G. K. SHARMA, J. - (1.) ALL the three appeals have been directed against the judgment dt. 7th August, 87 passed by the Addl. Sessions Judge. No. 2, Alwar, whereby convicting and sentencing each appellant as under:- Hakumat Rai U/s. 201 I. P. C: Life Imprisonment and a fine of Rs. 100/- and in default of payment of fine to undergo one month's R. I. U/s. 324 read with Sec. 34 I. P. C:- Two years' R. I. and a fine of Rs. 200/- and in default of payment of fine to further undergo two month's R. I. Lekh Raj and Kailash: U/s. 302/34 I. P. C. Life Imprisonment and a fine of Rs. 100/- each and in default of payment of fine, to further undergo two month's R. I.
(2.) IN this Sessions Case 10 persons including the appellants were prosecuted in various offences. All the accused-persons, were tried belong to one family and attempt has been made by the complainant party to implicate all the male-members of one family. According to the prosecution case a Parcha Bayan of Jahur Khan (PW1) was recorded at 1030 p. m. on 20-6-85 by Shri Gauri Shankar S. H. (X P. S. Ramgarh and on the basis of that Parcha-bayan F. I. R. Ex. P 16 was chalked out. According to this Parcha-bayan the accused, Hakumat Rai, was elected Sarpanch in the last Panchayat election defeating his rival Shri Raja Ram. The complainant-party is said to be the supporter of the defeated candidate Raja Ram. This is the cause of the enmity between the two parties. It is further alleged that on 19th June, lv85 exchange of abuses had taken place over a piece of land where the manure was lying dump, but the matter was pacified on the intervention of Shri Sampat, Jahur Khan and Chahat. It is further alleged that on 20-6-85 all the accused persons surrounded the house of complainant at about 9 a. m. Jahur Khan, PW 1, is alleged to have made a complaint about this fact to the Sub-Inspector, Police Station Ramgarh and the same report has been forwarded to the Head Constable, outpost Nawgaon, which is situated only one kilometer from the village Mohammadpur. It is alleged that the Head Constable had directed the informants Shri Jahur Khan to bring the witnesses in support of his allegations, but he failed to do so. It is further alleged that at 7 p m. on 20-6-85 when Hanif, his brother Jamaluddin and Mst. Bashiri wife of Chahat were in the house and Bashiri was cooking their food while Subba and Ramzan were feeding fodder to the cattle, at this juncture, the accused alleged Hakumat Rai came on the roof of stair-case of the house of Hansraj and standing on the said roof made a gun fire causing injuries to Hanif which resulted in his death. Accused Kishore who is absconding made another gun fire from the way outside the house of the complainant, causing injuries to Mst. Bashiri. One more fire is alleged to have been made by accused Hakumat Rai from the roof of the house of Hansraj causing pellet injuries to Mst. Bashiri. The accusation made against Lekhraj accused was that he made a fire from gun standing near the well causing injuries to Mst Mushi. Kailash accused, according to the Parcha bayan caused injuries to Subba Khan and Ramzan from a gun fire made by him standing near the Gharat. Other accused-persons namely Maharajmal, Pradeep Kumar, Prem Chand and Harish Chand etc, were alleged to have pelted stones causing injuries to the members of the complainant party. It is further alleged that after the incident, PW 6 Rehmat was sent to the Police outpost, Nawgaon to report the matter. Accordingly, Rehmat had gone to Police outpost Nawgaon where he met Incharge Shri Om Prakash and gave him out the entire details of the incident. Shri Om Prakash Incharge of the outpost accompanied by constables came on the spot and also made enquiries from the witnesses and took steps to send the injured persons to the hospital. Subsequently, the S. H. O. Police Station Ramgarh Shri Gauri Shankar reached on the spot and recorded the Parcha-bayan Ex. P 1 of Shri Jahur Khan. On this Parcha-bayan a case was registered at 10. 45 p. m. and the F. I. R. of which is 88/86. The S. H. O. Gauri Shankar inspected the site and prepared site-plan Ex. P 2. The accused-persons were arrested. The accused Lekhraj gave information for the recovery of a licenced gun and cartridges and on the basis of that information Ex. P 45 the gun and cartridges were recovered vide memo Ex P 46. On 21-6-85 the S. H. O. recovered empty cartridges, one broken 'nall of the katta and wooden nut vide memo Ex. P 10. On the information of accused potty of cartridges was recovered vide memo Ex. P 11. Blood-stained clothes were also recovered by the Investigating Officer. The Panchayatnamas of dead-bodies of Hanif and Mst. Bashiri were prepared which are Ex. D 14 and D 15. The articles were sealed and sealed-packets were sent to forensic Science Laboratory for examination. Dr. M. K. Singhal PW 13 examined the injuries of Subba S/o Rehmat Khan, Ramzan S/o Gaffoor and Mushi w/o Kalu Khan. Dr. P. S. Aggarwal examined the injuries of Ramzan s/o Gaffoor Khan, Subba s/o Rehmat Khan, Jamaluddm S/o Kalu Khan and Mst. Mushi w/o Kalu Khan. He also conducted the postmortem on the dead body of Hanif S/o Kalu and found the injuries mentioned in the postmortem report Ex. P 30. In the opinion of the doctor the death occurred due to gun shot injuries on chest with puncture of pleura and left lung with haemorrhage and shock. He also conducted the postmortem on the body of Mst. Bashiri and her external and internal injuries have been mentioned in the postmortem report Ex. P 31. In his opinion death occurred due to gun shot wounds on chest with puncture of left lung, heart with haemorrhage and shock. The doctor also stated that in the ordinary course of nature the injuries were sufficient to cause death. After completing the usual investigation a challan was filed against 10 persons. Kishore was shown absconded. The learned Addl. Sessions Judge framed charges against the accused-person under S. 147. 302/149 307/149, 336 and 120b 1. P. C. He framed charge against Hakumat Rai u/s. 146, 302, 307/ 149 and 120b I. P. C. The accused-persons pleaded not guilty and claimed trial.
(3.) THE prosecution has examined 16 witnesses. Three witnesses were produced in defence. THE learned Addl. Sessions Judge after concluding trial convicted and sentenced the accused-appellants as mentioned above. THE trial Court found no case against accused Naresh Kumar, Hemraj, Mahendra Kumar, Pradeep Kumar, Maharaj Mal, Prem Chand and Harish Chandra and acquitted them from all the charges levelled against them. The State of Rajasthan has preferred the D. B. Cr. Appeal No. 410/87 against the acquittal of the accused-persons and also filed appeal against the appellants with regard to the offences for which they have been acquitted. Shri Ganpat Ram, learned counsel for the appellants argued that in all 7 shots have been fired with the gun of 12-Bore cartridges. Two shots have been fired by Hakumat Rai accused, two shots have been fired by Kailash, two shots have been fired by Kishore and one shot by Lekhraj. According to the prosecution the shots fired by Hakumat Rai hit Hanif and Mst. Bashiri. Kishor's shot hit Mst. Bashiri and Jamaddin. Kailash's shots hit Subba and Ramzan and the shot fired by Lekhraj hit Mst. Mushi. This incident had taken place in the chowk as mentioned in the site-plan Ex. P 2, The shots were fired by Hakumat Rai from the roof of the stair-case of the house of Hansraj. He was standing at the height of about 15-20 feet and at place 'a' in Ex. P. 2 Mst. Bashiri was lying on the cot when Police arrived at the spot. But in the site-plan Ex. P. 2 it has not been mentioned as to where the deceased and injured persons were standing when the gun shots hit them. According to prosecution evidence it was shown in Ex. P2 that Hanif and Mst. Bashiri deceased were lying on cot at such and such place. Hanif was lying on the roof of the room while Mst. Bashiri was lying in the chowk. But the prosecution has not pointed out the places in Ex. P 2 where the gun fire shots hit the deceased and the injured persons. According to him this is a great lacuna in the prosecution case and it is not clear as to where the deceased and the injured were standing when they were hit by gun shots. The learned Public Prosecutor and Shri Mathur learned counsel for the complainant could not reply this argument. He has admitted that in this site-plan Ex. P 2, the places have not been mentioned where the deceased and injured persons were standing and where they were hit with gun shots. We have also considered the arguments advanced by Shri Ganpat Ram learned counsel for the appellants and after seeing the site-plan Ex. P 2, we are also not convinced with the prosecution story that the deceased persons and the injured persons were hit in the chowk shown in Ex. P 2. The Investigating Officer should have pointed out the places where deceased Hanif and Mst. Bashiri were standing as well as other injured persons were standing at the time of gun fire. As in the prosecution evidence that the dead bodies of Hanif and Mst. Bashiri were lying on cot when Police arrived at the spot, is clear from the photos produced by the prosecution which are Ex. P. 3 to Ex. P. 8. Thus, it is clear that after the incident the dead bodies were brought and kept in the chowk. Gaffor PW 8 has stated that Hanif was taken out through stair-case but he was Put on the cot and the cot was lifted with a rope to the roof. It means that Hanif was hit by gun fire at some other place and he was brought on a cot and then kept on the roof We fail to understand why the dead body was removed from the place where gun shot hit Hanif. They should have waited for the arrival of Police and then they could have removed the dead body from the spot. Similarly the dead body of Mst. Bishiri was lying on cot in the chowk at place 'a'. It is not clear as to from which place the dead body of Mst Bashiri was brought At which place the gun shot hit Mst. Bashiri has not proved by the prosecution. So this is a lacuna in the prosecution story. The argument of the learned counsel for the appellants that this lacuna creates doubt in the genuineness and correctness of the story has force. We also are of this opinion that the prosecution should have proved and should have shown in the site-plan Ex. P. 2 the place where the gun shot hit Hanif and Mst. Bashiri and other injured persons. Not proving this fact certainly creates doubt in the correctness of the prosecution story. Similarly, it has not been shown in the site-plan Ex. P 2 as to where the prosecution witnesses who had witnessed the occurrence were standing. This fact should have been mentioned in this site-plan by the Investi-gating Officer. Not mentioning the place of standing of the witnesses creates doubt in the presence of the prosecution witnesses and creates doubt in the story. ;