S. K. SHARMA, J. - (1.) FOUR appellants viz. Pappi @ Mehboob, Lalit Kumar Singh @ Gyani, Hemu @ Hemant and Laxman were the accused on the file of learned Additional Sessions Judge (Fast Track) No. 2 Kota. Learned Judge vide judgment dated September 4, 2002 convicted and sentenced them as under:- u/s. 302 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer rigorous imprisonment for two months. u/s. 148 IPC: Each to suffer rigorous imprisonment for three years. u/s. 324/149 IPC: Each to suffer rigorous imprisonment for one year. Substantive sentences were ordered to run concurrently.
(2.) THE prosecution case as unfolded during trial is as under:- On January 15, 1998 informant Yunus (PW. 6) submitted a written report (Ex. P. 9) at Police Station Railway Colony Kota to the effect that on the same day around 4 PM while the informant and Guddu @ Shahzad were returning from Meenawala Baba's Dargah they were confronted near the crossing with Pappi @ Mehboob Mansoori, Laxman Mahawar, Idrish, Hemu Mehar, Gyani @ Lalit Kumar Singh and two others, who were equipped with swords. Pappi @ Mehboob inflicted blows with sword on the head, arms and legs of Guddu, as a result of which Guddu fell down. THEreafter Idrish gave sword blow on right hand of Guddu. Laxman Mahawar dealt a sword blow on right foot of Guddu. Hemu Mehar gave sword blow on left hand of Guddu and Gyani @ Lalit gave sword blow on back and buttocks of Guddu. When the informant tried to intervene Idrish caused injuries on his fingers with sword. THE incident was witnessed by Rashid on that report a case under Sections 147, 148, 149 and 307 IPC was registered and investigation commenced. During the course of investigation injured Guddu succumbed to his injuries and section 302 IPC was added. Dead body was 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) No. 2 Kota. Charges under Sections 147, 148, 302 alternatively 302/149, 307 alternatively 307/149, 323/149 and 324/149 IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 20 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 convicted and sentenced the appellants as indicated herein above. Death of Guddu @ Shahzad was concededly homicidal in nature. As per Post Mortem report (Ex. P. 30) following ante mortem injuries were found on the dead body:- 1. Incised wound 5 x 1 cm x bone deep on center of parietal scalp oblique. 2. Abrasion 8 x 4 cm on Lt. half of forehead. 3. Abrasion (4 in no.) 1 x 1cm each on front of forehead. 4. Abrasion 2 x 1/2 cm on nose Rt. side. 5. Abrasion 3 x 2 cm on Lt. cheek maxillary area 6. Incised wound 8 x 1/2 cm x skin deep Rt. arm upper 1/3 lateral side obliquely placed. 7. Incised wound 5 x 1/2 cm x skin deep transverse on Rt. arm middle 1/3 anteriorly. 8. Scratch 4 cm long on Rt. arm lat. side obliquely. 9. Incised wound 2 x 1/2 cm x skin deep Rt. arm lower 1/3 posteriorly transverse. 10. Incised wound 9 x 2 cm x bone deep on back of Rt. elbow verticle there is fracture of Rt. radius & ulna upper. 11. Scratch 6 cm oblique on lat. side of Rt. elbow. 12. Incised wound 6 x 1 cm x skin deep on lat. side of Rt. elbow transverse. 13. Scratch 5 cm transverse on back of Rt. forearm lower 1/3. 14. Incised wound 1 1/2 x 1/4 cm x skin deep on Rt. little finger at distal interphalyngeal. 15. Incised wound 2 x 1/4 cm x muscle deep on Rt. palm vertical. 16. Incised wound 1 x 1/4 cm x skin deep on Rt. hand webspace of thumb & index finger. 17. Scratch 1/2 cm long on back of Rt. index finger. 18. Scratch 1/2 cm long on back of Rt. middle finger. 19. Scratch 1 cm transverse on Rt. side of chest. 20. Scratch 6 cm long vertical on Rt. Lat. side of chest. In the opinion of Dr. Ashok Mundra (PW. 19), who performed autopsy on the dead body, the cause of death was shock as a result of multiple injuries and fractures. We have given our thoughtful consideration to the submissions advanced before us and weighted the material on record. The prosecution case rests on the ocular evidence of Yunus (PW. 6), Rafiq (PW. 5) and Rashid Khan (PW. 8), who have been relied upon by the trial Court for the purpose of recording finding of guilt against the appellants. Informant Yunus (PW. 6) in his deposition stated that on January 15, 1998 around 3-4 PM while he along with Guddu were returning from Mazar after performing Jiyarat, Pappi, Idrish, Laxman, Hemu, Gyani, Sabir and Shamsu came running and Pappi inflicted blow with sword on the person of Guddu, Idrish gave sword blow on the right hand of Guddu, Shamsu gave blow on the shoulder of Guddu as a result of which Guddu fell down and Laxman, Hemu, Gyani and Sabir started inflicting blow with sword. Idrish gave blow with sword on the fingers of his (Yunus) left hand. Rashid then took him on cycle to the police station where he lodged report Ex. P. 9. The injuries sustained by him were examined vide Medical Injury Report Ex. P. 11.
(3.) ACCORDING to Ex. P. 11, Yunus sustained incised wound over palmer aspect and left middle finger. Rashid (PW. 9) deposed that while the came from Mazar he saw Guddu lying down and Pappi, Idrish, Gyani, Hemu, Laxman and other two persons were inflicting blows with sword on Guddu. Yunus also sustained injuries on his hand. He then took Yunus to the police station on cycle. In his cross examination he stated that:- *** Rafiq (PW. 5) named only Pappi and Sabir. According to him Sabir caught hold of Guddu and Pappi and others were inflicting sword blows. ;