. Against Samay Singh the charge for offences under Sections 147, 148, 149, 302 and 307 I. P. C. were framed. Against the rest of the accused persons, the charges for offences under Sections 148, 302/149, 307/149 I. P. C. were framed. The accused persons denied the charges and claimed trial. In order to prove its case, the prosecution examined twenty- nine witnesses and produced 126 documents. The defense produced two witnesses and submitted fifteen documents. After hearing both the sides, after going through the oral and documentary evidence, the learned trial court, while acquitting Deen Mohammad of the charges, convicted and sentenced the appellants as aforementioned. Hence, these two appeals before us. The Counsels for the appellants have raised a large number of contentions before us; firstly, there is utter confusion in the testimony as to the place where the occurrence took place. According to some eye-witnesses the occurrence took place in front of Sitab Khan's house. Yet, Sitab Khan (P. W. 5) denies this fact in his testimony. According to other eye-witnesses the occurrence took place behind Sitab Khan's house and in Umar Khan's field. Thus, the prosecution has failed to prove the place of occurrence. Secondly, the prosecution has likewise failed to prove the place where the assailants shot Asu Khan. While some claim he was shot in the field of Umar Khan, others claim he was shot near the "chabutra" (raised platform) in front of Sitab Khan's house.
(3.) THIRDLY, the eye-witnesses have described the firing by the assailants in great detail. It is rather surprising that in a melee, where guns are allegedly fired at random, the details of whose shot hit whom has been given with minute precision. The witnesses are custom tailoring their testimony to the prosecution case. Hence, the witnesses are untrustworthy. Fourthly, although the eye-witnesses are precise about each shot fired by the assailants, yet their testimony about the shots sustained by the deceased is contrary to the medical report. According to the eye-witness, Samay Singh fired the shot at the same level. But according to the medical evidence, the trajectory of the pellets is downwards. Hence, the direction of the bullet belies the case of the prosecution. Fifthly, the prosecution witnesses have roped in innocent persons. This is proven from the fact that according to the witnesses, about fifty-to-sixty persons had arrived in three different tractors, at the scene of the crime. Yet the police charge sheeted only seventeen persons, i. e. the appellants along with Deen Mohammad. Thus, more persons were claimed to be at the scene of the crime, yet the police has charge sheeted less number of persons. Moreover, both Bhoop Singh and Narangi were seventy- five years old at the time of the alleged incident. It would be surprising that the old men would need to fire shots when young men were readily available amongst the intruders. Further more according to the Inquest Report (Ex. D. 9), one of the signatories, namely Issa Khan, the father of the deceased Asu Khan, had categorically stated that only three persons amongst the intruders had guns with them, namely Samay Singh, Sahab Khan, and Hamid Khan. Therefore, the subsequent testimony of the witnesses, where they claim that all the appellants were armed with guns, is belied by the categorical assertion of Issa Khan. ;