SHARMA, J. - (1.) THE appellants, six in number, were put to trial before learned Additional Sessions Judge (Fast Track) No. 2 Dholpur, who vide judgment dated February 13, 2002 convicted and sentenced them as under:- Appellant Rajesh: U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 3000/-, in default to further suffer six months simple imprisonment. U/s. 307 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. U/s. 324/149 IPC: To suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 323/149 IPC: To suffer rigorous imprisonment six months and fine of Rs. 300/-, in default to further suffer simple imprisonment for fifteen days. U/s. 325/149 IPC: To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. U/s. 148 IPC: To suffer rigorous imprisonment for two years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. Appellants Bangali, Jogesh, Dinesh, Omi @ Om Prakash and Sarvesh: U/s. 302/149 IPC: Each to suffer life imprisonment and fine of Rs. 3000/-, in default to further suffer six months simple imprisonment. U/s. 307/149 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. U/s. 324/149 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 323/149 IPC: Each to suffer rigorous imprisonment six months and fine of Rs. 300/-, in default to further suffer simple imprisonment for fifteen days. U/s. 325/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. U/s. 148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. The substantive sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on July 16, 1992 at 11. 15 PM Parmatma Prasad ASI (Pw. 19) of Police Station Kotwali Dholpur reached Sadar Hospital Dholpur and recorded statement of Kalla (Pw. 4), who was admitted in an injured condition. It was inter alia stated by Kalla in Parcha Bayan (Ex. P-10) that in the evening he had gone to the house of Dongar Tyagi and demanded money borrowed by Dongar Tyagi from him but Dongar Tyagi bluntly refused to make payment and hurled abuses at him. He got frustrated and came back to his well where Ramveer, Gopal and Pancham were already sitting. Soon thereafter Dongar Tyagi, Rajesh, Sarvesh, Omi, Dinesh and Bangali came to the well and surrounded him. Rajesh opened fire at him, but he some how escaped and fire hit Biram Devi, who was passing on the road. She fell down and died instantly. Kalla further stated that Rajesh opened another fire that hit below his right shoulder and palm. Mahesh and Ramji were also given beating with Pharsa, lathi by the assailants. On that Parcha Bayan a case under sections 147, 148, 149, 302, 323 and 324 IPC was registered and investigation commenced. Autopsy on the dead body was performed, site was inspected, necessary memos were drawn, statements of witnesses were recorded, 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 (Fast Track) No. 2, Dholpur. Charges under sections 148, 302, 302/149, 307, 307/149, 324/149, 323/149, 325/149 and 342 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 19 witnesses. In the explanation under Sec. 313 Crpc, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have heard learned counsel for the appellants and learned Public Prosecutor and with their assistance scanned the material on record. Deceased, named as Biram Devi in FIR, was in fact Charan Devi and as per Post Mortem Report (Ex. P-15) following ante mortem injuries were found on the dead body:- 1. Punctured wound five in number over Rt. side chest 0. 2cm x 0. 2cm oval in shape inverted margin (in upper 2/3rd )2. Punctured wound over Rt. shoulder 0. 2cm x 0. 2cm oval in shape inverted margin 3. Punctured wound over sternum in upper 1/3rd 0. 2cm x 0. 2cm 4. Punctured wound two in no. over Rt. forearm, in middle 1/3rd posterior lateral aspect parallel to each other 0. 2cm x 0. 2cm 5. Punctured wound on Lt. side chest below breast 0. 2cm x 0. 2cm oval, inverted margin In the opinion of Dr. Ramesh Chand Pipesh (Pw. 5) the cause of death was hemorrhagic shock due to gunshot injury to vital organs of the body. Having closely weighed the material on record we find that Ramveer (Pw. 16) Gopal (Pw. 13) and Pancham (Pw. 14) who were named as eye witnesses of the occurrence, did not support the prosecution case and they were declared hostile. Kalla (Pw. 4), who sustained injuries during the incident and on whose testimony the prosecution heavily relied its case, completely changed the prosecution story. At the outset of his testimony he deposed that he had no quarrel with the appellants:- ....Vernacular Text Ommited.... Giving details of the incident Kalla stated that Rajesh who was armed with a gun belaboured Ramji in front of the house of Asha Ram and Pat Ram. Sarvesh also had a gun whereas Dinesh, Bangali and Omi had lathis. While Ramji was given beating with lathis and he (Kalla) was 20-25 steps away, Rajesh opened fire at him but he somehow saved himself and gunshot hit Charan Devi who died on the spot. Rajesh opened another fire and caused injuries over his shoulder and palm. Thereafter gun was broken and snatched by Rajveer and Hajari. In the cross examination when he was confronted with his Parcha Bayan (Ex. P-10), he deposed that he did not say anything about Dongar Tyagi. He further stated that except Parcha Bayan police did not record his statement:-
(3.) ....Vernacular Text Ommited.... He further stated that when Ramji reached near the house of Asha Ram, Rajesh met him and Ramji and Rajesh quarreled in front of the house of Asha Ram. He too did reach there. Rajesh and other assailants surrounded him at the well and this fact was wrongly mentioned in Parcha Bayan (Ex. P- 10. According to him the incident, in fact did occur at Jatav Mohalla:- ....Vernacular Text Ommited.... Pat Ram (Pw. 1), in front of whose house alleged incident occurred, gave new twist to the prosecution story. According to him while Rajesh, Mahesh and Ramji scuffled, the gun suddenly got fired:- ;