R.C. Gandhi, J. - (1.) These appeals have been directed against the judgment and Order dated 23rd July, 2002 passed by the learned Additional Sessions Judge No. 1 (Fast Track), Kota in Sessions Trial No. 55/2001, whereby out of 29 accused, he convicted twenty three accused and released twenty one by extending the benefit of Sec. 4 of the Probation of Offenders Act, 1958 and two are sentenced to suffer life imprisonment. Four accused have been acquitted of the charges, whereas two have died during trial. The present appeal has been preferred by the accused convicted and sentenced for commission of offence under Ss. 302 and 148 IPC. The prosecution story is that on 19.8.1002, PW 28 Bhanwar Lal, Assistant Sub Inspector, Police Station Budhadeet received wireless message that occurrence has taken place in village Jhatoli and the injured have been shifted to Hospital at Sultanpur. On receiving this information, he proceeded to the Hospital, where Ram Kalyan, PW 6 submitted a written report, Ex. P -24 to him at 2.15 PM, stating therein that "in their village, the mother of Kishore passed away three days prior and on 19.8.1992 they went to attend the third day ceremony at the cremation, where, at about 8 -9 AM all of a sudden accused Ram Ratan S/o. Prabhulal, Ramesh S/o. Prabhulal, Hajari S/o. Bhairulal, Ramniwas S/o. Prabhu Lal, Ram Kishan S/o. Bhairulal, Prahlad S/o. Prabhu, Ram Dev S/o. Motilal, Babulal S/o. Motilal, Latoor S/o. Ram Kishan, Ram Charan S/o. Hajarilal, Rajendra S/o. Gobarilal, Babulal S/o. Gobarilal, Dhanraj S/o. Prabhulal, Satya Narayan S/o. Prabhulal, Chandrabhan S/o. Gendilal, Ramlal S/o. Chandrabhan, Ram Gopal S/o. Chandrabhan, Dev Chand S/o. Chandrabhan, Ram Kanwar S/o. Nandan, Bardhilal S/o. Ram Kanwar, Moharpal S/o. Ram Kanwar, Dev Lal S/o. Ghasilal, Ram Swaroop S/o. Ghasilal, Devi Shanker S/o. Madho, Khemraj S/o. Devi Shanker, Ganga Ram S/o. Devishankar, Shambhudayal S/o. Kishanla, residents of Jhotali duly armed with weapons i.e. Batons, Gandasi (axe) and Dhariya appeared on the spot with intention to kill them and started assaulting them. Accused Ram Ratan inflicted blows by sword on the hands and legs of Ramhet, Accused Ramhet. Accused Babu inflicted gandasi on the head of Mahaveer and accused Ram Charan struck on his head and legs. Accused Rajendra stuck blows by gandasi on the head of Ramesh and Prahlad assaulted Rajendra on his head and hands, as a result of which Dhannalal, Gopilal, Prabhulal, Ramesh and Mahaveer sustained numerous injuries. It is further stated that when complainant Ramkalyan tried to intervene, accused Ram Karan caused injuries by baton on his left palm and accused Shokaran caused injury on his left shoulder. Accused Mathura also caused injury on his head. This incident was witnessed by Chitarlal, Bhaktari and Ram Prasad of village Gokulapura who were present on spot. On the basis of this report, FIR No. 153/92 cam to be registered. The Investigating Officer started investigation. During investigation, the site plan of the place of occurrence was prepared, the accused were arrested and on their disclosure statements, sword was recovered from accused appellant Ramratan and gandasi from accused appellant Ramesh. Recoveries were also made from other accused. The blood stained clothes of the deceased were seized. The weapons of offence coated with blood were sent to the Forensic Science Laboratory. The report of the FSL was collected and after completing other formalities, the challan was presented before the Court. The court framed charges against the accused. The accused pleaded not guilty and were put to trial.
(2.) During trial, the prosecution examined all 33 witnesses cited in the challan. PW1 Ramesh, PW2 Gopilal, PW6 Ram Kalyan, PW 7 Chiitar Lal, PW8 Bheru Lal, PW9 Ram Chandram, PW 10 Ram Prasad, PW 11 Kishan Lal, PW 12 Mahavir, PW 14 Dhanna Lal and PW 15 Prabhulal have been cited as eye witnesses to prove the occurrence. At the instance of Ramesh accused appellant, gandasi was recovered which has been exhibited as Ex. P -53. In the recovery memo the size of the gandasi has been shown as 6 fingers having 'Babool' handle and the total length of the gandasi has been shown to be of half of the arm size. To prove this recovery, two witnesses i.e. PW 20 Chand Mal and PW 25 Chaturbhuj have been cited and examined. Similarly, recovery of sword has been made from accused Ramratan on the basis of his disclosure statement and to prove this recovery memo Ex. P -38 -A, two witnesses i.e. PW 16 Ganga Ram and PW 19 Kishan Lal have been examined. On appreciation of evidence led by the prosecution and on hearing the learned counsel, the trial Court came to the conclusion that the prosecution has proved the guilt against the appellants and 21 other accused. Except two appellants, other 21 accused were enlarged by extending benefit of Sec. 4 of the Probation of Offenders Act and the appellants were accordingly convicted and sentenced for commission of offence under Sec. 148 and 302 IPC.
(3.) Appeal has been preferred on the ground that the learned trial Court has not appreciated the evidence in its legal perspective. The trial Court has acquitted the co -accused, therefore the same yardsticks in law should have been applied to the accused appellants. The recovery memos which have been relied upon by the trial Court has no legal value as these have not been supported by marginal witnesses, particularly PW20 Chand Mal and PW 25 Chaturbhuj who have been examined to prove the recovery of gandasi from accused Ramesh. It is also one of the grounds taken by the appellants that the statements of witnesses are false with regard to the injury on the head of deceased Ramhet inflicted b Ramratan, whereas their statements are not corroborated by medical evidence.;