MADAN, J. - (1.) THIS appeal u/s. 374 (2) Cr. P. C. is directed against the judgment and order dated 28. 7. 95 whereby the learned Addl. Sessions Judge, Dholpur, convicted and sentenced Ramveer, Mukesh and Mata Prasad, appellants, u/s. 302 r/w. Sec. 34 IPC to imprisonment for life and Rs. 500/- as fine or in case of default in making payment of fine to undergo further simple imprisonment for three months Mukesh appellant was further convicted and sentenced to one month rigorous imprisonment under Section 341 and to six months rigorous imprisonment, under Section 323 IPC. The sentences were directed to run concurrently.
(2.) THE prosecution case in brief is as under- On February 7, 1991, at about 4. 00 p. m. Sewaram, deceased and his brother Ram Khilari, had gone to bring sand in their camel cart from the bank of river running in the vicinity of village Simona. While they were on their way to the bank of river, the three appellants appeared on the way. All the three appellants were armed with lathis. THEy opened an attack upon the deceased and PW. 3, Ramkhilari, Mukesh appellant gave a lathi blow to PW 3, Ramkhilari on his back making him to run away from the spot. All the three appellants continued their assault upon Sewa Ram deceased and caused him fatal injuries. PW 3, Ramkhilari, went to the village and called upon Moji Ram PW 10 and Jagdish PW 5 and taking a cot with them all the three brought the dead Sewaram from the jungle to his house. The incident was reported by PW 3, Ramkhilari to the Police Officer, at Police Station, Rajakhera, Distt. Dholpur at 8. 15 p. m. on that very day. In the absence of PW 21, Gendilal, the then SHO of the Police Station, his subordinate PW 19, Hanuman Singh ASI registered Crime No. 14/91, u/s. 302, 323, 341 r/w. Sec. 41 IPC vide FIR Ex. P. 22 on the basis of the written report (Ex. D-2), submitted to him by PW 3 Ram Khilari, and commenced investigation. Pw 19 Hanuman Singh went to the place of occurrence on the next day at about. 9. 00 a. m. He prepared the Panchnama and conducted other preliminary investigation in the case. In the course of investigation the three appellants were arrested and certain lathis were recovered from their possession as per their information u/s. 27 of the Evidence Act. After having conducted the preliminary in- vestigation Hanuman Singh, ASI, submitted the papers before Pw 21 Gendi Lal, the then SHO, who arrested Ramveer, accused, and after completing the investigation submitted a report u/s. 173 (2) Cr. P. C. against the present appellants. On committal of the case to him the learned Add/ Sessions Judge framed charges u/s. 302 r/w Sec. 34 IPC against all the three appellants. Mukesh, appellant, was further charged with the offence u/s. 341 and 323 IPC. After holding the trial the learned Addl. Sessions Judge found all the three appellants guilty and convicted and sentenced them in the manner stated above. Mr. A. K. Gupta, the learned counsel for the appellants, vehemently urged that there was no reliable and trustworthy evidence on the record of the case so as to connect the appellants or any of them with the commission of the offence against Seva Ram, deceased, in the present case. Mr. Gupta particularly pointed out that the prosecution case hinges on two types of evidence, one the testimony of PW 3 Ramkhilari, who has been examined as an eye witness in the present case, and two, the extra judicial confession, alleged to have been made by three appellants before PW 1 Smt. Bhuri Devi, the widow of the deceased Seva Ram, and her sister PW 2 Smt. Bhagwan Devi. It was submitted that neither the ocular evidence, as tendered by PW 3 Ramkhilari in the case, was truthful and reliable nor the extra judicial confession, alleged to have been made by the appellants, can be accepted against them or any of them. Mr. Gupta further submitted that the facts and circumstances of the case clearly speak that PW 3 Ramkhilari was a made-up witness who was not at all present at the time of commission of offences against Seva Ram, deceased. Mr. Gupta thus submitted that since there was no reliable and satisfactory evidence against any of the appellants and they or any of them cannot be held guilty of any of the offence of which they were charged with.
(3.) MR. G. D. Parwal, the learned Public Prosecutor, duly assisted by MR. Anil Jain, the learned counsel for the complainant, not only supported the judgment and order under appeal but also further submitted that PW. 3 Ramkhilari was injured himself and, therefore, his presence at the time of commission of the offences against him as also against the deceased cannot be doubted. The learned Public Prosecutor pointed out that since the deceased and the present appellants were in litigation from before the incident and since Sevaram, deceased, Ramkhilari PW 3 and Ramchitra PW 4 were being prosecuted by the appellants, they had a motive to assault the deceased and caused his death. The learned Public Prosecutor and MR. Jain further submitted that after the incident the appellants had gone to the house of the deceased and informed his widow that they had murdered the deceased and that his dead body was lying in the jungle. It was submitted that it was an act and conduct of !he appellants which may show as to how dare devil they were. The learned counsel further submitted that not only there was truthful and reliable direct evidence in the statement of PW 3 Ramkhilari against the present appellants but also that the evidence of extra-judicial confession was quite satisfactory and, in the facts and circumstances of the case, there are no good reasons to disbelieve either the direct evidence or the circumstantial evidence on the record of the trial court. We have given due consideration to the rival submission, advanced before us, and also studied the evidence, available on the record of the trial court. In the present case it was not disputed before us that on the day, time and place, i. e. February 7, 1991, at about 4. 00 PM, Seva Ram deceased had died a homi- cidal death as a number of injuries with blunt weapons had been caused to him. In that behalf Mr. Gupta, was fair enough not to challenge that Seva Ram deceased had died a violent death and that in his death an offence punishable u/s. 302 ipc can be said to have been committed. On a study of the record of the lower court we find that PW 16 Dr. Ashfaq Ahmed, Medical Officer at Govt. Dispensary at Raja- khera, had conducted the post-mortem examination on the dead body of Seva Ram, deceased, on 8. 2. 91 and had observed the following injuries on his person *** ;