SHARMA, J. - (1.) "where can one go? This city has become a jungle, Hither serpants, Thither Mongooses dwell" Uchchav Lal (since deceased) while subjected to highway dacoity, would have thought on these lines. Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq, Khaju and Pappu, appellants in appeals No. 201/2004 and 401/2007, were indicted for having looted a sum of Rs. 3 lakhs and killing Uchchav Lal, before learned Additional Sessions Judge (Fast Track) Tonk, although Badri Lal and Smt. Kesanta, appellants in appeals No. 930/2003 and 931/2003, were charged under Sections 201 and 412 IPC. Learned Judge convicted and sentenced the appellants vide judgment dated June 2, 2003 thus:- Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq, and Khaju: u/s. 302/120b/149 & 396 IPC: Each to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. u/s. 307/149 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. u/s. 326/149 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. u/s. 323 IPC: Each to suffer rigorous imprisonment for one year. u/s. 324 IPC: Each to suffer rigorous imprisonment for three years. u/s. 148 IPC: Each to suffer rigorous imprisonment for three years. Sentences were ordered to run concurrently. Smt. Kesanta: u/s. 412 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. Badri Lal: u/s. 201 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 100/- in default to further suffer simple imprisonment for three months. BRIEF FACTS:
(2.) THE prosecution case is woven like thus:- On April 25, 2002 at 11 PM Ram Niwas (PW. 37) SHO Police Station Nainwa recorded Parcha Bayan (Ex. P. 1) of Suresh Kumar (PW. 1) at Government Hospital Nainwa who stated that around 10 PM while he and his Jijaji (brother-in-law) Uchchav Lal were coming on Motor Cycle from Uniyara, a jeep collided with their motor cycle 5-6 persons, who were sitting in the jeep armed with swords and lathis, got down of the jeep gave beating to Uchchav Lal and looted a sum of Rs. 3 lacs. He was also given beating. Pappu son of Badri resident of Gadarya was one of the assailants. THE number of jeep was RJ 26p-590. On that parcha bayan case under sections 395 and 397 IPC was registered and investigation commenced. During the course of investigation injured Uchchav Lal @ Utsav Lal succumbed to the injuries. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested. Currency notes in the sum of Rs. 1,50,000/- got recovered at the instance of appellant Pappu and recovery of Rs. 90,000/- got effected from Smt. Kesanta, the wife of Pappu. Weapons allegedly used in inflicting injuries to Uchchav Lal and Suresh Kumar got recovered at the instance of appellants Pappu, Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju. Suresh Kumar identified them in the Identification Parade. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under Sections 148, 302/149, 307/149, 396, 394/397, 323, 324, 326/149, 120b, 216a, 187, 201 and 412 IPC were framed against the accused, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 49 witnesses. One Court witness was examined. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence. One witness was examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have heard the submissions advanced before us by learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant and scanned the material on record. MEDICAL EVIDENCE: Injuries of Uchchav Lal @ Utsav Lal were examined prior to his death vide injury report (Ex. P. 40), according to which following injuries were found on his person:- 1. Incised wound 6. 5 cm x 2. 5 cm ? cavity deep on right costal margin of chest 5. 0 cm lateral to mid line & 8. 0 cm below from Rt. nipple on right with clean cut margin and bleeding. 2. Incised wound 5. 0 cm x 0. 5 cm x through & through over Rt. ear region attached with lobe of Rt. ear. 3. Linear abrasion 5. 0 cm x 0. 25 cm with abrasion 2. 0 cm x 1cm on Rt. cheek. 4. Incised wound 5. 5 cm x 0. 5 cm ? bone deep on left side forehead. 5. Incised wound 10. 0 cm x 1. 5 cm x muscle deep with tailing of lower end on back of Rt. shoulder with clean cut margin with two linear abrasion 11. 0 cm x 0. 25 cm and 6. 0 cm x 0. 25 cm on Rt. arm. 6. Incised wound 6. 0 cm x 3. 5 cm x muscle deep with abrasion of skin over Rt. forearm. 7. transverse abrasion (Incised wound) 8. 0 cm x 4. 0 cm with clean cut margin on little ring finger of Rt. hand at base. 8. Incised wound 4. 5 cm x 3. 5 cm x ? bone deep over base of Rt. thumb with amputation of Rt. thumb attached with tag of skin with clean cut margin with fresh bleeding. 9. Incised wound 4. 0 cm x 0. 25 cm x muscle deep on lateral surface of left side of neck upper 1/3 with clean cut margin obliquely placed. 10. Incised wound 6. 0 cm x 0. 25 cm x muscle deep over posterior lateral surface of left forearm middle third with clean cut margin. 11. Abrasion 15. 0 cm x 6. 0 cm x 1. 0 cm x 0. 25cm Rt. knee, Rt. leg upper 1/2 Rt. ankle joint at place with reddish colour. Uchchav Lal @ Utsav Lal succumbed to the injuries on May 5, 2002 and according to Dr. P. C. Vyas (PW. 6) who performed the autopsy and drew postmortem report (Ex. P. 13) the cause of death was shock due to abdominal injuries with secondary infection and head injury. We also noticed that Suresh Kumar (PW. 1) vide injury report (Ex. P. 37) received following injuries:- 1. Incised wound 3. 0 cm x 1. 0 cm x ? cavity deep 1. 0 cm from mid line & 14. 0 cm below Rt. nipple epigestric region with clean cut margin spindle shape. 2. Incised wound 1. 0 cm x 0. 5 cm x ? cavity deep on Rt. side hypo chondrium with clean cut margin 3. Incised wound 10. 0 cm x 2. 5 cm x scalp deep lateral part of parietal region 4. Incised wound 1. 5 cm x 0. 25 cm x skin deep on left ear. 5. Incised wound 2. 0 cm x 0. 5 cm x skin deep on left side of neck. 6. Bruise 12. 0 cm x 2. 5 cm on Rt. side chest below nipple 7. Lacerated wound 2. 0 cm x 0. 5 cm x muscle deep with abrasion 2. 5 cm x 20. 0 cm on left forearm upper part. 8. Lacerated wound 2. 5 cm x 1. 0 cm x skin deep on left palm 9. Incised wound 6. 0 cm x 0. 5 cm x skin deep on tip of left shoulder joint. 10. Incised wound 1. 5 cm x 0. 5 cm skin deep over posterior surface of Rt. elbow 11. Incised wound 5 cm x 0. 5 cm x skin deep over Rt. palm near wrist. 12. Multiple abrasions 4. 5 cm x 2. 0 cm and 1. 0 cm x 0. 5 cm on Rt. knee joint. 13.multiple abrasion 16 cm x 4. 0 cm & 2. 0 cm x 1. 0 cm over back of chest & abdomen. Vide X-ray report (Ex. P. 38) the injuries No. 1 & 2 were dangerous to life. OCCULAR EVIDENCE: The only eye witness of occurrence is Suresh Kumar (PW. 1) who in his deposition stated that on April 25, 2002 he went to Dei from Uniyara on motor cycle to facilitate journey of his Jija Uchchav Lal by giving ride to him on Motor Cycle. While he was waiting for his Jija at Bus-stand Uniyara, Pappu Meena met him and asked as to why he came to Uniyara. Suresh Kumar gave a casual reply that some passenger was arriving and he would take the passenger with him. After sometime his Jija got down of the bus having a bag and attachee. Around 9. 30 PM they proceeded for Dei from Uniyara on motor cycle and when they crossed village Palai and reached at a distance of 2-3 kms a jeep hit them, as a result of which they fell down. In the meanwhile 5-6 persons armed with swords and Gandasas got down of the jeep and surrounded them, Pappu, who met him at bus-stand was one of them. They started beating Uchchav Lal. When he (Suresh Kumar) intervened Pappu and other assailants inflicted blows with sword on his person. The number of the jeep was RJ-26-590. They took away bag and attachee belonging to his Jija Uchchav Lal that contained a sum of Rs. 3 lacs. Suresh Kumar correctly identified appellants Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju in the identification parade as well as in the trial Court.
(3.) RAM Rai Sharma (PW. 16), RAMavtar Vijay (PW. 20) and Chandra Prakash (PW. 33) deposed that immediately after the incident they reached to the place of incident in a jeep and removed injured Uchchav Lal and Suresh Kumar to the hospital. At that time Uchchav Lal was unconscious. Suresh Kumar told them that Pappu Meena and other 5-6 persons gave beating to them and took away a sum of Rs. 3 lacs. N. K. Atrey (PW. 45), who investigated the case, deposed that except accused Pappu Meena, who was known to the witness, all other accused viz. Rajendra Meena, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju were kept Baparda (covered face) throughout i. e. from the time of arrest till identification parade. This statement gets corroboration from the arrest memos (Ex. P. 60 to Ex. P. 64) of the accused. N. K. Atrey categorically denied this suggestion that prior to identification photographs of the accused were shown to Suresh Kumar, Suresh Kumar also stated that he never saw the photographs of the accused. Learned trial Court in the impugned judgment observed that Suresh Kumar had ample opportunity to see the faces of the accused while they were giving beating to him and Uchchav Lal and snatching the bag and attachee. According to learned trial Court since it was full moonlit night of `chetra Shukla Teras' the witness could properly see the faces of the accused. ;