SHARMA, J. - (1.) CHALLENGE in this appeal is to the judgment dated May 24, 2004 of the learned Additional Sessions Judge (Fast Track) Kaman whereby the appellants, nine in number, were convicted and sentenced as under:- Appellants Islam, Iliyas, Haroon, Aas Mohammad, Ramazan and Muniya: U/s. 148 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 323 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 325/149 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Appellants Saboo and Bhuru: U/s. 148 IPC: Both to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 323 IPC: Both to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 325/149 IPC: Both to suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 302 IPC: Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Appellant Kallu: U/s. 148 IPC: To suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 323 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 325 IPC: To suffer rigorous imprisonment for Seven years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 302/149 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.
(2.) AS per the prosecution story on November 11, 1992 SHO Police Station Kaman recorded parcha bayan (Ex. P-10) of Smt. Maina (Pw. 9) wherein she stated that because of fishing dispute she had to leave her village. She proceeded for village Hathiya on November 10, 1992 around 9 PM in a bullock-cart along with her Devar (husband's brother) Haroon and Nandoi (sister-in-law's husband ). On the way they were belaboured by the appellants. Sabu (appellant) inflicted Pharsi-blow on the head of Haroon whereas Bhuru (appellant) and Deenu (absconded during trial) who were armed guns, opened fire. When she made attempt to intervene she was also beaten up. Haroon died on the spot. On that Parcha Bayan a case under sections 147, 148, 149, 307 and 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded and after completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Kaman. Charges under sections 147, 148, 325/149, 323, 302, 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 11 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Three witnesses in support of their defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Having weighed the material on record with the assistance of learned Senior counsel, learned Public Prosecutor and learned counsel for the complainant we notice that death of Haroon was homicidal in nature. As per Post Mortem Report (Ex. P-11) following ante mortem injuries were found on the dead body:- 1. Incised wound 3-1/2 x 1" x bony deep with or parietal bone over left side of skull 2. Incised wound 3" x 1" x bony deep temporal bone over left side of skull 3. Lacerated wound 2-1/2 x 1" x 1/4" over occipital area of skull. Facial region 1. Gun shot wound of entrance, oval shaped size 1-1/2 x 1- 1/4 blackening, tattooing present over left side face below the ear 2. Lacerated wound 1-1/2" x 1" x deepness communicating no Tattooing over right side eye. Left shoulder 1. Wound of entrance 11/2 x 1-1/4 oval shaped no blackening no tattooing present over upper part of left shoulder supra scapular region. 2. wound of exit gun shot wound on scapular upper joints 2" x 1-1/2" over area above the left clevical. In the opinion of Dr. Mangal Ram (Pw. 11) the cause of death was syncope due to excessive hemorrhage caused by head injury and fire arm injury both. Informant Smt. Maina (Pw. 9), Bhikari (Pw. 2) and Deenu (Pw. 6) were examined as eye witnesses of the occurrence by the prosecution. Before analysing their testimony we deem it appropriate to scan the evidence of Jeewan Singh SHO (Pw. 12) who investigated the case. In his deposition Jeewan Singh stated that on receiving telephonic information at 7. 30 AM that a person was lying dead in between villages Bhilag and Angrawali, he rushed to the spot and found that Maina was sitting near the dead body of Haroon. Statements of Maina were recorded and formal memos got drawn. In his cross examination when Jeewan Singh was questioned that Ishab @ Geedad, who was the husband of Maina, was a known dacoit and he was killed in encounter, Jeewan Singh expressed his ignorance. Informant Maina (Pw. 9) in her examination in chief stated that first fire was opened by Deenu and second got opened by Bhuru. In her cross examination she admitted that her husband Geedad was killed by villagers. She also stated that Sabu inflicted Pharsi-blow on the person of Haroon. Bhikari (Pw. 2) and Deenu (Pw. 6) did not support the prosecution story. From the material on record following fact situation arises:- (i) Incident occurred very late in the night. (ii) Out of the three eye witnesses, two did not support the prosecution case and they were declared hostile. (iii) Ishab @ Geedad (husband of informant Smt. Maina) a known dacoit, was already killed by the villagers, prior to the incident. Deceased Haroon, being younger brother of Ishab, did have inimical relations with many persons. (iv) The evidence of Smt. Maina has been found consistent with regard to participation of accused Bhuru, Saboo and Deenu (absconded during trial ).
(3.) THERE was a considerable doubt in the instant case whether Islam, Iliyas, Haroon, Aas Mohammad, Kallu, Ramzan and Muniya were present on the scene at all. Having separated truth from the falsehood, we find the testimony of Smt. Maina (Pw. 9) consistent qua Bhuru, Saboo and Deenu only. Possibility of over implication of other accused cannot be ruled out. For these reasons, we dispose of instant appeal in the following terms:- (i) We allow the appeal of appellants Islam, Iliyas, Haroon, Aas Mohammad, Kallu, Ramzan and Muniya and set aside their conviction and sentence under sections 148, 302/149, 323, 325 and 325/149 IPC. We acquit all of them of the said charges. Appellants Islam, Iliyas and Aas Mohammad are on bail, they need not surrender and their bail bonds stand discharged. Appellants Haroon, Kallu, Ramzan and Muniya, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case. (ii) Appeal of appellants Bhuru and Saboo stands dismissed and we convict and sentence them under section 302 read with 34 IPC to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer three months simple imprisonment. We however acquit them of the charges under sections 325/149, 148 and 323 IPC. (iii) The impugned judgment of learned trial court stands modified as indicated above. .;