TATIA, J. - (1.) THESE three D. B. Criminal Appeals have been preferred to challenge the judgment and order dated 29. 9. 2004 passed by the learned Addl. Sessions Judge,bali passed in Sessions Case No. 61/99 (39/02), by which the trial Court convicted the appellant Bhanwar Singh @ Chhatar Singh and Madho Singh under Section 302, IPC as well as under Section 302/120b, IPC, whereas convicted appellant Kishan Chand under Section 302/120b as well as under Section 302. 115, IPC. The accused Kishan Chand has been acquitted of charge under Section 302/34, IPC. The accused Bhanwar Singh @ Chhatar Singh and Madho Singh have been sentenced to undergo life imprisonment under Section 302, IPC with fine of Rs. 20,000/- to each and in default thereof, to undergo six months rigorous imprisonment. They have also been sentenced to undergo life imprisonment under Section 302/120b, IPC with fine of Rs. 5000/- and in default thereof, to undergo two months' rigorous imprisonment. Kishan Chand has been sentenced to undergo life imprisonment for charge under Section 302/120b, IPC with fine of Rs. 5000/- and default thereof, to undergo two months rigorous imprisonment and further seven years' rigorous imprisonment for offence under Section 302/115, IPC with fine of Rs. 1000/- and in default thereof, to undergo one month's rigorous imprisonment. The sentences have been made to run concurrently.
(2.) THE D. B. Criminal Appeal No. 1146/2004 has been preferred by the three appellants convicts Bhanwar Singh @ Chhatar Singh, Madho Singh and Kishan Chand, as represented appeal, whereas Kishan Chand also preferred another appeal which is D. B. Criminal Jail Appeal No. 305/2006 through jail authorities. THE State also preferred appeal which is D. B. Criminal Appeal No. 930/2005 seeking capital punishment of the convicts Bhanwar Singh and Madho Singh. All these appeals are being decided by this common judgments. As per prosecution case, on 26. 6. 1999, the SHO, Desuri Duda Ram received one telephonic message by unidentified person that at village Aana , Madho Singh and his father Bhanwar Singh @ Chhatar Singh have attacked with 'gaties' upon three brothers Dhan Raj, Bhim Raj and Dev Raj and killed them. The said information was entered in the Rojnamcha (Ex. P. 43 ). After entering the said information in the Rojnamcha, Shri Duda Ram, SHO, Police Station, Desuri along with Head Constable Kalu Ram and other constables went to the spot where Leela Ben gave written report (Ex. P. 16 ). The report was sent with Head Constable Kalu Ram for recording FIR. The SHO inspected the site and prepared site map (Ex. P. 1) and also prepared site report (Ex. P. 2 ). He found bodies of Dhan Raj, Bhim Raj and Dev Raj on spot and prepared the memo for the bodies of above three victims, as Ex. P. 3, Ex. P. 4 and Ex. P. 5 respectively. From spot, blood soil and sample soil were taken and they were duly sealed in different container and their memo Ex. P. 6 was prepared. The plain soil from near the dead bodies of the above victims were taken separately and their memo Ex. P. 7 was prepared. The seals were duly fixed on these samples. From the spot, turban of accused Bhanwar Singh and one lathi of bamboo were seized and for that seizure memo Ex. P. 8 was prepared. The turban and lathi were also duly sealed. The Panchnama for the bodies of three deceased Dhan Raj (Ex. P. 17), Bhim Raj (Ex. P,18) and Dev Raj (Ex. P. 19) were prepared. The clothes of deceased were taken in custody and they were duly sealed and for that also seizure memos were prepared. The bodies of deceased Dhan Raj, Dev Raj and Bhim Raj were sent for postmortem and post-mortem reports Ex. P. 28, Ex. P. 31 and Ex. P. 32 were obtained. After post-mortem, the bodies were handed over to the relatives of the victims for last rites. The photos of the spot were taken and photos with negatives were also submitted along with challan in the trial Court. During investigation, one sale-deed (Ex. P. 21), Patta (Ex. P. 22) were obtained from Champa Lal and their photo-stat copies were kept and the original were returned to Champa Lal. The application for permission to raise construction which was submitted to the Gram Panchayat by Champa Lal was also obtained. In total 48 document were produced by the prosecution and exhibited in the trial Court. The statements of 25 witnesses were recorded under Section 161, Cr. P. C. In the written report submitted by Leela Ben (Ex. P. 16) on 26. 6. 1999 at 1. 30 p. m. , the complainant Leela Ben w/o Champa Lal stated that in front of house of one Jawat Raj, her (family's) one plot is situated near the house of Nath Mal, wherein there is latrine and one well constructed by the complainant (complainant's family ). The said plot was purchased by registered sale deed from accused Chhatar Singh's father Vijay Singh and thereafter, they obtained Patta for the land in question. Today, i. e. on 26. 6. 1999 itself, to clean the said plot through contractor Kisture s/o Magnaji r/o Aana, three labours Lumba Ram Meghwal, one Mota Ram and another Sama Ram were engaged, who came on spot at about 9 a. m. When the labours started clearing the plot, the accused Kishan Chand's wife who was residing in the house of Chhatar Singh went to Chhattar Singh's well to inform Chhatar Singh about cleaning of the plot by these persons. After receipt of said information, Bhanwar Singh @ Chhatar Singh and his son Madho Singh at about 12 noon came and entered in the plot and started fighting with the labours, upon which the complainant's husband's younger brothers (devars) Bhim Raj, Dhan Raj and Dev Raj went to save the above labours. They went in succession one after another. They all have been killed by Chhatar Singh and Modho Singh one after another by inflicting injuries by lathis and gaties and all the three have died on the spot. In the report Ex. P. 16, the complainant mentioned that her husband is heart patient and his condition is not good, therefore, she is submitting report. Thereafter, the investigation started. In the trial Court, the statements of the accused were recorded under Section 313,cr. P. C. In the statements recorded under Section 313, Cr. P. C. , both accused Chhatar Singh and Madho Singh stated that the plot in question is their property and it was never sold to the complainant party. The accused Madho Singh and Bhanwar Singh @ Chhatar Singh both were in possession of the plot in dispute since generation. The complainant party tried to encroach upon the plot. When they came to know about this fact at their well, then they came from their well to the plot and they found that the victims Dhan Raj, Dev Raj and Bhim Raj were trying to capture their land, upon which both the accused tried to make these persons understand but all the three victims started beatings with lathis to both the accused and, therefore, they had apprehension for their lives. According to above two accused, a false case has been registered against the accused. Kishan Chand, after denying the allegations, stated that against him a false case has been registered. It will be relevant to mention here that the accused-appellant Kishan Chand's wife Rani Devi was also accused but she was absconding and, therefore, she has not been tried along with above three accused, however, Kishan Chand's wife Rani Devi surrendered and latter on tried separately and was acquitted by the trial Court vide judgment dated 13. 11. 2006. It appears that accused Bhanwar Singh @ Chhatar Singh and Madho Singh contested the case only with the plea of right of self-defence, whereas appellant Kishan Chand contested the case on facts stating that he has been wrongly implicated in the case by the complainant and the prosecution agency.
(3.) THE trial Court after considering the evidence produced by the prosecution as well as the defence evidence produced by the accused and their documents Ex. D. 1 to Ex. D. 17 as well as oral statements of DW-1 Sayar Kanwar, DW-2 Ratan Singh Advocate, DW-3 Tarun Singh Chauhan, DW-4 Ramesh Thakur and DW-5 Hukam Singh, convicted the appellants and sentenced them as mentioned above. Hence appeals have been preferred by the accused. The State has preferred D. B. Criminal Appeal No. 930/05 for enhancement of life imprisonment to accused Madho Singh and Chhatar Singh to capital punishment with the plea that the accused Bhanwar Singh @ Chattar Singh and Madho Singh brutally and cold-bloodedly murdered three persons in daylight for no reason successively, one after another of one family, therefore, they should have been sentenced to death. According to the learned public prosecutor as well as the learned counsel for the complainant Shri Pradeep Shah, it was a case for award of death sentence in view of the judgment of the Hon'ble Apex Court delivered in the case of State of Rajasthan vs. Kheraj Ram (2003 (2) WLC (SC) Criminal 457) wherein the trial Court imposed the death sentence. Reference was made to this Court for confirmation of death sentence and the accused preferred appeal against the said conviction and order of death sentence. The Rajasthan High Court acquitted the accused but Hon'ble the Apex Court set aside the Division Bench judgment of this Court and upheld the death sentence imposted by the trial Court holding that the death sentence is most appropriate in the facts of the case. The learned public prosecutor and the learned counsel for the complainant further relied upon the two judgments of the Hon'ble Apex Court delivered in the cases of Dayanidhi Bisoi vs. State of Orissa (2003 (2) WLC (SC) Criminal 183) and Gurdev Singh and anr. vs. State of Punjab (2003 (2) WLC (SC) Criminal 372 ). The learned counsel for the appellants Shri Doongar Singh vehemently submitted that in fact the prosecution has suppressed important material facts and obtained the written report from Smt. Leela Ben and did not investigate the allegations of commission of crime fairly which is apparent from the steps of the investigating agency. Firstly, it is the case of prosecution that the written report was submitted by Leela Ben on the same day, i. e. on 26. 6. 1999 on spot in the village to the SHO which was sent to the Police Station for recording formal FIR and the formal FIR (Ex. P. 42) was registered at 2 p. m. at Police Station Desuri. Said FIR was sent to the Court of Judicial Magistrate which is situated in the small town, Desuri itself, on 28. 6. 2008, i. e. After two days and when the concerned SHO was asked to explain this delay, he merely stated that sending of FIR is work of Munshi of the Police Station, therefore, it is clear that the FIR was sent to the Court after inordinate delay. According to the learned counsel for the appellants, the site was inspected immediately and the site inspection map was prepared in the presence of the complainant Leela Ben herself and same is the position of the site inspection report (Erx. P. 2 ). The site is inspected immediately and its report, therefore, has its own value and this is check against subsequent improvements which may be made by complainant. The complainant stated that the whole of the plot shown in Ex. P. 1 and marked as 1,2,3 ,4 is complainant's plot. A gate has been shown at point 'd' and no gate has been shown at mark 'x'. Contradicting it, in the statement, the complainant as well as complainant's husband Champa Lal stated that whole of the plot was not their's but half of the plot was their's, then in that situation, the site inspection map (Ex. P. 1) and site report (Ex. P. 2) are wrong and in view of the site map (Ex. P. 1) and site report (Ex. P. 2) prepared on the basis of the information given by the complainant herself, their statements are false. It is also submitted that the complainant's case was that the plot was divided by fence but there was no mark of division of plot. It is also submitted that according to the prosecution case, all the three persons were killed within the plot i. e. , within the boundary marked 1,2,3,4 as shown in Ex. P. 1 and it is not the case of the prosecution that any of the victims came towards the way of the house of the accused Bhanwar Singh @ Chhatar Singh and Madho Singh. Then the blood on the soil on the way towards the house of Bhanwar Singh @ Chhatar Singh and Madho Singh could have been of these two accused persons. The prosecution witnesses do not state a single word about the injuries of these two accused inspite of the fact that the two accused suffered injuries by which the blood oozed out in such large quantity that it fell down on the way to their house. Therefore, it is clear that the complainant and the prosecution have not disclosed the complete facts before the Court. From the site report and map it is clear that the eyewitnesses could not have seen the incident. ;