SHARMA, J. - (1.) CHALLENGE in these two appeals is to the judgments dated December 17, 1999 and April 13, 2004 rendered respectively by learned Additional Sessions Judge No. 1 Sikar and Additional Sessions Judge (Fast Track) No. 2 Sikar. Since both the judgments relate to one incident occurred on August 15, 1998, we proceed to decide these appeals by a common judgment. Appellants Bajrang Lal, Har Lal and Mangi Lal were tried together in Sessions Case No. 1/1999 and they were convicted and sentenced as under:- u/s. 147 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 200/- in default to further suffer rigorous imprisonment for one month. u/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 200/- in default to further suffer rigorous imprisonment for one month. u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer rigorous imprisonment for six months. u/s. 324/149 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 200/- in default to further suffer rigoruous imprisonment for one month. u/s. 323 IPC: Each to suffer simple imprisonment for six months. The substantive sentences were ordered to run concurrently. Investigation against appellants Rajkumar and Indraj was kept pending under Section 173 (8) Cr. P. C. They were nabbed subsequently and convicted and sentenced in Sessions Case No. 24/2002 thus:- u/s. 147 IPC: Each to suffer rigorous imprisonment for one year. u/s. 148 IPC: Each to suffer rigorous imprisonment for one year. u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/- , in default to further suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently. Since during the pendency of appeals appellants Har Lal and Mangi Lal died, their appeals stand abated.
(2.) IT is the prosecution case that on August 15,1998 around 11. 30 AM while Tara Chand (now deceased) was returning from the school, he was belaboured on the way near the well by the appellants and beaten up with deadly weapons. He was removed to the hospital where he was declared dead. Informant Bhagirath lodged a written report at Police Station Raghunath Garh, where a case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body of Tara Chand was subjected to autopsy. Necessary memos were drawn. Statements of witnesses were recorded. The appellants Mangi Lal, Harlal and Bajrang Lal were arrested and on completion of investigation chargesheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Sikar. Charges under Sections 147, 148, 302 alternatively 302/34, 324, 324/149 and 323 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec. 313 Cr. PC. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants Mangi Lal, Har Lal and Bajrang Lal as indicated herein above. The investigation was kept pending against appellants Raj Kumar and Indraj and they were arrested subsequently. In a separate trial they were convicted and sentenced as narrated above. Death of Tara Chand was undeniably homicial in nature. As per post mortem report (Ex. P. 15a) following ante mortem injuries were found on the dead body:- 1. Lacerated wound 6 x 1/4 x deep bone mouth chin. 2. Lacerated wound 4 x 1/4 x deep bone upper lip. 3. Lacerated wound irregular 4 x 1/2 x deep lower lip. 4. Incised wound 4 x 1/2 x deep done chin. 5. Incised wound 6 x 1/4 x deep bone Lt. forehead. 6. Incised wound depressed 7 x 1/2 x deep bone both eye brows covering eye ball. 7. Incised wound 4 x 1/2 x deep bone bride of nose. 8. Incised wound 6 x 1/2 x deep bone Rt. temporal region on scalp. 9. Incised wound 4 x 1/4 x 1/2 cms. Lt. frontal region on face. 10. Bruise with swelling 1 1/2 x 1. 2 cms mid of Lt. sine bone. 11. Lacerated wound 4 x 1/4 x 1/2 cm mouth upper jaw face & canine missing. 12. Lacerated wound 4 x 1/2 x 1/2 cm lower jaw fuacor & canine missing. In the opinion of Autopsy Surgeon Dr. T. S. Chaudhary the cause of death was shock due to heavy loss of blood from multiple wounds and depressed skull. We have heard the submissions advanced before us and closely scrutinised the material on record. The prosecution case is founded on the testimony of informant Bhagirath (PW. 1) Onkar (PW. 2), Parmeshwar (PW. 3), Jagdish (PW. 5) and Har Lal (PW. 20 ). Out of these witnesses Har Lal is the injured eye witness. In his deposition Har Lal stated that while he along with Tara Chand and Bhagirath was coming back from the school, five six persons met them near the tank of water works. Shri Ram, Mangi Lal, Bajrang Lal and Har Lal were amongst them. They were armed with Pharsi, Gandasi, Dantli and Lathi. About Raj Kumar and Indraj, this witness said in the trial Court that he was not sure whether they were with the assailants or not. According to him Shri Ram inflicted Pharsi blow on the head of Tara Chand, Mangi Lal also caused injury on the head of Tara Chand with Gandasi. Bajrang Lal gave blow with Dantli on the face and Shri Ram, again caused blow with Pharsi on his head. When he (Har Lal) raised alarm, Bhagirath rushed to the spot. He was declared hostile by the prosecution. In his cross examination he stated that Bhagirath and other witnesses came rushing from the village and he did not go to police to inform about the incident. Strangely informant Bhagirath (PW. 1) in the written report (Ex. P. 1) did not mention any thing about Har Lal (PW. 20 ). He even did not say that he was accompanying Tara Chand. As per written report Tara Chand while coming back from the school was alone. Bhagirath did not assign overt act to any of the accused. He only levelled general allegations. As per his statement made to the police under Section 161 Cr. P. C. (Ex. D-1) to which he was confronted during trial, he however stated thus:-
(3.) ....Vernacular Text Ommited.... Onkar (PW. 2), Parmeshwar (PW. 3) and Jagdish (PW. 5) in their examination in chief toed the prosecution line but in the cross examination their evidence stood shattered and a doubt about their presence at the time of incident creeps in mind. Factual situation that emerged from the material on record, may be deduced thus:- (i) Informant Bhagirath after drawing the report of incident in the village, had gone to the police station, but the police declined to register the report, Bhagirath then went to the hospital and handed over the report to SHO, who was present in the hospital. (ii) Har Lal, the injured eye witness was not named by Bhagirath in the FIR, as eye witness. Presence of Har Lal was not shown in the FIR. (iii) Har Lal was declared hostile by the prosecution. (iv) Onkar, Parmeshwar, Jagdish and Bhagirath, the alleged eye witnesses of the occurrence, did not receive any injury. (v) The fact that the deceased was involved in many criminal cases was not denied by Jinku Ram, IO (PW. 21 ). (vi) Informant Bhagirath in his police statement stated that on hearing alarm he reached to the place of incident, till then Tara Chand had already been beaten up. (vii) At the trial Har Lal the injured eye witness did not name Indraj and Raj Kumar as assailants. ;