S. K. SHARMA, J. - (1.) TARA Chand Jain, aged 68 years, was brutally attacked at 6. 30 AM on August 4, 1998 while he came out of the house of one Bane Singh Jat and was passing in front of Panchayat Bhawan. As many as 28 persons were named as assailants in the written report handed over by informant Rakesh Kumar Jain at Police Station Hindaun. Eighteen accused were nabbed and put to trial in Sessions Case No. 72/1999. Four accused viz. Devi Singh, Bhagwat Singh, Maharaj Singh and Ramdev were acquitted and remaining fourteen were convicted and sentenced by learned Additional Sessions Judge Hindaun City vide judgment dated March 27, 2001 as under:- Appellant Mahesh u/s. 302 and other appellants u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/- , in default to further suffer simple imprisonment for three months. u/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 1000/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently.
(2.) DURING the pendency of Appeal No. 213/2001 appellant Chandan Singh s/o Ram Prasad died and proceeding against him stands abated. Remaining ten accused were separately tried in Sessions case No. 221/2001 (63/2000 ). Learned Additional Sessions Judge Hindaun City vide judgment dated July 31, 2007 convicted and sentenced nine accused persons thus:- u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/- , in default to further suffer imprisonment for six months. 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. The substantive sentences were ordered to run concurrently. Since accused Padam Singh did not appear on the date of pronouncement of judgment, order of sentence could not be passed against him. The nine convicted accused have filed Appeal No. 1528/2007. Since both the appeals relate to one incident, we have heard both the appeals analogously and they are being decided by a common judgment. The prosecution story is woven like thus:- On August 4, 1998 at 1. 30 PM Entry No. 182 was made in Daily Diary of Police Station Hindaun City, pursuant to written report (Ex. P-1) submitted by Rakesh Kumar Jain (PW. 1) wherein it was stated that at 6. 30 AM his father Tara Chand Jain had gone to the house of Bane Singh Jat for reminding him about payment of loan. As soon as he came out of the house, 28 persons (named in the report) who were armed with Dharia, Pharsa and lathis, surrounded his father, inflicted injuries on his person indiscriminately and killed him. The incident had been witnessed by Nevo Singh Mahesh and Kanwar Singh, Mahesh came to his house and informed him about the incident. He then rushed to the spot and found his father dead. On that report case under Sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, 18 appellants 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 Hindaun City. Charges under Section 148, 302 and 302/149 IPC were framed in Sessions Case No. 72/1999 against 18 appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions, while acquitting four accused, convicted and sentenced fourteen appellants as indicated herein above. In Sessions Case No. 221/2001 (63/2000) charge sheet was filed against ten accused and charges under Sections 148 and 302/149 IPC were framed, which were denied by them. The prosecution examined as many as 16 witnesses. In the explanation under Section 313 Crpc the accused claimed innocence. No defence witness was examined by them. Learned trial Judge vide judgment dated July 31, 2007 convicted and sentenced the appellant as stated above. Learned counsel for the appellants while assailing the impugned judgment took us through the material on record. Death of Tara Chand Jain was undeniably homicidal. As per Post Mortem report (Ex. P. 7) following ante mortem injuries were found on the dead body:- 1. Incised wound of 10 cm x 1 cm x bony deep on the Rt. parietal region of head on posterior part. Bleeding present clotted blood present in and around the wound. On dissection there is fracture of Rt. parietal bone under the wound. Fracture fragment directing inside skull cavity underlying membrances cut & torn underlying bruise matter cut & lacerated. Blood cloth present in the membrances on the surface of brain. 2. Incised wound of 7 cm x 1 cm bony deep on Lt. leg anteriorly in middle part. No. fracture of tibia & fibula seen. 3. Incised wound of 6 cm x 1 cm x bony deep on 1t. ankle region on medial no fracture. Three incised wound crossing each other on posterior aspect of Rt. leg (calf) in middle 2/3 part. The area of centre at which three wounds crossing each the muscles & tenderness are absent making a large wound of 9cm x 6 cm bony deep at its periphari ends of incised wounds clearly visible. On dissection there is linear oblique cut on the posterior of tibia. 5. Superficial linear cut of 16 cm x 1/8 cm on Rt. scapular region extending downwards upto infra scapular region. 6. Ten bruises on Rt. thigh antero lateral aspect in upper part measuring: 1. Size of Ist bruise which is lower most in 7 cm x 2 cm. 2. Size of IInd bruise 9 cm x 1/5 cm just above bruise No. 1. 3. Size of IIIrd bruise 12 cm x 2 cm just above bruise No. 2. 4. Size of IVth bruise 10 cm x 1. 5 cm just above bruise No. 3. 5. Size of Vth bruise 9 cm x 1. 5 cm just above bruise No. 4. 6.Size of VIth bruise 8 cm x 1. 5 cm just above and crossing bruise. 7.Size of VIIth bruise 13 cm x 2 cm just above bruise No. 5. 8. Size of VIIIth bruise 12 cm x 2 cm crossing above bruises No. 2, 3, 4, 5. 9.Size of IXth bruise 7 cm x 1. 5 cm just parallel to bruise No. 8. 10.Size of Xth bruise 10 cm x 1. 5 cm just posterior to bruise No. 9. 7. Seven bruises on Rt. hips gluteal region: 1. Size of 1st bruise in the lower part of Rt. hip 8 cm x 1. 5 cm. 2. Size of Iind bruise 10 cm x 1. 5 cm just above bruise No. 1. 3. Size of IIIrd bruise 12 cm x 2 cm just above bruise No. 2. 4. Size of IV bruise 13 cm x 2 cm just above bruise No. 3. 5. Size of Vth bruise 15 cm x 1. 5 cm just above bruise No. 4. 6. Size of Vith bruise 11 cm x 2 cm just above bruise No. 5. 7. Size of VIIth bruise 16 cm x 2 cm just above bruise No. 6. 8. 4 (Four) bruises on Rt. lumber region posteriorly: 1. Size of Ist bruise 8 cm x 2 cm. 2. Size of Iind bruise 6 cm x 2 cm just above Ist. 3. Size of IIIrd bruise 5 cm x 1. 5 cm just above Iind. 4. Size of IVth bruise 8 cm x 1. 5 cm just above 3rd. 9. 3 (Three) bruises on Rt. Infra scapular region of back. 1. Size of lower bruise 14 cm x 1. 5 cm. 2. Size of 2nd bruise 14 cm x 1. 5 cm just above 1st bruise. 3. Size of 3rd bruise 16 cm x 2 cm just above Iind bruise. 10. Bruise of 6 cm x 3cm on dorsal aspect of Rt. hand just below the right thumb. In the opinion of Dr. Ram Lal Meena (PW. 7) the cause of death was head injury caused by injury No. 1 and hemorrhagic shock resulting from cumulative effect of other injuries. Learned counsel for the appellant contended that all the alleged eye witnesses were closely related to deceased and they were highly interested in prosecution. The witnesses namely Nabo Singh (PW. 2), Badan Singh (PW. 3), Shiv Charan (PW. 4), Kamar Singh (PW. 5), Mahesh Chand Jain (PW. 6) and Vidhya Devi (PW. 10) were chance witnesses whose presence was highly doubtful. The alleged eye witnesses failed to respond to the impugned assault in a natural and probable manner, their presence becomes highly suspicious. According to medical evidence the deceased died at around in mid-night, as such none of the eye witnesses could be present on the spot. It was further contended that learned Judge lightly brushed aside the significant aspect reflected from medical evidence and failed to find out the alleged common object of the so-called unlawful assembly. He did not care to discuss the evidence in order to discern the formation of unlawful assembly as to why was it formed? According to learned counsel testimony of witnesses bristles with numerous contradictions.
(3.) LEARNED Public Prosecutor and learned counsel for the complainant on the other hand supported the impugned finding and urged that the appellants were rightly convicted and sentenced. Having closely scrutinised the material on record we notice that the prosecution case is founded on the testimony of Naivo Singh (PW. 2), Badan Singh (PW. 3), Shiv Charan (PW. 4), Kamar Singh (PW. 5), Mahesh Chand Jain (PW. 6) and Smt. Vidhya Devi (PW. 10), who have been examined as eye witnesses of the occurrence. From the cross examination of witnesses it appears that there was bitter enmity between the prosecution party and the accused party. Group of persons surrounded deceased and inflicted injuries. Since learned counsel for the appellants termed the eye witnesses as interested and chance witnesses their evidence is subjected to greater scrutiny. While separating chaff from the grain we have to choose only those accused to whom specific overt acts have been attributed consistently by all witnesses. Mahesh Chand Jain (PW. 6) although named 28 persons as assailants, he attributed specific overt act to appellants Mahesh, Darab Singh, Dhuji, Bachchu Singh, Bhulli and Dinesh. According to Mahesh Chand Jain, while he was coming from well after easing himself he saw 28 assailants armed with Pharsa. Dhariya, Sword and Lathis. They surrounded Tara Chand Jain and thereafter Mahesh inflicted blow with Pharsa on his head, Darab Singh gave Pharsa blow on the shoulder, Dhuji and Bachchu Singh inflicted blows with Pharsa on the legs, Bhulli gave blow with sword on the legs, whereas Dinesh inflicted Dharia blow on the legs. Testimony of Mahesh Chand Jain gets corroboration from the evidence of Nevo Singh Jat (PW. 2), Badan Singh (PW. 3), Shiv Charan (PW. 4) and Kamar Singh (PW. 5 ). ;