SINGH, J. - (1.) IN these two appeals, appellants have challenged the judgment dated April 2, 2003 of the learned Sessions Judge, Karauli, whereby appellants Shabbir and Saheed @ Saeeyo @ Tonta were convicted and sentenced as under: u/s. 302/34 IPC, to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. u/s. 392 IPC, to suffer rigorous imprisonment for 5 years and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. u/s. 460 IPC, to suffer rigorous imprisonment for 7 years and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. All the sentences were ordered to run concurrently.
(2.) ACCORDING to the prosecution case, informant Gulab Singh Rajput R/o Indra Colony, Karauli lodged a written report (Ex. P. 1) at Police Station Karauli on Jan 23, 2001 at 3. 35 AM whereby he informed that on the intervening night of 22 and 23 of January, 2001, unknown miscreants entered into the house of his younger brother Devi Singh. When the miscreants were taking away the stolen articles, Devi Singh's daughter's son Ravi Singh awoke and tried to catch hold the miscreants. One miscreant opened fire which hit him on his left chest causing his death at the spot. The dead body of Ravi Singh was kept in Hospital at Karauli. The miscreants succeeded in stealing one box from the house. The list of stolen articles could be furnished by Devi Singh later on. On the aforesaid report, a case for the offences under Sections under Sections 460 and 380 IPC was registered. Investigation was entrusted to Jal Singh Choudhary, SHO, who had already proceeded to the place of occurrence from the police station. The investigation commenced and after due investigation, challan was filed against the present appellants while the investigation against two other accused persons Iliyar @ Iliyas and Awasar, was kept pending under section 173 (8) Cr. P. C. In due course, the case was committed and came to be tried by the Sessions Judge, Karauli and the appellants were chargesheeted for the offences under Sections 302/34, 392 r/w 397 and 460 IPC. The accused appellants pleaded not guilty and claimed to be tried. The prosecution examined as many as 17 witnesses, namely Gayatri Devi (PW. 1), Gulab Singh (PW. 2), Devi Singh (PW. 3), Mani Ram (PW. 4), Ram Prasad (PW. 5), Gulabi Devi (PW. 6), Meena Kumari (PW. 7), Heera Singh (PW. 8), Wahid Khan (PW. 9), Dr. Pritam Chandra Gupta (PW. 10), Yashpal (PW. 11), Jamit Ahmed (PW. 12), Bulaki (PW. 13), Pancham Singh (PW. 14), Prem Chand (PW. 15), Shri Hari Mohan Gupta (PW. 16) and Jal Singh (PW. 17 ). The statements of accused appellants under section 313 Cr. P. C. were recorded. In their statements, the appellants stated that they have been falsely implicated and after their arrest they were subjected to physical torture and they were also shown to the witnesses by the police while in police custody. Appellant Shabbir also stated that he was brought from Jaipur as he used to work there as labour since last 6-7 years. In support of his aforesaid defence, appellant Shabbir has also examined himself as DW 1 under section 315 Cr. P. C. and DW 2 Sagir Khan (his brother) as also DW 3 Suleman. While DW 4 Hamid Khan (elder brother of appellant Sahid) has been examined in defence on the point that he lived in his village and earned his livelihood as a labour. The learned trial Judge on hearing final arguments, convicted and sentenced the accused appellants as indicated hereinabove.
(3.) HAVING scanned the material on record, we find that the death of Ravi Singh aged about 16 years was homicidal in nature. As per post mortem report (Ex. P. 25), the following ante mortem injuries were found on the dead body: 1. Oblique fire arm wound with lacerated wound margin with color of abrasion with blackening and tattooing 1 cm x 1cm x depth leading inside and left thoracic cavity (skin, muscle, lung, heart with fracture of 6th left rib in space of 6-7 inter costal space) on anterior surface of left side of chest below 5 cm of let nipple. Injury is instantaneously dangerous to life by fire arm weapon, ante mortem in nature and is sufficient to cause death in ordinary course of life. On dissection :- There is fracture of left 6th rib with lacerated pleura in between 6 and 7 rib with laceration of pleura with laceration of left ventricle of heart 4 cm x 4 cm left muscle deep with laceration of both upper and lower ribs of left lung 4 cm x 4 cm with exit wound in left lower lobe along. Thoracic cavity in full of liquid dark red blood and clotted blood and after making out that liquid blood the bullet was found behind the lung particular part of thoracic cavity. 2. Two abrasions with clotted blood 4 cm x 1/2 cm on mid fore-head. 3. Abrasion with clotted blood 1 cm x 2 mm on left fore- head. 4. Multiple abrasions 4 cm x 2mm on right elbow joint and right lower and upper 1/3rd part obliquely placed. 5. Abrasion 2 cm x 1 cm on right side of face upper part with clotted blood. 6. Abrasion with clotted blood 2 cm x 2 cm left side of face maxillary region. 7.Abrasion 2 cm x 1/2 cm on outer surface of left hand. All abrasions are simple blunt ante mortem in nature and all injuries are within 12 to 18 hours duration. In the opinion of members of Medical Board the cause of death of Shri Ravi Singh Chauhan is due to shock resulting from external and internal hemorrhage by injury No. 1 by fire arm weapon causing injuries to heart and left lung etc. All the injuries were ante mortem in nature and according to the autopsy conducted by Dr. Pritam Chandra Gupta (PW. 10), the cause of death was due to shock resulting from external and internal hemorrhage due to injury No. 1 caused by fire arm damaging heart and left lung. We have given our anxious consideration to the submissions advanced before us and carefully scrutinished the record. While advancing submissions on the point of identification of accused appellants, the learned counsel for the appellants have cited Bollavaram Pedda Narsi Reddy and Others vs. State of Andhra Pradesh (1991) 3 SCC 434, State of M. P. vs. Ghudan (2003) 12 SCC 485 and State of Rajasthan vs. Netrapal & Ors. (2007 CRI. L. J. 1783 ). While the learned Public Prosecutor has cited Ramanathan vs. The State of Tamil Nadu (AIR 1978 SC 1204) and Bharat Singh vs. State of U. P. (AIR 1972 SC 2478 ). ;