- (1.) CHALLENGE in this appeal, filed under Section 374 of the Code of Criminal Procedure ('the Code', for short), is to the correctness of the judgment and order dated 19-3-2004 rendered in Sessions case No. 05/2001 (1/2000) by the learned addl. Sessions Judge (Fast Track) No. 1, sirohi.
(2.) BY the impugned judgment and order, appellant No. 1 Sikander Khan (A-1 for short), has been convicted for the offences under Sections 302, 307, 324 and 352 of ipc and has been sentenced to imprisonment of life and fine of Rs. 5. 000/- in default to one year imprisonment under section 302, IPC, seven years R. I. and fine of rs. 5. 000/- in default of payment of fine one year imprisonment. Under Section 307, IPC, one year R. I. and fine of Rs. 1. 000/- in default of payment,of fine one year imprisonment under Section 324, IPC and one month r. I. under Section 352, IPC, whereas appellant No. 2 Zahir Abbas (for short A-2) has been convicted for commission of the offence punishable under Section 302/34, 307/34, 324/34 and 352/34 of IPC and sentenced to imprisonment of life and fine of Rs. 5,000/-in default one year imprisonment under section 302/34, IPC, seven years R. I. and fine of Rs. 5. 000/- in default of payment of fine one year imprisonment under Section 307/34, IPC, one year R. I. and fine of Rs. 1,000/- and in default of payment of fine one year's imprisonment under Section 324/ 34, IPC and one month R. I. under Section 352/34, IPC. It is also ordered that sentences awarded to both the accused shall run concurrently.
(3.) THE prosecution case, as disclosed from the FIR, and unfolded during trial is as under : 3. 1 On 3-11-1999, Informant P. W. 3 gopal Singh, submitted a written report to sho PS Palsri (M) at about 5. 30 p. m. , wherein it was inter alia alleged that on that day, when he was going near Mohabat singh's STD Booth, he saw that his real brother Surender Singh was caught by A-2 zaheer Abbas from backside and A-l sikander Khan had a knife in his hand. A-2 zaheer Abbas asked his brother to kill surender Singh by knife so A-1 Sikander khan gave a knife blow on the left side of the chest of Surender Singh, due to which blood came out and thereafter, he gave another blow on the left ribs of Surendra Singh. At that time, Ishwar Singh came to rescue him who was also caught by A-2 Zaheer abbas and then A-2 Zaheer Abbas told his brother to stab Ishwar Singh also, so A-1 sikander Khan stabbed knife blow on Ishwar singh's left ribs. Surendra Singh's the younger brother Inder Singh came from STD booth, so he, Inder Singh and Champalal tried to escape and then A-1 Sikander Khan tried to inflict knife blow to Inder Singh also but he escaped else Champalal also might get some injury. At the relevant time, public assembled there and seeing them, A-1 sikander Khan and his brother ran away from the place of occurrence. A-1 Sikander khan was blowing the knife in his hand by saying that he would kill anyone if anybody came near him. Surender Singh and Ishwar singh were brought to hospital at Palari by complainant and Inder Singh, where surender Singh was declared dead by the doctor and Ishwar Singh was referred to sirohi hospital as he was serious and while they were going to Sirohi Ishwar Singh told that on that day at Posaliya Market A-1 sikander and A-2 Zaheer Abbas were standing in the middle of the road with cycle. 3. 2 So far as motive of crime on the part of accused is concerned, it is alleged by prosecution witnesses that complainant and surender Singh were passing through the road on a tractor then complainant and surender Singh asked the accused persons to leave the road side. On this, some altercation took place and accused persons then went to their houses and brought knife and gave blows of knife to kill them. 3. 3 On the basis of aforesaid written report FIR No. 150/1999 was registered at PS palsri (M), after lodging of the report, police registered the case against accused A-1 under Sections 302, 307, 324 and 352, IPC and against A-2 under Sections 302/34, 307/34, 324/34 and 352/34, IPC. Investigation was commenced. 3. 4 During the course of investigation, the Investigating Officer, held inquest on the dead body of deceased Surender Singh in the presence of Panchas and sent the dead body for autopsy, drawn Panchnama of the scene of occurrence, weapon used for commission of offence was recovered from the accused and other articles recovered from the place of occurrence were sent to FSL for its chemical analysis. Thereafter, statements of witnesses were recorded. 3. 5 On completion of investigation as sufficient incriminating evidence was found against accused persons, they were arrested and both the accused were charge-sheeted in the Court of learned JMFC, Sheoganj, district Sirohi. 3. 6 As the offence punishable under Sec. 302, IPC is exclusively triable by the Court of Session, the learned Judicial Magistrate committed the case to the Sessions Court, sirohi. 3. 7 The learned Addl. Sessions Judge (the trial Court), to whom the case was made over for trial, framed charge against both the accused which was read and explained to them. 3. 8 The accused pleaded not guilty to the charge and claimed to be tried therefore put to trial vide Sessions Case No. 05/2001 (1/2000 ). 3. 9 To prove the culpability of the accused, the prosecution has examined as many as 20 witnesses including 4 eye-witnesses and relied on their oral testimony. The prosecution also produced number of documents which were relied upon during the course of investigation and, therefore, they were exhibited and read in evidence. They were to prove the charge levelled against them. 3. 10 The trial Court, thereafter recorded statements of accused under S. 313 of the code, wherein also accused pleaded innocence and denied the case of prosecution in toto and reiterated that a false case has been filed against them. In defence, they have examined two witnesses. 3. 11 Oh appreciation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that homicidal death of Surender Singh has been proved and similarly injury caused to witnesses Ishwar singh has also proved. It has also been relied upon by the trial Court A-1 Sikander khan is the author of the fatal injury caused to deceased Surender Singh by knife and also injury caused to P. W. 1 Ishwar Singh and A-2 Zaheer Abbas shared the common intention in the said act, therefore, complicity of A-1 for commission of offence under sections 302, 307, 324 and 352, IPC and a-2 for committing offence under Sections 302/34, 307/34, 324/34 and 352/34. 3. 12 On the aforesaid finding, the trial court convicted and sentenced both the accused to which the reference has been made in earlier paragraphs of this judgment, giving rise to this appeal. ;