SHYAM SUNDER BYAS, J. - (1.) THE appeal is directed against the judgment of the learned Additional Sessions Judge, Sirohi dated August 25, 1981 convicting and sentencing the three appellants as under: S. No. Name of accused Offence under Section Sentence awarded(1) Dilbag Singh 302, IPC Imprisonment for life and a fineof Rs. 200/ -;326, IPC Rigorous imprisonment for threeyears and a fine of Rs. 100/ -; 324, IPC Two year's rigorous imprison -ment;25, Arms Act Six month's RI;27, Arms Act One year's RI;(2) Smt. Dilip Kaur 326/34, IPC Three year's rigorous imprison -ment and a fine of Rs.100/ -;(3) Chhinderpal Singh 326/34, IPC Three year's rigorous imprison -ment and a fine of Rs. 100/ -.; 323, IPC Two month's rigorous imprison -ment.
(2.) BRIEFLY stated, the prosecution case is that the deceased -victim Uma was the brother of PW 4 Soniya and son of PW 27 Tola. Tola has some more sons. They all were living jointly in village Bharundha PS Sumerpur Dist. Pali. They and some persons own a 'Bera' (well) with agricultural lands. Accused Dilbag Singh purchased a few fields of this Bera from some of the joint owners (other than the aforesaid persons) and was cultivating them. This led to disputes between Tola and the accused, resulting in civil and criminal litigations between them. Accused Dilbag Singh along with his wife Smt. Dilip Kaur and son Chhinderpal Singh was also living in village Bharunda in a house which he had taken on rent from PW 15 Ganga Singh. At about 7.00 or 7.30 p.m. on March 14, 1979, PW 4 Soniya and his deceased brother Uma were returning to their house. Soniya was a few steps ahead of Uma. When they happened to pass out side the house of the appellants, the appellants caught hold of Uma and forcibly took him in their house. Soniya rushed to his house and informed his father and brothers. A few gun shots were heard from the house of the accused persons. Many persons collected there. Soniya, his father Tola, his brothers Chimna and Tima came to the house of the accused and found its door bolted from inside PW 2 Galba climbed ever the wall of the house of Pukhraj. A shot was fired at him from the house of the accused, as a result of which Galba sustained injuries and he fell down. Many persons collected out -side the house of the accused. After some time, the doors of the accused's house were opened and the appellants came out. Accused Dilbag Singh and Chhinderpal Singh, some how or other, managed to escape. While escaping, accused Dilbag Singh fired a shot from his gun, which hit PW 3 Dwarka Das who was sitting on the Chabutari of a temple situate nearby the house of the accused. Accused Smt. Dilip Kaur, however, could not escape and she was detained by those who were present in the street. She was given a beating by thee persons. Soniya, Tola and others found that Uma was lying dead in the house of the appellants. Tola went to Police Station, Sumerpur and verbally lodged report Ex. P 29 of the incident at about 00.15 a m. on March 15, 1979, that is to say, within a few hours of the incident. The police registered a case under Sections 302, 307 etc. of the Penal Code and proceeded with investigation The Station House Officer Harisingh (PW 35) arrived on the spot, inspected the site and prepared site plan Ex. P 10. He also prepared the inquest of the victim's dead body. On the scene of the occurrence he found bloodstained soil, fired and live cartridges, pellet, wads and some other articles. He seized and sealed them. The post -mortem examination of the victim's dead body was conducted at about 1.30 p.m. on March 15, 1979 by PW 30 Dr. B.S. Deora. He found as many as 14 ante -mortem injuries on the victim's deadbody, as described in the post -mortem examination report Ex. P 31. In the opinion of Dr. Deora, the cause of the death was syncope due to extensive haemorrhage, asphyxia, due to internal haemorrhage in right side of lung and shrinking of right lung - caused by penetrating gun -shot wounds on right side of chest (injury No. 14 of chest). He was further of the opinion that injury No. 14, 2(3), 2(4), 2(5) and 3 were caused by gun shots while the rest were caused by some blunt object like lathi. Injury No. 14 was found sufficient in the ordinary course of nature to cause death.
(3.) DR . Deora further examined the injuries of PW 3 Dwarka Das. He found two injuries which could be caused by a gun shot. The injury report prepared by him is Ex. P 5 Dr. Deora also examined the injuries on the person of PW 7 Chamna and found two lacerated wounds caused by some blunt object like lathi. Both were simple. The injury report issued by him is Ex. P 13. The injuries of PW 2 Galba were examined on March 15, 1979 by PW 1 Dr. Barmera. He noticed as many as ten injuries on his person, all of which were caused by gun -shot. On X -ray examination, five fractures were detected. The injury report issued by him is Ex. P 2. The appellants were arrested and in consequence of the informations furnished by accused Dilbag Singh, gun was recovered. On scientific examination, the empty cartridges collected on the spot were found to have been fired from the gun recovered from and at the instance of accused Dilbag Singh. After when the investigation was over, the police presented a crime report against the three accused Dilbag Singh, Smt. Dilip Kaur and Chhinderpal Singh in the Court of Munsif cum Judicial Magistrate, Bali, who, in his turn, committed the case for trial to the Court of Sessions. The learded Sessions Judge framed charges under Sections 364, 302, 307, 323/34, IPC and Sections 25 and 27 of the Arms Act against accused Dilbag Singh and under Sections 364, 302/34, 307/34 and 323/34, IPC against accused Smt. Dilip Kaur and Chhinderpal Singh, The accused pleaded not guilty and faced the trial. In their statements recorded under Section 313, Cr. PC, a counter version of the incident was advanced by them. According to them, the deceased Uma, his father and brothers and some other persons entered their house and made an assault on them, causing numerous injuries to all of them. They also fired shots at them (accused persons). The police had presented only a lope sided and truncated version supressing the real facts. On the conclusion of the trial, the learned Sessions Judge accepted the prosecution story as substantially true and held that the gun was fired by accused Dilbag Singh. He, however, held that accused Smt. Dilip Kaur and Chinderpal Singh could not be convicted under Section 302 with the aid of section 34, IPC. He also took the view that though Uma was forcibly dragged inside their house by the appellants, it did not amount to an offence under Section 364, IPC. He further took the view that as the accused Dilbag Singh was being convicted under Section 302, IPC, even if the offence under Section 364, IPC was made out against him, it was not necessary to convict him for the offence of abduction. The appellants were consequently convicted and sentenced as mentioned at the very out -set. Aggrieved against their convictions, the accused have taken this appeal.;