JUDGMENT
R.S. Verma, J.
1. This appeal is directed against the judgment of Shri Gyan Prakash Pandey, Additional Sessions Judge, Nohar, dated 27-10-1986. In all, 11 persons including the present ten appellants, namely, Jai Singh, Ram Swaroop, Amar Chand, Kashi Ram, Daula Ram alias Dalo Singh, Dariya Singh, Inder Singh, Hardeva Ram, Fateh Singh and Bhadar were put up for trial before the learned Additional Sessions Judge exercising jurisdiction within Sessions Division, Sri Ganganagar, for various offences in respect of an incident said to have taken place in the fore noon of 15-9-1984 on the outskirt of village Sardarpura Bas near or about the Khala in the field of one Poorna Ram Kanvasara in which PW 1 Smt. Vimla and PW 5 Smt. Santaro were injured and Smt. Vimla’s brother and Smt. Santaro’s brother-in-law Om Prakash end Mange Ram, as also one of their relatives Budh Ram were killed by use of fire arms. The learned Additional Sessions Judge acquitted co-accused Ram Singh of all the charges levelled against him but convicted and sentenced the present appellants as under:
(i) Jai Singh: for offences Under Sections 148, 302, 302/149, 307/149, 379, IPC and 25 and 27 of the Indian Arms Act;
(ii) Ram Swaroop: for offences Under Sections 148, 302, 302/149 and 307/149, IPC;
(iii) Bhadar, Amar Chand, Kashi Ram, Daula Ram alias Dale Singh Dariya Singh, Inder Singh, Hardeva Ram and Fateh Singh: for offences Under Sections 148, 302/149 and 307/149, IPC.
Jai Singh and Ram Swaroop were sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each for offence Under Section 302, IPC and in default of payment of fine, to undergo further rigorous imprisonment for three years each. All the appellants including Jai Singh and Ram Swaroop were sentenced to undergo life imprisonment and to pay a fine of Rs. 2500/- each for offence under Section 302 read with Section 149, IPC and in default of payment of fine, to undergo further rigorous imprisonment for two years each. Each of the appellants was sentenced to undergo rigorous imprisonment for five years and to pay each a fine of Rs 1000/- and in default of payment of fine to undergo further rigorous imprisonment for one year for offence under Section 307 read with Section 149, IPC. Each one of the appellants was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 250/-and in default to undergo further rigorous imprisonment for offence Under Section 148, IPC. In addition, appellant Jai Singh was sentenced to undergo one year’s rigorous imprisonment and to pay a fine of Rs. 250/- and in default to undergo further rigorous imprisonment for three months for offence under Section 379, IPC. He was also sentenced to undergo rigorous imprisonment for three months for offence Under Section 25, Arms Act and rigorous imprisonment of six months for offence Under Section 27, Arms Act all the sentences of imprisonment passed against the appellants were ordered to run concurrently. Directions were also given about disbursement of fine, if realised, to the next of kin of the deceased persons and also to the injured persons. Aggrieved, all the appellants have come in appeal.
2. Briefly stated, the prosecution story is that one Budh Ram Beniwal owned about 102 Bighas of land on the outskirt of village Sardarpura Bas. This Budh Ram Beniwal died issueless and Harpat Ram father of PW 1 Smt. Vimla and deceased Om Prakash and Mange Ram started cultivating this land. Harpat Ram also died later on with the result that brother of Smt. Vimla, nameiy, Om Prakash, Mange Ram, Sat Prakash and others started cultivating this land. This land was being claimed by Jai Singh appellant. Appellants Inder Singh, Hardeva Ram, Fateh Singh and Dariya are brothers of this Jai Singh Appellant Ram Swaroop is maternal uncle of appellant Jai Singh. Appellants Daula and Kashi are real brothers and are cousins of Jai Singh. Because of the dispute regarding possession of the aforesaid land, appellant Jai Singh formed a group consisting of his brothers, cousins, maternal uncle and some Bishnois. This group was on inimical terms with Om Prakash, Mange Ram and others brothers of PW 1 Smt, Vimla.
3. The proseuction story further is that Smt. Vimla along with her husband Har Lal had constructed a Dhani on an agricultural field purchased by them and situated on the outskirt of village Sardarpura Bas. They used to live in this Dhani. In the nearby fields, Om Prakash and Mange Ram had built their separate Dhanis and they used to live there with their families. On 15-9-1984, Om Prakash, Mange Ram along with their relation Budh Ram of Nethrana and one Hari Singh PW 4 left their Dhanis for going to Bhadara from where Om Prakash and Mange Ram were to obtain certain documents pertaining to the land in dispute including some stay order. When these people left their Dhanis, Om Prakash was armed with a 12 bore gun belonging to Het Ram father-in-law of his brother Sant Lal. He was also having a bondoleer of cartridges. Budh Ram was also armed with a gun and was carrying a separate bandoleer of cartridges. Mange Ram was unarmed while Hari Singh was armed with a Lathi. When these persons reached near ‘Kanvasara Tal’, they spotted a jeep and a tractor carrying almost 40 to 50 persons. All these persons started firing at Om Prakash, Mange Ram and Budh Ram. All the assailants got down from the tractor and the jeep and surrounded Hari Singh, Mange Ram, Budh Ram and Om Prakash. PW 4 Hart Singh got scarred and took to his heels and entered an adjoining field of Kanavasara which had a standing crop Of ‘Bajri’ in it. Hari Singh concealed himself in the field while the firing went on. The gunshots attracted the attention of PW 1 Smt. Vimla and PW 5 Smt. Santaro, who were sitting in their Dhanis. So ataracted Smt. Vimla and Smt. Santaro rushed towards the field of Purna Ram Kadvasara. When Smt. Vimla and Smt. Santaro reached near the field of Purna Ram Kanvasara, they saw that Mange Ram, Budh Ram and Om Prakash were sitting in the Khala Of the field of Purna Ram. They also saw that appellants Ram Swaroop, Jai Singh, Dariya Singh. Inder Singh, Fateh Singh. Daula Ram, Kashi Ram, Amar Chand and two others namely, Gurdayal Singh and Bhoop Singh were firing towards Om Prakash, Budh Ram and Mange Ram Co-accused Ram Singh who has been acquitted by the learned trial court was standing near a Jeep. Appellant Ram Swaroop and Jai Singh were standing towards the North of the Dhani of Purna Ram Kanvasara and were firing guns from that side, they also saw that Dariya Singh, Fateh Singh, Inder Singh and Hardeva Ram had taken position behind a ‘Khejdi’ tree and were firing from that side while the other appellants were firing from the western side of the Khala At this, Smt. Vimla and Smt. Santaro ran to the rescue of Om Prakash and Mange Ram at which Jai Singh and Ram Swaroop pushed Smt, Vimla away and threatened to fire at her. Then Jai Singh shot at Budh Ram and Ram Swaroop shot at Mange Ram with the result that Budh Ram and Mange Ram fell in the Khala. At that very time, appellant Fateh Singh fired a gun at Om Prakash with the result that Om Prakash also feel in the Khala. The accused persons then fired guns towards Smt. Vimla and Smt. Santaro with the result that they also sustained some injuries. Appellants Inder Singh, Amar Chand and Dariya Singh gave beating to Smt. Santaro from the butts of their guns. Thereafter the appellants gave beating to Mange Ram, Budh Ram and Om Prakash by butts of their guns as also by Lathis. Jai Singh appellant picked up the gun of Om Prakash while appellant Fateh Singh picked up the gun of Budh Ram. Thereafter these ladies ran back towards their Dhanis. The appellants also thereafter made good their escape.
4. The prosecution story further is that Smt. Vimla went to her dhani and escorted by her niece, left for village Badi Gandhi, from there she boarded a bus and went to Bhadara Hospital where she get herself examined and also received some first aid. That day at about 6.15 p m. PW 8 Pala Ram then in-charge Police Station, Bhadara, received a written report from the Government Hospital. Bhadara intimating that Smt. Vimla had been admitted in the Hospital in an injured condition. On this, Shri Pala Ram proceeded to the Government Hospital, Bhadara, where Smt. Vimla was hospitalised. He recorded her statement Ex. P 1 and sent the same to the Police Station, Bhirani, with PW 9 Makhan Lal because the incident had taken place within the jurisdiction of Police Station, Bhirani, and not within the jurisdiction of his Police Station, Makhan Lal reached Police Station, Bhirani, the same evening and banded over Ex.P 1 to Shri Sant Lal PW 13, who was then in-charge of the Police Station, Bhirani. The same day at 8 p m., Sant Lal PW f 3 recorded a formal FIR Ex.P 9 on the basis of Ex.P 1 and registered a case Under Sections 302, 307, 147, 148, 149 and 379, 1PC and 27 of the Indian Arms Act. After recording this formal FIR, Sant Lal PW 13 proceeded to the Government Hospital at Bhadara and recorded statement of Smt. Vimla Under Section 161, Cr PC. He then proceeded to the scene of occurrence. How ever, since night had fallen, he deputed some Police personal to keep a guard at the site and returned. He went to the scene of occurrence again next day is the morning. He found dead bodies of Om Prakash, Mange Ram and Budh Ram lying at the scene of occurrence. He made a detailed site inspection and prepared site plans Ex.P 26 and Ex P 27 and memos Ex P 26A and Ex.P 27A pertaining to such site inspection.
5. Sant Lal PW 13 thereafter examined the dead bodies and prepared “fard-surat-hal lash” Ex.P 28 in respect of Om Prakash, Ex.P 29 in respect of Mange Ran) and Ex.P 30 in respect of Budh Ram respectively. He also prepared Panchnamas in respect of the aforesaid dead bodies being respectively Ex.31, Ex P 32 and Ex.P 33. He recovered blood stained and control soil from near the dead bodies and duly sealed them and prepared Ex.P 34, Ex.P 35 and Ex.P 36 respectively He recovered 12 empties from near the three dead bodies and duly sealed them vide Ex.P 37. He found two pieces of a bloyd stained stick lying near the dead body of Om Prakash and recovered the same vide Ex.P 38 He recovered one bandoleer from near the dead body of Om Prakash vide Ex.P 39 and another bandoleer from near the dead body of Budh Ram vide Ex.P 41. He also recovered a Chappal from near the dead body of Mange Ram. He further recovered two empties vide Ex.P 42 and three wads vide Ex.P 43 and two wads vide Ex.P 44. He also recovered another empty cartridge and a wad vide Ex.P 45 and likewise two empties and some wads vide Ex.P 46. After these proceedings were over, he got autopsy conducted on the three dead bodies at the site itself. He found one tractor standing near the site, which he recovered vide Ex.P 51.
6. It may here be stated that Smt. Vimla was examined regarding her injuries by PW 3 Dr. Brij Mohan on 15-9-1984, who found following injuries on her person:
[1] Lacerated oval wound of entrance 1/”8 x 1/8″ x 1/8″ Ocipital region– Simple F. Arm Postero anterior direction;
[2] two wounds of entrance lacerated wound 1/8″ x 1/8″ x skin deep each. Over left lumber and iliac region– Grievous fire arm;
[3] Lacerated oval wound of entrance 1/8″ x 1/8″ x 4″ over left lumber and with inverted margins– iliac region Grievous fire arm;
[4] Two bruises with abrasion 4″ x 4″ each Post, side of it. Inter and thumb– Simple Blunt;
[5] Two lacerated wounds of entrance 1/8″ x 1/8″ x 4″ each Ant. side of the right fore arm– Simple fire arm;
[6] Two lacerated wound of entrance 1/8″ x 1/8″ x 1/8″ each Ant. side of the liver– Simple fire arm;
[7] Abrasion 1/8″ x 1/8″ Ant. side of the left thumb Simple blunt;
[8] Abrasion 4″ x 4″ lateral side of the left knee– Simple blunt;
[9] Lacerated wound of entrance 1/8″ x 1/8″ x 1/8″ Ant. side of the Right thigh — Simple fire-arm, direction of the above wound is Anterior Posteriorly and transverse;
[10] Lacerated wound of entrance 1/8″ x 1/8″ x 1/4″ post side of the left Fore arm– Simple fire-arm;
[11] Lacerated wound of entrance 1/1″ x 1/8″ x skin deep right thigh– Simple by fire-arm;
[12] Lacerated wound of entrance 1/8″ x 1/8″ x 1.5″ on the back below Postero Anterior direction in left. Capulm– simple fire-arm;
[13] Two lacerated irregular wound of entrance 1/8″ x 1/8″ x 1/8″ each Lt. shoulder Antero Posterior direction– Simple blunt;
[14] Bruise with abrasion 1″ x 1/8″ left. Deltoida Anteriorly Simple blunt;
[15] Lacerated wound of entrance 1/8″ x 1/8″ x skin deep left Arm laterally– Simple blunt;
[16] Bruise with abrasion 1.5″ x 1/8″ Rt. Seltoid– Simple blunt.
He prepared Ex.P 2 in this regard. Dr. Brij Mohan also examined Smt. Santaro the same day and round following injuries on her person:
[1] Lacerated irregular wound margin inverted with slight Slackening Bone visible 1/1.5 x 1″ x 1.5″ Pattela upper Ant. end of Tibia– Grievous Fire-arm;
[2] Lacerated irregular wound of entrance margins inverted with slight blackening 1.5″ x 1.5″ x 1.4″ just lateral to the injury No. one-Grievous fire-arm;
[3] Lacerated irregular wound of entrance margins inverted with slight Blackening 1.4″ x 1.5″ x 1.4″ just medial to injury No. one Grievous fire-arm;
[4] Lacerated irregular wound of entrance with slight Blackening margins inverted 1.5″ x 1.4″ x 1.2″ just above and medial to injury No. three– Grievous fire-arm;
[5] Direction of the wound Antero Posteriorly and transverse; Abrasion with Swelling 3/1.5″ x 1/1.5″ Post, side of the Right fore-arm– Grievous blunt;
[6] Lacerated wound of entrance inverted margins 1.2″ x 1.4″ x 1.4″ It. lateral side of the neck– Simple fire arm;
[7] Bruise with Abrasion 1.4″ x 1.4″ just Anterior to the Rt. ear Simple blunt;
[8] Lacerated wound of entrance M. inverted with slight Blackening 1.4″ x 1.4″ x 1.4″ Post, side of the Neck– Simple blunt; Direction Postero Anteriorly arm;
[9] Lacerated wound of entrance with slight Blackening inverted-margins 1.5″ x 1.4″ x 1.4″ over the parietal bone– Simple fire-arm;
[10] Bruise with swelling 2/1.2 x 1″ Postero Lateral side of the left fore arm– Simple blunt;
[11] Bruise with Abrasion 1.4″ x 1.4″ tip of the Lt thumb Simple blunt.
He prepared Ex.P 3 in this regard. He also get injuries on Smt. Santaro X-rayed and found that there was a fracture of the upper head of the tibia and the right leg and also a fracture of radius on right arm.
7. Dr. Brij Mohan Chaudhary conducted autopsy on the persons of Om Prakash, Mange Ram and Budh Ram on 16-9-1984. He found following injuries on the person of Om Prakash:
[1] Lacerated irregular wound of entrance with inverted margins slight Blackening 1.4″ x 1.4″ x skin deep over nose simple by fire arm Dire. Anterio Posteriorly and downwards;
[2] Lacerated wound 2″ x 3/9″ x bone deep over left site frontal bone simple blunt;
[3] Pinna of the right ext. ear is cutted in the middle 1/3 portion 1.4 x 1/8″ Grievous sharp;
[4] Lacerated irregular wound of entrance with Blackening inverted margins 1.5″ x 1.4″ x skin deep over right forearm posteriorly simple fire arm Dire. Posterio;
[5] Bruise with swelling 3″ x 3″ with on (fracture) of the Radius and ulna of the right fore arm Posteriorly Grievous blunt;
[6] Bruise with swelling 4″ x 2/1 5″ Post, side of the right wrist and palm Grievous Blunt with on (fracture) of the underlying bones;
[7] Lacerated irregular wound of entrance with Blackening inverted margins 1.4″ x 1.4,’ x skin deep medial side of the right knee joint and fore arms;
[8] Bruise with swelling with on (fracture) right fomur lower 1/3 portion 6″ x 3″ Grievous blunt;
[9] Lacerated irregular wound of entrance 1″ x 1″ x 1/1.5″ with Blackening and inverted margins over post, side of the right hip joint above gluteal region with on (fracture) of the pelvic Bone Grievous fire arm postero anteriorly TOZA Direction;
[10] Two bruises Antero medial side of the right leg 4″ x 3″ each simple blunt;
[11] Bruise 3″ x 1/1.5″ x 3″ x 1/1.5″ over medial side of the right Calf muscles simple blunt.
On opening the body, he found that both the legs were congested and the heart was pale and both the chambers of the heart were empty. The stomach and small intestines contained semi-digested solid food. The large intestines contained faecal matter. According to him, the deceased died due to excessive haemorrhage because of gun shot injury and treamatic shock. According to him, Om Prakash had died within 24 hours of the post-mortem examination. In his opinion, the injuries found on the person of deceased were ante-mortem in nature and all the injuries were collectively sufficient in the ordinary course of nature to cause death. He prepared post-mortem reports Ex.P 5 in this regard.
8. He found the following injuries on the person of deceased Mange Ram:
[1] Lacerated irregular wound of entrance with inverted margins slight Blackening 1.5″ x 1.5″ x skin deep Anterior and right Anteral side of abdomen Grievous fire-arm Ant. Posterior T.R.
[2] 3 Lacerated irregular wounds of entrance with inverted margins slight Blackening 1.4″ x 1.4″ x 1.4″ each with on (fracture) of Pattala and upper and of tibia nt. side of the right knee joint. Grievous by fire-arms. Antero posterior direction;
[3] Lacerated irregular wound of entrance with inverted margins with Blackening right Lateral side of the thorax back lower part. Right lower half of the lung is torned in to pieces 1″ x 1.5″ x 3″ postero Anteriorly TR direction Grievous fire arms;
[4] Lacerated irregular wound of entrance with inverted margins and Blackening 1.4″ x 4″ x 1.4″ post, side of the left shoulder simple fire arm;
[5] Bruise with swelling 7″ x 3″ Anterior side of the left thigh simple blunt
He prepared post-mortem report Ex.P 6 in this regard. In his opinion, injuries found on the person of Mange Ram were ante-mortem in nature and death had been caused due to gun shot injuries because of excessive bleeding from the injury found on the right lung. According to him. Mange Ram must have died within 24 hours of the post-mortem examination Injury No. 3 on the Body of Mangeram sufficient to cause death in the ordinary course of nature.
9. Dr. Brij Mohan Chaudhary conducted autopsy on the body of Budh Ram and found the following injuries on his person:
[1] Lacerated irregular wound of entrance with inverted margins with slight Blackening 1″ x 1″ x upward of exit just above Right Gluteal region Posteriorly. Postero Anterior upwards direction, Grievous by fire arm;
[2] Bruise 7″ x 1/1.5 over Right Gluteal region simple blunt;
[3] Lacerated irregular wound of exit with inverted margins small intestine partially bulging out from the 1/1.5 x 1/1.4″ x wound of entrance just below and Right to umblicus Grievous fire-arm.
[4] Lacerated wound of entrance with inverted margins slight blackening 1.8″ x 1.8″ x skin deep over Right Check simple fire-arm-Direction Antero posteriorly TRA;
[5] Bruise 1″ x 1″ in intra-orbital region simple blunt.
All the injuries were ante-mortem in nature and according to him, death had taken place due to gun shot injury on the liver, according to him, injuries Nos. 1 and 3 were sufficient in the ordinary course of nature to cause death. He prepared post-mortem report Ex.P 7 in this regard. Dr. Brij Mohan Chaudhary recovered certain pellets from the dead bodies of Om Prakash and Mange Ram vide Ex.P 5 and Ex.P 6 and certain pellets from the person of Smt. Vimla. They were sealed in three different bottles and were eventually handed over to the Police vide Ex P 60 memo on 21-9-1984.
10. It may be stated that PW 15 Mani Ram, SHO, Police Station, Bhirani, was out of headquarters when PW 13 Sant Lal had recorded the FIR Mani Ram PW 15 reached Police Station, Bhirani, on 17-9-1984 and having come to know that PW 13 Sant Lal had already gone to the scene of occurrence, proceeded to the spot. He obtained the case diary from PW 13 Sant Lal. On 18-9-1984, he recorded the statement of Smt. Santaro On 22-9-1984, he went to the Dhani of Smt. Vimla and recovered her blood stained clothes vide memo Ex P 61. He also recorded statement of Smt. Santaro and Purna Ram.
11. The prosecution story further is that PW 13 Santlal arrested accused Ram Swaroop, Inder Singh, Amar Chand, and Dariya Singh on 27-9-1984 and prepared arrest memos Ex.P 2, P 53, P 54, and P 55 respectively. It appears that accused Daula Ram alias Dale Singh surrendered before Munsif and Judicial Magistrate, Bhadara and produced a gun a licence before the learned Munsif and Judicial Magistrate, Shri Damodhar Mishra, who duly recovered them vide Ex P 82. Similarly, on 11-10-1984, appellant Jai Singh surrendered himself along with a rifle and a licence before Shri Damodar Mishra and the rifle and the licence were recovered by Shri Damodar Mishra vide Ex.P 33 memo.
12. It may be stated that appellant Inder Singh was got examined by the Investigating Officer on 27-9-1984 by Dr. Mahavir Prasad Beniwal. Dr. Beniwal found following external injuries on his person:
[1] Healed wound with 1.8″ x 1.8″ scab;
[2] Healed wound with 1.8″ x 1.8″ scab;
[3] Healed wound with 1.4″ x 1.4″ serious discharge on X-ray cervical region AP view showing a pellet on Rt. side neck;
[4] Healed wound with 1.4″ x 1.8″ serious discharge.
He prepared Ex.P 4 in this regard. As regards injury No. 3, Dr. Mahavir Prasad got the same X-rayed under his supervision and got the X-ray plate article 12 prepared. He found a metallic shadow underneath injury No. 3. According to him, injury No 3 had been caused by a fire arm. How ever, he was unable to say with what weapon injuries Nos 1, 2 and 4 had been caused.
13. The prosecution story is that on 30-9-84, appellant Ram Swaroop had volunteered information to PW15 Mani Ram in respect of a gun and three empty cartridges and a licence, which was duly recorded by Mani Ram as Ex. P62. Mani Ram, in pursuance of such information recovered a 12-bore gun, three empties and a licence vide memo Ex.P 63. On 5-10-84, appellant Amar Chand while in Police custody, volunteered information to Mani Ram in respect of a 12-bore gun and a cartridge, which was recorded as Ex.P 64 and in pursuance whereof, a gun and an empty cartridge were recovered by Mani Ram vide Ex.P 11. On 17-10-84 appellant Dariya Singh volunteered information to Mani Ram in respect of a 12-bore pistol and two empties. This information was recorded as Ex.P 65 and in pursuance of such information, Mani Ram recovered one 12-bore pistol and two empty cartridges at the instance of the appellant vide memo Ex.P 10.
14. On 10-10-84, Mani Ram recorded blood stained clothes of Smt. Santaro vide Ex.P 66.
15. On 15-10-84, Mani Ram obtained the guns and licences surrendered by Daula alias Dale Singh and Jai Singh before learned Munsif and Judicial Magistrate, Bhadara. vide memo Ex.P 67.
16. The prosecution story is that appellant Jai Singh in Police custody volunteered information to Mani Ram on 12-10-84 in respect of a 12-bore gun and a licence vide Ex P 68 and in pursuance thereof, this appellant got one 12-bore gun and a licence recovered vide Ex.P 11, also marked at P11A. Mani Ram arrested appellant Kashi Ram on 22-10-84 vide Ex. P69. Appellant Kashi Ram volunteered innformation to Mani Ram on 23-10-84 in respect of one 12-bore pistol and an empty, The same was recorded as Ex.P 70. In pursuance of the aforesaid information, appellant Kashi Ram got recovered one 12-bore pistol and one empty cartridge. They were duly recovered by Mani Ram vide Ex.P 71.
17. Mani Ram arrested accused Fateh Singh on 28-10-1984 vide Ex.P 72. He arrested appellant Hardeva Ram on 30-10-2984 vide Ex.P 72. On 1-11-1984, appellant Fateh Singh volunteered information to him in respect of one 12-bore gun and two empty cartridges. This information was recorded as Ex.P 74. In pursuance of the aforesaid information. Fateh Singh got one 12-bore gun and two empty cartridges recovered vide Ex. P 12.
18. On 1-11-1984 itself, Hardeva Ram volunteered information to Mani Ram in respect of one bamboo stick vide Ex P 75. He got the same recovered the same day to Mani Ram vide Ex.P 13.
19. On 7-11-1984, Mani Ram arrested appellant Bhadar Singh vide Ex.P 76. on 15-11-1984, he arrested accused Ram Singh vide Ex.P 77. On 16-11-1984 appellant Bhadar Singh volunteered information in respect of a bamboo stick. In pursuance thereof, he got one bamboo stick recovered vide Ex. P 79 The prosecution story is that the various articles so recovered were duly recovered and were sent to the Forensic Science Laboratory, Jaipur. Before so being sent, they were kept in the Malkhana of Police Station, Bhirani, in custody of Malkhana incharge PW 12 Sant Lal and his successor Shri Sher Singh PW 15. The various articles were carried from Malkhana of Police Station, Bhirani, to the Forensic Science Laboratory by PW14 Constable Mahavir Prasad. The wearing apparal of the deceased persons as also of Smt. Vimla and Smt. Santaro and the blood smear and the control soil recovered from the scene of occurrence and some other articles were examined by serologist of the State Forensic Science Laboratory, who gave report Ex.P 84 in this regard. The fire arms and the pellets recovered in the course of investigation were examined by ballistic expert of the Forensic Science Laboratory, Jaipur, who gave reports Ex.P 85 and P 86 with regard to such examination.
20. Certain other witnesses were examined by the Police during the course of investigation and there after a challan was filed against all the appellants and co-accused Ram Singh in the court of Munsif and Judicial Magistrate, Bhadara. Two more accused persons, merely, Gurdayal and Bhoop Singh are said to have participated in the occurrence but since they could not be arrested, hence the ten appellants and co-accused Ram Singh were committed to the court of learned Additional Sessions Judge.
21. The learned Addl. Sessions Judge framed due charge against all the accused persons on 12-4-1985. All the accused persons pleaded not guilty and claimed to be tried.
22. The prosecution examined as may as 16 witnesses in support of its case, namely, PW 1 Smt. Vimla, PW 2 Dr. Mahavir Prasad, PW 3 Dr. Brij Mohan Chaudhary, PW 4 Hari Singh, PW 5 Smt. Santaro, PW 6 Bhoop Singh, PW 7 Ramji Lal, PW 8 Pala Ram, PW 9 Makhan Lal PW 10 Sardul, PW 11 Sukh Lal, PW 12 Sant Lal s/o Bhagat Ram, PW 13 Sant Lal s/o Bhura Lal, PW 14 constable Mahavir Prasad, PW 15 Mani Ram and PW 16 Sher Singh.
23. The accused persons in their statements recorded Under Section 313, Cr. PC denied the prosecution story and claimed that they had been falsely implicated. The case of accused Inder Singh was that on the fateful day, he was going from his Dhani in the field to his village by a tractor trolley. His field lay towards west of Sardarpura Bas and his village Bada Bas was towards east of Sardarpura Bas. When he reached with his tractor trolley near the ‘abadi’ of Chhota Bas, Mange Ram, Om Prakash and three or four more persons firend towards him from north-west with the result that some pellets hit him on his face. He was scared and he concealed himself behind his trolley. The aforesaid persons again fired at him and this time the pellets hit the tractor trolley at which he abandoned the tractor trolley on the spot and ran away towards Chhota Bas.
24. Appellant Jai Singh admitted that he had produced his rifle in the court of Munsif and Judicial Magistrate, Bhadara, but he denied that any other gun or licence were got recovered from him, at his instance as alleged by the prosecution. According to him, he had purchased six or 7 kilas of land out of 102 kilas of land and this had annoyed Om Prakash and Mange Ram According to him, a large number of villagers bore enmity to Om Prakash and Mange Ram and a good number of cases had been filed against him Under Section 110 Cr P.C. Accused Fateh Singh denied that any gun or empties had been recovered at his instance as alleged. He also took a stand that he also purchased 5 or 6 bighas of land. He stated that Inder Singh was his real brother and Om Prakash and Mange Ram had shot at him and this is why, he was falsely implicated. Daula Ram and Dale Singh admitted that he has surrendered his 12-bore gun before Munsif and Judicial Magistrate, Bhadara, but he denied that he got any pistol or empties recovered at his instance. According to him. He had also purchased 8-8-1/2 bighas of land which had caused grinvance to Om Prakash and Mange Ram Bhadar Ram denied that he got any stick recovered at his instance. He also took a stand that he had purchased 6 kil as of land due to which he had been falsely implicated. Kashi Ram in his statement denied that he got any 12 bore pistol and empty recovered. He also took a stand that he also purchased some land out of 102 bighas of land, due to which he was falsely implicated. Dariya Singh also denied that he got any pistol or empties recovered at his instance, he stated that he had been falsely implicated-because he was a brother of Inder Singh. Appellant Hardeva Ram denied that he got any stick recovered. He took the stand that he was falsely implicated because he was an elder brother of Inder Singh Accused Amar Chand denied that any 12-bore gun and empty had been recovered at his instance. According to him, he had been falsely implicated in the case. Accused Ram Swaroop claimed that he was maternal uncle of Inder Singh, Jai Singh, Fateh Singh, Dariya Singh, and Hardeva Ram. He has been implicated because of some political influence. He was a freedom fighter and social worker. His both eyes had failed and he could faintly see from only one eye.
25. The appellants examined five witnesses in their defence, namely DW 1 Mahavir Singh, DW 2 Balwant Singh, DW 3 Pat Ram, DW 4 Naurang Rai and DW 5 Dr. N.S. Girdhar It appears that by mistake, the trial court, has labelled Naurang Rai, as well as Dr. N.D. Girdhar as DW4.
26. After hearing both the sides, the learned Additional Sessions Judge found the participation of accused Ram Singh as not proved. How ever, he found the present appellants guilty as stated above and sentenced them as noted already. Aggrieved, the appellants have come to this Court.
27. Learned Counsel for the appellants challenges the veracity of the prosecution story and it is submitted that the only alleged independent eye witness of the incident, namely. PW 4 Hari Singh has not supported the prosecution story. Even otherwise, his statement Is not of much use to the prosecution because he is merely a chance witness. It is urged that Smt. Vimla and Smt. Santaro are close relatives of the deceased Om Prakash and Mangeram. They are highly interested and partisan witnesses. Their statements are highly discrepant, artificial and unnatural. This is true that both of them had received some injuries in the firing that took place at the scene of occurrence but it appeers that they received injuries from some pellets fired at from a long range and they could not have seen or identified the actual assailants. They must have run away immediately after receiving their injuries and would not have stayed on at the scene of occurrence to witness the incident. They are untruthful witnesses because it is evident from the prosecution case that deceased Om Prakash and Budh Ram were armed with guns and each one of them was carrying bandoleer full of cartridges. Om Prakash and Budh Ram must have fired numerous rounds from their bandoleers, since a large unmber of ampties were found near their dead bodies. Yet these witnesses do not say a word about firing made by Om Prakash and Budh Ram. It is further submitted that the recoveries made in this case arc of doubtful nature and they do not at all inspire confidence. The recoveries made in this case do not sufficiently and adequately connect the accused-appellants with the crime. It is urged that the deceased persons has a number of enmies in the village and it appears that initially deceased Om Prakash and Budh Ram started firing at Inder Singh, who was all alone going on his tractor trolley. This firing must have attracted villagers and on their arrival, the deceased must have filed at such villagers and in reply, the deceased persons might have received fatal shots at hands of such villagers who must have fired at them and who remained unidentified. Since the deceased persons were on inimical terms to the appellants, they must have been roped in. It is urged that the FIR in this case was not lodged promptly and this also raises a doubt about the veracity of the prosecution case. It is further submitted that it was a strange co-incidence that the accused persons started with Hari Singh for Bhadara and by strange co-incidence, the accused appellants met them and attacked them. This co-incidence is only unnatural’ and does not inspire confidence. It is urged that the true genesis of the incident has not been disclosed at all.
28. Learned P.P. very ably assisted by Mr. Bhagwati Prasad has urged that the findings of the trial court in this case are unexceptional and are based on proper appreciation of evidence. It is urged that the genesis of the prosecution case has been sufficiently unfolded by the testimony of Had Singh, which deserves to be accepted. It is submitted that some discrepancies are bound to occur in the version given by even most truthful witnesses. Smt. Vimla and Santaro are illiterate ladies and if some discrepancies have occurred in their evidence, their testimony cannot be rejected outright. It is submitted that the FIR in this case was lodged as promptly as possible and the same corroborates the testimony of the eye witnesses. It is urged that testimony of the eye witnesses is also corroborated by medical evidence as also by ballistic evidence and hence, this Court should not interfere with the convictions and sentences of the accused-appellants.
29. We have given our earnest consideration to the rival contentions at the Bar and have carefully perused the judgment of the learned court below as also the evidence adduced in the case.
30. At the outset, we would like to observe that there is absolutely no doubt in our minds that an incident did take place in the forenoon of 15-9-1984 on the outskirt of village Sardarpura Bas in the field of Puran Kanvasara. There is absolutely no doubt that in this incident, fire arms must have been used by the assailants and deceased Om Prakash Mange Ram and Budh Ram were killed due to fire arm injuries. This fact is also established beyond any manner of doubt that during this incident, at some point of time. Smt. Vimla and Smt. Santaro were also got hurt by pellets shot from fire arms. This aspect of the prosecuction story bas not been challenged before us and on the evidence on record, we have no hesitation to accept this part of the prosecution story.
31. Before we proceed to consider the contentions raised on either side, it would be profitable to briefly state the testimony given by three principal witnesses before the trial court. We have already given a brief gist of evidence while narrating the prosecution story. How ever, a more detailed account deserves to be given here so that the evidence of the three witnesses, namely, Smt Vimla, Smt. Santaro and Shri Hari Singh may be appreciated and evaluated properly.
32. Smt. Vimla has deposed that on the fateful day, she was at her Dhani. Her sister-in-law Smt. Santaro, her mother Smt. Jaharo and her husband Har Lal were also present there. At about 10 a.m. she heard some gun shots being fired at which she along with Smt. Santaro and Smt. Jaharo rushed towards the field of Purna Kanvasara. When she was at a distance of about 10-11 Pawandas, she saw Mange Ram, Budh Ram and Om Prakash sitting in the Khola (Channel). She saw accused-appellants Ram Swaroop, Jai Singh, Dariya Singh, Inder Singh, Fateh Singh, Daula Ram, Kashi Ram, Bhadar, Amar Chand and co-accused Gurdayal and Bhoop Singh firing towards Om Prakash, Budh Ram and Mange Ram. She saw Ram Singh co-accused standing near a jeep, which was parked in the Shamlat land of Chhota Ram. According to her, Ram Swaroop and Jai Singh were firing from towards the north side of the Dhani of Puran Kanvasara. Dariya Singh, Fateh Singh, Inder Singh and Hardeva had taken positions behind a ‘Khejdi’ tree and were firing from towards west of the Khala. According to her, she rushed to the rescue of her brothers, at which Jai Singh and Ram Swaroop pushed her and told her to run away or else, they will shoot her also. Not desisted by this threat, she along with Smt. Santaro proceeded further towards the Khala at which Jai Singh and Ram Swaroop proceeded of them towards Khala and Jai Singh shot at Budh Ram and Ram Swaroop shot at Mange Ram. Budh Ram and Mange Ram fell in the channel. Then accused Fateh Singh shot at Om Prakash with the result that Om Prakash also fell in the channel. During this firing, she also received some pellets from the guns on her back, abdomen, shoulders, hands and feet. Accused-appellants Inder Singh, Amar Chand, and Dariya Singh caught hold of Smt. Santaro and gave beating to her by butts of their guns. Thereafter all the accused persons surrounded Smt. Vimla and Smt. Santaro. Then Mange Ram, Budh Ram and Om Prakash were given beating by butts of guns and Lathis by the accused persons. Thereafter Jai Singh picked up the gun of Om Prakash and Fateh Singh picked up the gun of Budh Ram. After this, she ran away from the scene of occurrence and reached her Dhani. At her dhani, she informed Smt. Jaharo of the incident and told her that Mange Ram, Budh Ram and Om Prakash had been murdered by the accused persons by firing gun shots and Smt. Santaro was lying at the scene of occurrence. She further states that thereafter she took her niece with her and went towards village Badi Dhani From there, she boarded a bus and went to Bhadara. At Bhadara, she visited the Hospital and got her injuries examined. She also received some treatment.
32-A. She further states that after about an hour or so, the Police arrived at the hospital and made enquiries from her about the incident and her statement Ex.P 1 was recorded. In her cross-examination, she admitted that deceased Om Prakash was armed with a 12-bore gun belonging to Het Ram father-in-law of Sant Lal. She also admitted that Budh Ram was also armed with a gun. She further admitted that Om Prakash and Budh Ram each had takers away a bandoleer of cartridges while leaving the Dhani. She states that she did not know if Om Prakash and Budh Ram had fired any shots or not. According to her, she did not see Budh Ram and Om Prakash even pointing their guns towards assailants. In her statement Ex.P 1 to the Police, it is mentioned that besides the accused persons named by her there were 8 to 10 more persons belonging to village Chindada and they had guns in their hands and they were firing. In cross-examination, she has disowned this part of the statement and has said that she did not mention that there were 8 to 10 persons belonging to village Chindada, who were firing with the guns. She has admitted that she did not mention name of accused Amar Chand in the statement Ex. P1. The reason given by her is that she did not know name of Amar Chand prior to the occurrance but knew him only by face. In her cross-examination, she stated that the assailants were armed with guns as well as with pistols. She has asserted that she had stated this fact while giving statement Ex. P1. She admits that the fact that some of the assailants were armed with pistols, was not mentioned in statement Ex P1. The portion A to B of Ex.P1. mentions that all the assailants were armed with guns. In cross-examination, she resiled from this part of the statement. A suggestion was given to her that she had modulated her statement in view of the challan filed by the Police on this aspect of the matter. She has, how ever, denied the suggestion.
32-B. She asserted that in her statement Ex P1, she had stated that Budh Ram, Om Prakash and Mange Ram were given beating by lathis. When her attention was drawn towards omission on this aspect, she replied that if this fact was not recorded, what could she do about it. Her attention was drawn towards Ex. P1 in which she did not mention that Budh Ram,, Mange Ram and Om Prakash were given beating by butts of the guns She was unable to explain this omission.
32-C. She has admitted in her cross examination that when she-reached the scene of occurrence she saw all the three deceased sitting in the khala and at that time, none of them had any injuries. In her previous statement Ex. P1, there was no mention of the fact that Ram Swaroop and Jai Singh were firing guns from near the Dhani of Purna Mal. She give a stock reply that if this fact was not mentioned in Ex. P1, what could she do about it. She admitted that in Ex.P 1, she did not mention that Ram Swaroop and Jai Singh had proceeded towards, the khala and had then fired. She maintained that in the statement Ex. P1, she had mentioned that Hardeva, Inder, Dariya and Fateh Singh were firing from the eastern side. When confronted by the omission on this aspect, she again gave the stock reply that if this fact was not recorded in Ex.P 1, what could she do. Her attention was drawn towards omission in Ex.P 1 regarding Smt. Santaro being caught hold of by Inder. Dariya and Amar Chand and she again gave the stock reply that if this fact was not recorded in Ex.P 1, what could she do. She maintained that she had stated in Ex.P 1 that other accused persons had fired from the western side of the khala. On being confronted with omission on this aspect, she again gave the aforesaid stock reply. A suggestion was given to her that she had modulated her statement in view of the site plan prepared by the Police. She has denied this suggestion.
33. She maintained that she had stated in Ex.P 1 that she had informed her mother at the Dhani about this incident. When asked about this omission in Ex.P 1, she again gave the aforesaid stock reply.
33-A. In cross-examination, the defence theory was put to her that at the time of incident, accused Inder was proceeding from his field, which lay to the waste of the Khala, to his house at Sardarpura Bas and at that time, the three deceased persons armed with guns and Smt. Vimla the witness armed with a pistol and Smt. Santaro armed with a lathi proceeded towards Inder Singh to assault him and these persons took position in the khala. It was suggested that when these persons fired towards them, some pellets hit the trolley and then some people from Chhote Bas came there and fired gun shots resulting in injuries to Smt Vimla and her companions. She had denied this suggestion. In further cross-examination by Shri Inder Singh Hawala, she maintained that she had stated in Ex.P 1 that the accused persons had threatened her. On being confronted with omission on this respect, she again gave the stock reply that if this fact was not mentioned in Ex P1, what she could do. She admitted in further cross-examination that Budh Ram and Om Prakash had fallen in the khala on receiving the fire shots and thereafter they did not get up. She maintained is further cross-examination that the accused persons had surrounded the witness and her Bhabhi Smt. Santaro and this fact she had mentioned in Ex.P1. She was again confronted on this aspect and she came with the same stock reply. She maintained that she has stated in Ex P 1 that Mange Ram, Budh Ram and Om Prakash were sitting in the khala. Her attention was drawn towards omission on this aspect in Ex. P1 and the again gave the stock reply that if this fact was not mentioned in Ex P 1, what could she do about it. She maintained in cross-examination that Mange Ram was not earning any gun at the time of the incident. On this, she was confronted with her previous statement Ex P 1 that mentions that Jai Singh and his brothers had picked up guns of Budh Ram and Mange Ram from the spot. She resiled from this statement in cross-examination.
34. PW 5 Smt. Santaro his deposed in her examination-in-chief that on the fateful day at about 9 or 10 a.m., she was in her Dhani. At that time, Om Prakash, Mange Ram, Budh Ram and Hari Singh started towards Chhota Bas. After half an hour, she heard some gun shots, at which she along with her sister-in-law Smt. Vimla went to the scene of occurrence followed by her mother-in law When these persons reached the field of Purna Kanvasara, they saw Omprakash, Mange Ram and Budhram sitting in the khala. Hari Singh was not with them at that time, According to her, Jai Singh and Ram Swaroop had taken positions behind a ‘janti’ tree and were firing towards Om Prakash and Mange Ram. Dariya Singh, Hardeva, Fateh Singh and Inder Singh were standing towards the eastern side of the khala and were firing- This witness and Smt. Vimla proceeded towards the accused persons as which Jai Singh and Ram Swaroop pushed them and threatened to kill them. According to this witness, Bhadar, Kashi and Daula were standing towards the west of the khala and were firing towards Om Prakash, Mange Ram and Budh Ram. These persons were standing in a ‘bajari’ field and were at a distance of about 10 pawandas while Jai Singh and Ram Swaroop were at a distance of 5 to 7 pawandas from the khala. She added that Amar Chand was also present at that time.
35. She had further stated that Jai Singh rushed towards Budh Ram and shot at him. Ram Swaroop shot at Mange Ram and Fateh Singh shot at Om Prakash. According to her, she had seen the occurrence from a distance of 2 to 4 pawandas. Accused Daula and Kashi fired at her with the result that she got injuries on her right knee as also on her neck and head. Her sister-in-law Smt. Vimla also received some pellets on her hands, feet, head and back. According to her, Smt. Vimla went away towards Dhani. She has further stated that after having fired at Budh Ram, Mange Ram and Om Prakash, accused persons gave beating to them with lathis. She was also given a lathi beating by Bhadar. Thereafter all the accused persons went away. She them crawled to her Dhani. Later on, she was taken by Police to Bhadara Hospital, where her statement was recorded. In her cross examination, she has stated that when she heard gun shots, she was all alone in her Dhani and likewise, Smt. Vimla was in her own Dhani. On gun shots being heard, Smt. Vimla came to her Dhani and both of them went to the scene of occurrence. According to her, she first of all saw accused Dariya Singh, Fateh Singh, Hardeva and Inder Singh when they were at a distance of about 20-25- pawandas from Mangeram and Om Prakash. According to her, at that time, accused Daula, Kashi and Bhadar were at a distance of 10 pawandas and they were positioned behind a kotha. She was confronted with her previous Police statement Ex. 02 wherein this fact was not mentioned that Dariya Singh, Fateh Singh, Hardeva and Inder Singh were firing from the eastern side of the khala. Her reply was that if this fact was not mentioned in Ex.D 2, what could she do. She has stated that she had mentioned in Ex. D2 that Amar Chand, Gurdayal and Bhoop were also firing. She explains the omission on this aspect in Ex. D2 by giving stock reply that if this fact was not mentioned in Ex.D2, what she could do. She maintained that she stated in Ex.D2 that accused Fateh Singh had fired at Om Prakash. She was confronted with portion A to B of Ex.D 2 wherein she had stated that she did not know, who had fired at Om Prakash. She disowned this statement. She maintained that she stated to the Police that Daula and Kashi had fired at her resulting in injury on her knee. Omission on this aspect is again explained by a stock reply that if this fact was not recorded in Ex D 2, what she could do. She maintained that Bhadar had given a lathi blow on her hand and she had mentioned this fact in Ex. D2. On being confronted with regard to this omission, she has again given the stock reply.
36. In her cross-examination, she stated that when Om Prakash and Budh Ram were carrying guns then they must also be having cartridges with them but she stated that she did not see Budh Ram or Om Prakash firing. She states that when she reached the scene of occurrence at that time, Budh Ram, Om Prakash and Mange Ram did not have any injuries.
37. She has admitted that she had no time or occasion to fall upon Om Prakash with a view to rescue him. She was confronted with portion C to D of Ex. D2 where in she had stated to the contrary. She disowned this part of the Police statement. She stated that she had mentioned in Ex. D2 that Mange Ram, Budh Ram and Om Prakash had been given beating by lathis. On her attention being drawn to this omission in Ex. D2, she again came out with the stock reply that if this fact was not recorded, what she could do.
38. Learned trial court dismissed the various improvements, contradictions and discrepancies in the statements of these two witnesses and their earlier statements by saying that when Smt Vimla was admitted in the Hospital, her general condition was serious and she must have been purturbed and disturbed because she herself had received injuries and, therefore, omissions are bound to be there in her statement. He has further opined that when so many persons were firing, it could not be expected of the witness to state which of them were having pistols and which of them were having guns. Likewise, she could not be expected to state which of the assailants were carrying lathis. According to him, such omissions and contradictions were natural and, therefore, the statement of PW 1 Smt. Vimla cannot be held to be unreliable. He has dismissed the discrepancies in the testimony of Smt. Santaro by saying that her statement was recorded much later and improvements and contradictions were not such as were not corroborated by the statement of Smt. Vimla and the medical testimony.
39. Learned Counsel for the appellants had submitted that the discrepancies, contradictions and improvements in the statements of Smt. Vimla and Smt. Santaro reader their testimony unbelievable and their evidence should be wholly rejected. It is submitted that their testimony is not in accord with the medical evidence on record. As against this, learned P.P. and the learned Counsel for the complainant urged that the contradictions, omissions and discrepancies in the testimony of the two witnesses were natural. Both the witnesses were illiterate rustic ladies and the various omissions, contradictions and discrepancies brought out in their testimony do not detract the worth of their evidence. Medical evidence sufficiently corroborates their evidence.
40. We have carefully considered the matter. Some discrepancies, omissions and contradictions are bound to occur even in the testimony of most truthful witnesses. Some contradictions, discrepancies and omissions are natural particularly when the witnesses are rustic ladies. We have, how ever, to see if the omissions, contradictions and discrepancies in the testimony of these witnesses are such as to reader their evidence unreliable. We have also to see if their testimony is in any way in conflict with the medical evidence on record.
41. First, we may take up the medical evidence. Dr. Brijmohan Chaudhary has categorically stated that injury No 3 on the person of Om Prakash had been caused by a sharp edged weapon (see page 86 of the paper book). None of the two witnesses states that any of the assailants was armed with a sharp edged weapon. Injuries found on the person of Om Prakash indicate that he must have been fired upon at least twice from a short range. Injury No 1 must have been caused by filing from the front side, while injury Nos. 4, 7 and 8 must have teen caused from the back side. The same appears to be the position of Mange Ram. His injury Nos. 1 and 2 appear to have been caused from the front while injury Nos. 3 and 4 appear to have been caused from the back. Budh Ram received injury No. 1 from the buck while injury No. 4 was caused from the front. Thus each of the three deceased must have been shot at more than once. Since all these injuries carried blackening, they must have been caused from a comperative close range. Smt. Vimla has apportioned one gun shot by Jai Singh to Budh Ram and one gun shot by Ram Swaroop to Mange Ram and one gun shot by Fateh Singh to Prakash. Though she speaks of firing by all the accused persons, she does not state if gun shots from any other accused hit the aforesaid deceased persons. She has admitted in her statement (page 65 of paper book) that when she reached the spot, she did not see any injury on the persons of the deceased persons. This, according to her, each of deceased received one gun shot each only as per apportionment made by her. Similar is the testimony of Smt. Santaro, who has also made a similar apportionment. According to her, gun shot fired by Jai Singh hit Budh Ram, gun shot fired by Ram Swaroop hit Mange Ram and gun shot fired by Fateh Singh hit Om Prakash. She speaks of only one gun shot each being fired by these three accused. She does not state that gun shots fired by any other accused hit the deceased. Nor does she state that any of these three accused fired a second shot at any of the deceased. Dr Brijmohan Chaudhary has categorically stated that at least in case of Mange Ram, be must have been shot at least twice.
42. These discrepancies between the ocular evidence and the medical evidence go to show that Smt. Vimla and Smt. Santaro either did not witness the actual firing made on the deceased or they are not giving a completely truthful account of the incident. Non-explanation of sharp weapon injury on the ear of Om Prakash also strengthens this suspicion.
43. It is interesting to note that the Investigating Officer prepared site plan Ex. P/26 and its index Ex. P/26A at the instance of alleged eye witness Harlal and marked point M as the place where Harlal claimed to be standing at the time of firing, He marked point D in the site plan from where Poorna Kanvasara claimed to have seen the occurrence. He marked point L from where Hari Singh claimed to have seen the occurrence. It may be stated that Hari Singh has not supported the prosecution version. Harlal and Purna Kanvasara have not been examined at all. Neither Smt. Vimla nor Smt. Santaro depose about the presence of Harlal or Purna Kanvasara. The site plan does not show the place from where Smt. Vimla and Smt Santaro might have seen the occurrence.
44. The contention of the learned Counsel for the appellants is that accused-appellant. Inder Singh was going on his tractor trolley when the deceased persons stated firing at him. Some pellets hit Inder Singh and certain others hit his trolley as would be evident from Ex. P/51. At this Inder Singh ran away. The deceased were having enmity with a large number of people in the vicinity and such persons might have assembled at the spot and must have started firing towards the deceased and Smt. Vimla and Smt. Santaro, who must have been with the deceased from the very beginning, at such firing Smt. Vimla and Smt. Santaro must have run away after receiving some injuries and the rest of the incident must not have been witnessed by them. The deceased must have fired numerous rounds towards such assembled persons emptying the two bandoleers full of cartridges and such persons must have fired towards the deceased persons killing them. It is urged that due to previous enmity, the other accused persons have been roped in. The above circumstances alone explain the gaps in the evidence of Smt. Vimla and Smt. Santaro.
45. We are left guessing as to why the prosecution did not examine the alleged eye witnesses. Har Lal and Purna Kanvasara We are also baffled why the Investigating Officer did not mark the spots from where Smt. Vimla and Smt. Santaro claimed to have seen the occurrence, eves though he took pains to mark the spots from where Har Lal and Purna Kanvasara claim to have seen the incident. This strengthens the possibility indicated by the learned Counsel for the appellants.
46. We may readily state that injured eye witnesses, particularly when they are near relatives of the deceased normally would not allow the real delinquent to go scot free and would also not rope in innocent person’s. But, in a case where unknown assailants have killed the kith and kin of such witnesses and the witnesses have not really identified the assailants then the witnesses do have a tendency to rope in innocent persons, who are on inimical terms with them. In the present case, there was definite enmity between deceased Om Prakash and Budh Ram on one hand and appellants Jai Singh and others on the other. This enmity is a double edged weapon. On one hand it could furnish motive to appellants to kill the deceased persons. On the other hand, it could equally give a, handle to injured eye witnesses to rope in the enemies. Hence, we shall have to be very careful while assessing the testimony of Smt. Vimla and Smt. Santaro.
47. We may point out that Smt. Vimla and Smt. Santaro have not explained how bandoleers of Om Prakash and Budh Ram came to be emptied. This fact indicates that the deceased Om Prakash and Budh Ram must have tired many rounds before they were finally killed. Silence of Smt. Vimla and Smt. Santaro on this aspect of the matter is baffling. The Investigating Officer Maniram has admitted in his cross-examination (page 166 of the paper book) ;g ckr lgh gS fd iw.kZjke xokg us eq>s ,slk cryk;k Fkk fd vkseizdk’k ekxsjke o ,d vkneh vkSj tks muds lkFk xksyh;ka pyk jgs Fks A^^ Inspite of this admission, the prosecution did not care to examine Puran Kanvasara which is mysteriously inexplicable.
48. It would be reasonable to conclude that such of the deceased persons, who were carrying guns and bandoleers, must have fired rounds from their guns, prior to their receiving fatal or disabling shots Assuming for the sake of arguments that it were the present appellants, who had fired at the deceased persons, it shall yet have to be seen as to how the incident commenced. Smt. Vimla and Smt. Santaro do not speak of the genesis of the incident. The only witness who speaks of such genesis is PW 4 Hari Singh. But, his testimony has not been relied upon before the trial court, even by the prosecution. According to him, the deceased along with this witness was going along the Khala, when all of a sudden 40 to 50 persons surrounded them. Such persons came in jeeps and tractors and all of a sudden started firing at the witness and his companions. At this, he ran away from there and concealed himself in a Bajri field. Budh Ram, Mange Ram and Om Prakash received gun shot injuries and died at the spot. Now, before us it has been contended that the testimony of this witness should be accepted to unfold the genesis of the incident and this statement should be accepted as supplement to the statements of Smt. Vimla and Smt Santaro. We are afraid, we cannot do so. The testimony of this witness is to the effect that some 40-50 unidentified persons had assembled and had fired at the deceased persons. This evidence is not in accord with the testimony of Smt. Santaro and Smt. Vimla, who confine the number of assailants to the present appellants and two others. The testimony of this witness is also not in accord with the medical evidence, with 40 to 50 persons firing at the deceased, would have received a larger number of injuries, than found in the present case. This witness is a resident of Dhilki. Smt. Vimla has admitted (page 63 of the paper book) that Harisingh lived at a distance of 10-12 Kos from her village. This witness appears to be a chance witness and his presence at the scene of crime is hardly reliable. It is surprising that though 40-50 persons were firing at him and his companions, yet he did not receive a single injury and could escape unhurt in the Bajri field. Hence, we place no reliance upon his testimony at all and discard the same as unworthy of credence. Suffice, it to say at cost of repetition that his testimony was not relied upon by the prosecution even before the trial court, and the learned PP there subjected him to cross-examination because he had resiled from his earlier police version on material particulars.
49. We have already read the evidence of Smt. Vimla and Smt. Santaro and we find that Smt. Vimla has extensively improved upon her previous Police statement on material aspects and when ever she was asked to explain the discrepancy, she gave a stock reply that if the Police did not record it, what she could do about it. Citing some of the discrepancies inner previous Police version and the trial court version would illustrate the point. In her FIR, she had stated 8-10 persons belonging to village Chindad as accompanying the appellants as assailants. At trial, she has disowned this part of the story altogether. In the FIR, she had categorically stated that her mother had also reached the spot. At the trial, she gives a go bye to this strory and claims to have gone to the Dhani and then claims to have told her mother about the incident In the FIR, she did not even faintly suggest that any of the accused were armed with pistols though at the trial, she came out with the version that some of the assailants were armed with pistols. In her Police version, she did not assign the various positions, the assailants are said to have taken up while firing, though at the trial, she did ascribe specific positions, presumably to bring her testimony in line with the site plan. In the FIR, she vaguely stated that Om Prakash received a gun shot and fell down. At the trial, she improved upon this statement and specifically ascribed the role of shooting at Om Prakash to Fatehsingh. In the FIR, she vaguely stated that Smt. Santaro was caught hold by 3-4 persons. At the trial, she specifically assigned this role to Inder Singh, Amar Chand and Daria Singh. In the FIR, she did not state that Budh Ram, Mange Ram and Om Prakash had been given any beating after they had fallen dead by lathis or butts of guns but at the trial, she suggested that they had been so beaten. Most probably, this improvement was made with a view to fit in with the medical evidence, which showed blunt weapon injuries on the persons of the deceased. Hence, we are of the view that Smt. Vimla is not at all a wholly reliable witness.
50. So far as Smt. Santaro is concerned, we may state that the Investigating Officer did not record her statement promptly. The statement was recorded on 18-9-1984, as is stated by Investigating Officer Mani Ram. By that time, the site inspection had been made and post-mortem examinations had also been made. This delay in recording her statement goes to show that time was utilized to give her opportunity to fill gaps in the prosecution version. It is significant that Smt. Santaro in her examination-in-chief does not state at all that any of the assailants were armed with guns or pistols. She speaks only of firing being done. The learned PP, who conducted the trail was under duty to ask the witness to state as which of the assailants carried guns and which of them carried pistols. Unfortunately, he did not interrogate the witness on such an important aspect of the matter. She did state that Daula and Kashi had fired guns at her. Thus, the learned PP concluding the trial has been guilty of dereliction of duty.
51. We may state that even, Smt. Santaro has made vital improvements upon her Police statements. To illustrate only one of such improvements, we may observe that at trial she stated that Fateh Singh had shot at deceased Om Prakash. Significantly, she did not say so in the previous Police statement Ex. D2. Rather, in portion A to B of this statement, she had contrarily stated that she did not know as to who had shot at Om Prakash. At the trial, she specifically stated that after Budh Ram, Om Prakash and Mange Ram had fallen by receiving gun shots, they were assaulted by accused persons. She did riot state so in Ex. D2 and on being asked to explain the omission, gave the stock reply if the Police did not record it, what she could do. Thus, we find that this witness is also no a wholly reliable witness.
52. Now, assuming for a moment that it were the present appellants who fired at the deceased persons and killed them, we shall have yet to see if the incident had taken place in the manner suggested by the prosecution. We have already stated that the true genesis of the incident has not been unfolded at the trial. There is absolutely no evidence to show that the accused appellants knew from before hand that the deceased persons would be going that day to Bhadara. When it is so, it shall be safe to presume that the meeting between the two groups was purely a chance meeting. The prosecution to succeed shall have to establish that the appellants were aggressors and not the deceased persons. Learned P.P. as also counsel for complainant contend that on the side of the appellants, at best one person Inder Singh as said to have been injured. Had the deceased persons been aggressors, more persons amongst appellants should have been injured, particularly when Om Prakash and Budh Ram had been carrying guns as well as bandoleers of cartridges. They would not have allowed the other appellants to go unharmed, as is the case here. Learned Counsel for appellants, contends that when Inder Singh had been fired at, assuming that other appellants were present, though not admitting this fact, the appellants must have fired in self defence. In the peculiar circumstances when two of the deceased must have fired quite a good number of rounds, the appellants must have also taken pre-cautions so that they do not got get hurt and must have matched the fire emanating from the side of the deceased killing three of them. The number of persons injured or killed on each side would not be decisive of the fact as to who was the aggressor. This would depend upon who were better marksmen. We do find a good deal of substance in this contention and this adequately explains the genesis of this cross-firing from two sides, resulting in death of three persons on the side of the deceased and injuring of Inder Singh alone form the side of the appellants. It appears to us that Smt. Vimla and Smt. Santaro may have been with the deceased persons, when the initial firing began, and they may have received their injuries during the cross-firing of both the sides.
53. We find that in the facts and circumstances of the case, it has not been established beyond shadow of reasonable doubt that the accused-appellants had formed an unlawful assembly with the object of commiting murder of Om Prakash, Budh Ram and Mange Ram or that they had formed an unlawful assembly with the object of attempting the murder of Smt Vimla and Smt. Santaro. Thus, the charge Under Section 148 IPC, has not been made out against the accused-appellants and we are firmly of the view that it must have been a chance meeting between the accused-appellants and the deceased persons and their companions, which resulted in the tragedy. There is no reliable evidence to show that the accused-appellants were aggressors.
54. We have already stated that certain recoveries of weapons were made by the Investigating Officer in this case. Likewise, numerous empties had also been recovered in the case. Learned P.P. and learned Counsel for the complainant have urged, that since numerous empties have been linked with the weapons used by some of the appellants, the participation of such appellant is established in the occurrence. Learned Counsel for the appellants urges that empties recovered from the spot were not immediately sent to the Forensic Science Laboratory. They were received in Forensic Science Laboratory on 31-12-1984, i.e. long after the various weapons had also been recovered. Hence, a doubt remaining that after weapons were recovered. Hence, a doubt remains that after weapons were recovered, cartridges must have been fired therefrom and then empties would have been recovered. Reliance is placed in this connection on a D.B. judgment of Punjab and Haryana High Court Murder Reference No. 3 of 1983 and Criminal Appeal No. 373 DB of 83) Nirmal Singh v. State of Punjab decided on 31-5-1988, where a similar situation obtained and a similar contention prevailed. We do find some merit in this contention. How ever, this recovery and linking evidence would not advance the case of the prosecution very much particularly when it has not been successfully established that appellants were the aggressors.
55. We may here consider the contention of the learned Counsel for the appellants that FIR in this case had not been registered promptly. According to Smt. Vimla, she immediately left for her Dhani and from there escorted by her niece she came to Badi Gandhi and from there, she came by bus to Bhadara and within one hour police reached there and recorded her statement Ex. P1. PW 8 Pal Ram claims to have recorded this report at 8.15 p.m. and claims to have sent Ex P 1 to Police station, Bhirani, the same day with Makhan Lal. PW 9 Makhan Lal claims to have taken Ex P 1 the same evening to police station, Bhirani, and handed over the same to Sant Lal PW 13, at 8 p.m. who claims to have recorded formal FIR, Ex.P 9 on its basis. But, it appears from medical report of Smt. Vimla Ex.P 2, that Dr. Brijmohan had examined Smt. Vimla on 15-9-1984 at 5.45 p.m. itself at the request of Police Station, Bhirani. How could it be possible, if Makhan Lal had reached Bhirani after recording of Ex.P 1 by Pala Ram at 6.15 p.m. This baffling and this discrepancy has not been explained by the prosecution. Pala Ram has tried to give out that he reached Bhadara hospital on a written report from the hospital. This report has not been produced nor bed head ticket of Smt. Vimla has been produced to show at what time Smt. Vimla had been admitted at the hospital. Pala Ram does not claim that he got Smt, Vimla medically examined.
56. There is one more important fact. Pala Ram has admitted that when he reached Bhadara hospital to record statement of Smt. Vimla, one Chotu Ram Vakil was present there. This circumstance goes to show that there might have been some sort of consultation with a lawyer before Ex.P 1 was recorded. These circumstances create some suspicion about the authencity of Ex. P1 and Ex. P9.
57. Now remain charges Under Section 25 and 27 of the Arms Act. Only accused-appellant Jai Singh has been found guilty of these charges. If the firing had been done by Jai Singh in exercise of right of private defence, then charge Under Section 27 of the Arms Act would automatically fall down.
58. Jai Singh was held guilty of offence Under Section 379 IPC, because he is said to have removed the gun and licence of Budh Ram from the scene of occurrence, after the incident was over. Ex.P 11-A shows that since Jai Singh did not hold licence of this gun, hence case Under Section 25, Arms Act was also registered against him. Hence, we have to examine if the said charges were held established rightly against Jai Singh. It may be stated that Smt. Vimla specifically and categorically stated that Jai Singh had taken away the gun of Om Prakash and gun of Budh Ram had been taken away by Fateh Singh Smt. Santaro does not corroborate this verson of Smt. Vimla. The alleged recovery of gun of Budh Ram from this possessson of Jai Singh does not fit in with this version. This is true that Mani Ram claimed to have recovered one gun of Budh Ram along with licence from the possession of Jai Singh vide Ex.P 11-A Chendi Ram, an attesting witness of this memo has not been examined. PW 10 Sardul Singh has, of course, supported this recovery. But, he does not speak of recovery of any licence. He was not asked to identify the gun recovered from the house of Jai Singh. Now, this witness is elder brother of Smt. Vimla and thus is an interested witness. Hence, this recovery does not inspire any confidence. We, therefore, do not find that charge Under Section 25, Arms Act or one Under Section 379 IPC, has been brought home to the accused.
59. The view that we have taken of the evidence on record does not establish a charge Under Section 148 IPC, against the appellants. For the same reason, charge Under Section 302; IPC against Jai Singh and Ram Swaroop has not been established. For the same reason, charges under Section 302/149 or 307/149 IPC, have not been established beyond reasonable doubt against any of the appellants.
60. There is yet one more aspect of the case. To establish the connection of the accused-appellants, the prosecution tried to establish that besides a gun and licence of Budh Ram being recovered from Jai Singh, other weapons were also recorded at the instance of some of the other accused-appellants already noted earlier. Even the learned trial court has neither framed charge nor recorded conviction of such accused-appellants for offences Under Section 25 or 27 of the Arms Act. In other words, such recoveries were not held satisfactory to connect the accused-appellants with the crime. This is an important aspect, which cannot be lost sight of.
61. We regret that three broad day light murderes took place in this case and three precious lives were lost and the alleged assailants are going unpunished in this case. But, the prosecution has to establish its case beyond shadow of reasonable doubt. May be, the prosecution case has some element of truth in it. But, that is not sufficient. The prosecution had to establish that its case must necessarily be true. There is a long distance to be travelled between ‘may have committed the crime’ and ‘must have commited the crime’. The prosecution has failed to traverse this distance.
62. The result is that we accepted the appeal, set aside the judgment and the convictions of the accused-appellants for all the charges, noted at page 2 of this judgment and acquit them of all such charges, giving them benefit of reasonable doubt. Fines if paid shall be refunded. Such of the accused-appellants who are in custody, shall be released forthwith, if not required in any other case and such of them, who have already been released on bail, need not surrender to their bail bonds and their bail bonds and personal bonds shall stand discharged.