S. K. SHARMA, J. - (1.) THREE persons lost their lives and seven sustained injuries in an incident occurred on March 10, 2001 in village Tidhariya Police Station Todabhim. Surjeet Singh, Suresh Singh and Deshraj, appellants herein, along with fourteen co-accused, were put to trial before learned Additional Sessions Judge (Fast Track) Hindaun City District Karauli. Learned Judge vide judgment dated January 31, 2007 while acquitting co-accused persons, convicted and sentenced the appellants as under:- u/s. 148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 200/ -. in default to further suffer imprisonment for one month. Deshraj u/s. 302 and Suresh & Surjeet u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer imprisonment for six months. u/s. 307 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 1000/-, in default to further suffer imprisonment for three months. Deshraj: u/s. 3/25 Arms Act: To suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer imprisonment for one month. The substantive sentences were ordered to run concurrently.
(2.) THE prosecution story as set out in the FIR is that on March 10, 2001 around 5 PM while the informant Balveer (PW. 14) and other members of complainant party were watering the field as many as 29 assailants of village Peelwa (named in the FIR) came over there armed with guns and deadly weapons and made assault. Jogendra Singh fired at Kartar Singh, Khushi Ram fired at Sahab Singh, Deshraj fired at Hoshiyar Singh, Chandu fired at Gopi, Suresh fired at Vishal, Man Singh fired at Damo, Ummedi Devi inflicted sword blows on the person of Kartar, Reshmi Devi inflicted sword blow on Mukut, Surjeet fired at Samunder, Deshraj fired at Chiroji. Other assailants caused blows with lathi, Dharia and sword, Kartar Singh, Hoshiyar Singh and Sahab Singh died on the spot and Damo, Vishan, Gunji, Samandar Mukut, Chiroji Devi, Chatar Singh received injuries. On that report a case was registered under Sections 147, 148, 149, 323, 341, 307, 302 and 447 IPC and investigation commenced. Dead bodies were subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City District Karauli. Charges under Sections 148, 302/149, 307/149, 323/149 and 324/149 IPC were framed against the accused, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec. 313 Crpc, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions while granting benefit of doubt to co-accused persons, convicted and sentenced the appellants as indicated herein above. Death of Hoshiyar Singh, Sahab Singh and Kartar Singh was undeniably homicidal in nature. As per Post Mortem report (Ex. P. 60) following ante mortem injuries were found on the dead body of Hoshiyar Singh:- 1. Abraded bruise of 7. 5 cm x 4 cm on left side of chest upper part on dissection shows fracture 4th, 5th, 6th ribs and rupture of left pluera & lungs and dark fluid blood filled in left thoracic cavity. 2 A lacerated wound of 7 cm x 3 cm x bone deep on left parietal region of head clotted blood deposited on and around the would. On dissection shows multiple fractures of left parietal bone. 3 Five superficial punctured wound of 0. 3 cm x 2 cm & 0. 3 x. 3 x muscle deep present one lower lateral part of left side of chest. 2 on upper part of left side of abdomen and two on left thigh upper part. The wound not penetrated deeply. The margin of wound inverted. No scrotching, no blackening skin around the wound corresponding hole seen on this wearing clothes. Blood also deposited on clothes. In the opinion of Dr. R. L. Meena (PW. 19) the cause of death was head injury and chest injury leading to excessive hemorrhage of blood leading to shock and death with cumulative effect of injury No. 2. Deceased Sahab Singh as per Post Mortem report (Ex. P. 61) received following ante mortem injuries:- 1. A punctured would with lacerated irregular inverted & contused margins making 4. 5 cm x 4 cm x internal deep, viscera are visible by necked eye on right side of chest. Pectoral region 4 cm away from axillary field & 4 cm below clavicular region oval in shape direction of would ante position Surrounding the above described wound there are multiple punctured wound of varying size having a diameter from 3 cm to 5 cm, diameter in area of 14. 00 cm x 13. 5 cm on right side of chest. The margins of the wounds are inverted and contused the probe passes through and through wounds while rest of these wounds are not upto the whole depth of the skin. No scrotching, no blackening or tattooing present on the skin around the wound. No exit would found on his body. In the opinion of Dr. R. L. Meena (PW. 19) the cause of death was shock due to massive internal hemorrhage caused by external injury due to extensive damage to the right lungs. As per Post Mortem report (Ex. P. 62) deceased Kartar Singh received following ante mortem injuries:- 1. Incised wound start from orbit of left eye extending on temporal region mastoid region parietal region upper part of left ear reached upto occipital region length of wound is 14 cm x 2 cm x bone deep in all depth the bone cut which is seen out side by necked eye and the brain matter all cut. Margin of wound is clean cut. 2. Incised wound of 5 cm x 1 cm x internal neck cavity deep margin of wound clean cut & spindle shape on left side of neck upper region the great vessle cut. 3. Incised wound of 2. 5 cm x 5 cm x bone deep on right leg middle part autening clotted blood deposited on wound margin clean cut. 4 Three punctured wound of 3 cm x. 3cm x muscle deep size present right side of lower part of chest laterally & two are present on abdomen laterally clotted blood not penetrated invisible. 5 Fifteen punctured wound of size. 3 cm x 2 cm and through and through. 3 cm x. 3cm size & muscle deep not penetrated deeply scattered to lower region of Rt. side abdomen injury region upper part of thigh. Margin of wound are contused, inverted. No scrotching, no blackening skin around the wound corresponding holes seen on wearing clothes. The wounds are fire arm injuries. In the opinion of Dr. R. L. Meena (PW. 19) the cause of death was head injury leading to severe blood hemorrhage shock and death and also cumulative effect of other injuries. Eye witnesses, who sustained injuries during incident, were examined by the prosecution. Their injury reports have been placed on record. Smt. Chiroja (PW. 11) (injury report (Ex. P. 69), Mukut Singh (PW. 2) (injury report (Ex. P. 70), Samandar Singh (PW. 1) (injury report (Ex. P. 72), Gunni Ram (PW. 21) (injury report (Ex. P. 73) have deposed against the appellants.
(3.) LEARNED counsel for the appellants contended that the FIR lodged by complainant is highly suspected document being ante- time and ante-dated. It being post investigation document is hit by section 162 Crpc and inadmissible in evidence. The FIR was sent to the Court of Magistrate after an inordinate delay which is strong non-compliance of section 157 Crpc. It was next contended that the version of FIR is deliberated which cannot be paid any credence. Even complainant Balbir Singh admitted the factum that case was lodged/registered after due confabulations. The deceased and injured persons were working together at the time of incident seems to be highly dubious from the attending facts and circumstances of the case. The complainant party was also indulging in firing on accused persons. It was further urged that independent witnesses were not produced by the prosecution and only interested witnesses have been examined. Testimony of alleged eye witnesses is riddled with numerous incongruencies and embellishments rendering the same to be highly dubious in character. Recovery of gun had not been proved with the aid of cogent and convincing evidence. The deceased and the injured were harden criminals and on the Holi festival the complainant party teased young woman and in fact it was the cause of incident. In support of the submissions learned counsel placed reliance on Suresh Chaudhary vs. State of Bihar (2003) 4 SCC 128, Mohinder Singh vs. State of Punjab JT 2003 (Supp. 1) SC 117, State of AP vs. Punati Ramulu 1994 Supp. (1) SCC 590, Surendra Singh @ Bittu vs. State of Uttaranchal JT 2006 (5) SC 213 and Suresh Rai vs. State of Bihar JT 2000 (4) SC 12. We have given our anxious consideration to the submissions advanced before us and with the assistance of learned counsel, gone through the evidence on record. Proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs, BIRCH J. in R. vs. Madhub (21 WR Cr. 13) indicated thus:-      " For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and common sense and shrewdness must be brought to bear upon the facts elicited in every case which a judge of facts in this country discharging the functions of a jury in England, has to weigh and decide. " ;