MOHAMMAD RAFIQ, J. - (1.) This appeal is directed against judgment dated 28.03.2007 passed by Additional Sessions Judge, Ramganjmandi, District Kota (for short 'the trial court') whereby accused-appellants Gopal and Khadak Singh have been convicted for offence under Section 302 IPC simplicitor and sentenced to life imprisonment with fine of Rs. 1,000/-, in default whereof, they were to further undergo one month's simple imprisonment. They have been further convicted for offence under Section 324/34 IPC and sentenced to one year's rigorous imprisonment. The trial court has convicted accused-appellant Kalyan for offence under Section 302/34 IPC and sentenced him to life imprisonment with fine of Rs. 1,000/-, in default whereof, he was to further undergo one month's simple imprisonment. He has been further convicted for offence under Section 324 IPC and sentenced to one year's rigorous imprisonment. All the sentences were ordered to run concurrently.
(2.) Facts of the case are that FIR No. 102/2004(Exhibit P-7) was registered on the basis of oral report of Shyam Manohar(P.W.6) resident of Ramganjmandi against the accused-appellants and certain other persons. It was alleged in the report that on 11.06.2004 at 7.30 P.M., when the informant was sitting on his shop, accused-appellants along with some other persons, having lathies and sword in their hands, came and inflicted sword blows on Prahlad, younger brother of the informant, who sustained injuries thereof on right hand and his ankle was amputated. Ramesh and Phool Chand inflicted lathi blows on the person of the informant, injuries of which were sustained by him on ankle of right hand, back and thigh of right leg. Gopal Kumhar caught hold of father of the informant and dragged him to well. With the intention to murder, all started beating him. He sustained head injuries and became unconscious. All the accused have subjected informant and his father to beating at the instigation of Gopal Kumhar. Prior to this incident, calf of informant was hit by driver, who was resident of Kumbhcourt, dispute of which was compromised. The informant took his father and brother in jeep to hospital at Ramganjmandi for treatment. Initially, FIR was registered for offences under Sections 143, 341, 323 and 307 IPC but subsequently, father of the informant, Khuman Singh died and offence under Section 302 IPC was added. The accused-appellants were arrested and they were enlarged on bail. After completion of investigation, the police submitted charge sheet against the accused-appellants and six others. The trial court framed charges against the accused-appellants and others under Sections 147 or 148, 302 or 302/149, 326 or 326/149, 325 or 325/149 and 323 IPC, which they denied and claimed to be tried. In support of its case, the prosecution examined as many as 28 witnesses and exhibited 42 documents. Thereafter, accused-appellants were examined under Section 313 Cr.P.C., 1973 who pleaded innocence and stated that they have been falsely implicated in the case. In defence, two witness were produced and four documents were got exhibited. The trial court, on conclusion of trial, vide judgment and order dated 28.03.2007 acquitted accused namely Ramesh Chand; Roop Chand; Gopal son of Bhawani Lal; Jagdish; Phool Chand; Vinod Kumar, however, convicted and sentenced the accused-appellants in the manner indicated here-in-above. Hence, this appeal.
(3.) Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of accused-appellant Gopal Kumhar and Mr. Santosh Kumar Jain, learned counsel appearing on behalf of Khadak Singh and Kalyan argued that the leaned trial court erred in relying upon the testimony of prosecution witnesses, which is full of inconsistencies, contradictions and improvements. Genesis of the incident has been suppressed by the prosecution. Prosecution witnesses have changed their version at different stages and such witnesses cannot be treated as credible and reliable witnesses. Chaturbuj(P.W.9); Ramkishan(P.W.10); Gopal Dhakad(P.W.11); Chatru(P.W.12); Raghunath(P.W.15); Ram Prasad(P.W.16) and Deepekar Rai(P.W.23) have not supported prosecution case and turned hostile. Statements of Balram(D.W.1) and Ramkaran(D.W.2) have wrongly been ignored by the trial court. These witnesses have spoken truth about the incident. Initially, First Information Report was lodged against four named accused whereas challan was filed against nine accused, therefore, the prosecution has enlarged scope of the dispute enormously and falsely implicated as many accused as possible. It is argued that recovery of weapons have been made from open place. First Information Report in this regard is totally concocted and fabricated. The trial court has not attached any value to the statements of defence witnesses whereas they are entitled to the same treatment as was given the prosecution witnesses. Examination of the accused-appellants under Section 313 Cr.P.C., 1973 has not properly taken place and all the incriminating circumstances were not put to the accused-appellants. It is argued that there was no enmity between Kalyan and Prahlad.;