SHARMA, J. - (1.) SINCE all these matters arise out of the same occurrence we proceed to decide them by a common order.
(2.) THE appellants, fifteen in number, were put to trial before learned Additional Sessions Judge No. 2 Alwar in Sessions case No. 15/1996. Learned trial Judge vide judgment dated May 15, 2000 convicted and sentenced them as under:- Buddhi, Abdul Rahim and Hamid: U/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer simple imprisonment for six months. Shakoor and Gafoor: U/s. 304 Part I/34 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer simple imprisonment for six months. Himmat: U/s. 326 IPC: To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for six months. Buddhi, Roozdar, Hurmat, Hamid, Hajar Khan, Sapat, Hnif, Majid, Rashid and Ashraf: U/s. 326/149 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for six months. Buddhi, Roozdar, Hurmat, Himmat, Hamid, Hajar Khan, Sapat, Hnif, Majid, Rashid and Ashraf: 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 three months. U/s. 325/149 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/- in default to further suffer simple imprisonment for three months. U/s. 324/149 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/- in default to further suffer simple imprisonment for three months. U/s. 323/149 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/- in default to further suffer simple imprisonment for three months. THE substantive sentences were ordered to run concurrently. Conviction and sentence of the appellants have been questioned in appeals No. 282/2000, 250/2000 and 283/2000, whereas complainant Deenu preferred revision petition No. 451/2000 seeking enhancement of punishment. The appellant Buddhi preferred revision petition No. 418/2000 assailing the judgment dated May 15, 2000 rendered in Sessions Case No. 6/1997 whereby the members of complainant party have been acquitted. It is the prosecution case that complainant Deenu (PW. 1) on August 8, 1991 submitted a written report (Ex. P. 1) at the Police Station Ramgarh to the effect that on the said day around 7-8 AM while he, his father Paltu and brothers Sahab Khan, Noor Mohammad, Sher Mohammad and Ali Mohammad were going to plough the field they were belaboured by Buddhi, Rashid, Hamid, Hanif, Hajar, Himmat, Hurmat, Majid, Ashraf, Sapat and Ruzdar. Buddhi was armed with Lathi, Hamid, Rashid and Hanif had Pharsa, Himmat had spear and others has lathis. They started beating them by lathi, Pharsi and spear. Himmat hit on the upper lip and head of Deenu with stone while Hamid hit stone on his left hand. Buddhi gave lathi-blow on the eye of Paltu. Hurmat inflicted lathi-blow on Sher Mohammad, Sapat inflicted lathi-blow on the head of Ali Mohammad. After about five minutes his uncle Saltu was surrounded near the house of Nasib Khan by Abdul Rahim, Himmat, Buddhi, Hamid, Hanif. Abdul Rahim, Buddhi and Hamid inflicted blows with pharsis and lathi on the head and behind the ear of Saltu. Believing Saltu dead the accused fled away. The incident was witnesses by Idrish, Ruzdar, and Muhim etc. Dead body of Saltu and other injured were removed to the hospital. On that report a case under Sections 147, 148, 149, 341, 323, 324, 302 and 336 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case camp up for trial before the learned Additional Sessions Judge No. 2, Alwar. Charges under Sections 147, 148, 302, 302/149, 326/149, 325/149, 324/149, 323 and 341 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as may as 21 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. The defence of appellants was that the incident occurred in their field and they received injuries. They have also lodged the cross case against the complainant party. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of learned counsel we have gone through the evidence on record. Death of Saltu and Kantuli was homicidal in nature. As per post mortem report (Ex. P. 29) Saltu received following ante mortem injuries:- 1. Incised wound 10 x 4 x deepculy Fronto parietal right skull. 2. Lacerated wound 6 x 3 right parietal occipital region 3. Incised wound 10 x 3 x deep upper bone left ear According to Dr. Pramod Kumar Jaiman (PW. 14) the cause of death of was haemorrhage and shock due to antimortem injuries. Deceased Kantuli as per post mortem report (Ex. P. 50) received following ante mortem injuries:- 1. Swelling all over left frontal parietal region 2. Lacerated wound 1 cm x 1/2 cm x Bone deep occipital region According to Dr. Harish Manocha (PW. 21) the cause of death of was haemorrhage and shock due to antimortem injuries.
(3.) IN the same incident accused persons also sustained injuries. Accused Buddhi vide injury report (Ex. D. 7a) received following injuries: 1. INcised 6 x 3 x deep upto bone left parietal 2. Lacerated 5 x 2 x 3 left parietal 3. Lacerated 6 x 2 x 2 near mid lien to left 4. Swelling 1/3 right forearm. 5. Bruise Accused Hurmat vide injury report (Ex. D. 8a) received following injuries:- 1. Tender over left thumb 2. Lacerated 4 x 2 x 2 towards the left skull 3. Lacerated behind the injury No. 1. Accused Nawab vide injury report (Ex. D. 9a) received following injuries:- 1. INcised 6 x 2. 5 x 2 left parietal 2. Lacerated 2. 5 x 2 x 2 right parietal 3. Tender 1/3 right leg Accused Sapat vide injury report (Ex. D. 10a) received following injuries:- 1. Abrasion 2x 2 at left wrist 2. Abrasion 6 x 2 middle 1/3 of left forearm 3. Lacerated 1 x 1 x 1 right shoulder 4. INcised 2 x 1/2 x 1 right shoulder Accused Jarina vide injury report (Ex. D. 11a) received following injuries:- 1. Swelling lower 1/3 part of forearm. 2. Lacerated 1 x 1 x 2 mid parietal. 3 Swelling 4 x 2 right shoulder 4. Bruise 6 x 4 left thigh Accused Akbari vide injury report (Ex. D. 12a) received one swelling 6 x 4 cm on upper end of right shoulder. Accused Hamid vide injury report (Ex. D. 13a) received following injuries:- 1. Abrasion 3 x 2cm left forearm 2. Tender 4 x 3 right parietal Accused Himmat vide injury report (Ex. D. 14a) received following injuries:- 1. Lacerated around the terminal phalynx of thumb left 2. Lacerated 2 x 1/2 x 1/2 index finger 3. Lacerated 3 x 1/2 x 1/2 little finger 4. Abrasion 2 x 1 5. Lacerated 4. 5 x 2 x 2 right parietal Accused Ruzdar vide injury report (Ex. D. 15a) received following injuries:- 1. Lacerated 1 x 1 x 1 right knee joint 2. Tender 4 x 3 left knee Accused Hazar Khan vide injury report (Ex. D. 16a) received following injuries:- 1. Swelling 4 x 2 mid line parietal 2. Tender lower incisor teeth. Supporting the facts incorporated in the FIR Deenu (PW. 1) in his deposition stated that on the fateful day around 7-8 AM he, Paltu, Sheru, Sahab Khan, Noor Mohammad and Ali Mohammad were going to plough the field they were surrounded near Dagra by Buddhi, Rashid, Hamid, Hajar, Himmat, Majid, Ashraf, Sapat and Ruzdar. Hamid Had Pharsi, Himmat had spear and others had lathis. They started beating them. Hamid gave stone-blow on his left hand, Himmat gave stone blow on his head and lip. Buddhi inflicted lathi blow on the eye of Paltu. Sapat inflicted lathi blow on head and others also gave beating. Ruzdar, Idrish, Samsuddin and Kantuli came to save them. Shakoor and Gafoor inflicted lathi blows on the head of Kantuli, as a result of which she fell down. After five minutes of the incident while his uncle Saltu was going to village from the well, he was also belaboured by Buddhi, Hanif Hamid, Himmat and Abdul Rahim. Abdul Rahim inflicted pharsi-blow on the head of Saltu. Hamid inflicted pharsi-blow behind the left ear and Buddhi inflicted lathi blow on his head. Believing Saltu dead the accused fled away. Testimony of Deenu gets corroboration from other eye witnesses examined by the prosecution. It is contended by the learned counsel for the appellants that the incident did occur in the field of accused party and the factum of accused party having sustained serious injuries including those on vital parts of the body was well established but the injures on the person of the accused have not been explained by the prosecution witnesses, therefore the prosecution story should have been discarded. In our opinion such a submission cannot be accepted. In State of U. P. vs. Mukunde Singh (1994 (2) SCC 191), it was indicated that merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of the prosecution witnesses ought not to be rejected outrightly; if the court finds it probable that the accused might have acted in exercise of right of self defence, the court ought to proceed to consider whether they have exceeded the same. In Takhaji Hiraji vs. Thakore Kubersing Chamansing (2001 (6) SCC 145), the Apex Court held that the court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting the prosecution case in its entirety for non explanation of the injuries sustained by the accused is erroneous. The Apex Court observed thus:- (Para 17) "it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non explanation of injuries assumes greater significance when the evidence consists of interest or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. " ;