Rajendra Saxena, J.@mdashThese appeals have been preferred by the accused appellants as well as the State of Rajasthan against the judgment dated 10-6-85 passed by the learned Sessions Judge, Jalore, whereby he found accused Savia guilty of the offences u/s 302, 307/34, 447 IPC and Section 27, Arms Act and sentenced him to life imprisonment together with a fine of Rs. 200/- & in default to further undergo two months rigorous imprisonment under the first count, five years'' R.I. together with a fine of Rs. 100/- & in default to further undergo one month''s R.I. for the second count, one month''s R.I. for the third count and six months'' R.I. for the last count. He found accused Teja guilty of the offences under Section.307 and 448 IPC and sentenced him to seven years R.I. with a fine of Rs. 200/- and in default to further undergo two months'' R.I. for the first count and to six months R.I. together with a fine of Rs. 100/- & in default to further undergo one month''s R.I. under the second count. Accused Magna was also found guilty of the offences u/s 307/34 and 448 IPC but was sentenced to five years'' R.I. with a fine of Rs. 200/- & in default to further undergo two months" R.I. under the first count and to six months'' R.I. with a fine of Rs. 100/- and in default to further undergo one month''s R.I. for the second count. All the substantive sentences were ordered to run concurrently. The learned Sessions Judge vide his impugned judgment, however, acquitted co-accused Samia of the offences u/s 302/34 307/34,449 and 323 IPC and appellants Teja and Magna of the offence u/s 302 r/w Section 34 IPC. Therefore, appellants Savia, Teja and Magna have filed their appeal u/s 374 (2) Cr.P.C. against their conviction, while the State has filed its appeal u/s 378 Cr.P.C. against the acquittal of accused Samia, Teja and Magna. These appeals are being decided by a common judgment.
2. The prosecution case as unfolded during trial is that on the night intervening 5th and 6th August, 1983, PW 5 Mangilal along with his wife PW 7 Amia was sleeping in a room of the ''Mand'' (dwelling place) situated in the Jav (agricultural field) near the Mahadev temple and Bera (well) of his brother-in-law (Jija), PW 4 Lachhi Ram in village Umedabad alias Gole. In that Jav, PW 4 Lachhi Ram and his brothers PW 1 Bhola Ram, PW 3 Lehra Ram and Bhagga (deceased) were also living in their respective houses. At about 2-2-30 AM, PW 5 Mangilal woke up due to the injuries sustained by him on his chest. He found that accused Magna was pressing his neck by both hands, while accused Teja was inflicting dagger blows on him. He screamed. Thereupon, his wife Smt. Amia (PW 7) was awakened. She also saw accused Magna pressing her husband''s neck, accused Teja inflicting dagger blows to Mangilal. They raised alarm, whereupon PW Lachhi Ram, Lehra Ram, Bhoma Ram and Bhagga (deceased) also got up and rushed towards the ''Mand'' of Mangilal. Meanwhile, one of the culprits, who was standing outside the said ''Mand'' asked accused Magna and Teja to come out and thereupon accused persons fled away. PW 5 Lachhi Ram, Bhoma Ram, Lehra Ram and Bhagga (deceased) saw those four persons running in the light emanating from the electric bulb of the temple. Smt. Amia told them that enemies were running away after inflicting injuries. Thereupon, Lachhi Ram and his aforementioned brothers hotly pursued the accused persons, who by that time, had entered the field of Lachhi Ram, where ''bajra'' crop was standing. It is alleged that at that point of time, appellant Savia fired his gun towards Bhagga, who was standing in the ''Rizka'' grass but that shot did not hit him. Thereafter, appellant Savia in quick succession fired twice causing injuries to Bhagga on his right and left thighs resulting into extensive compound fracture of right femur bone and extensive injuries to the large vessels of right thigh causing massive haemorrhage. Bhagga succumbed to his injuries on the spot. It is alleged that thereafter accused persons ran away towards the road, leaving a pair of shoes, one hockey, two empty cartridges and a piece of magnet in that field near the dead body of Bhagga Ram. It is the case of the prosecution that accused Magna was armed with a hockey, accused Teja had a dagger and that on the barrel of accused Savia''s gun, a torch was also fitted and that in the light of that torch, he had fired those shots towards Bhagga. It is alleged that immediately after the said incident, Lachhi Ram tried to inform the police through the telephone installed on his ''Bera'' but the said telephone did not work. In the morning, he found that somebody had cut telephone wires near the road. However, on 6-8-93 at about 7.10 A.M., PW 16 Jalal Khan, ASI.,P.S., Jalore received a telephonic message from one Rawat Bhati, Sarpanch, Umedabad (Gole), who informed that on the ''Bera'' of the Lachhi Ram, a quarrel had taken place, wherein number of persons received extensive injuries. This information was recorded in the daily diary of the police station vide report No. 201 (Ex. P. 36-A). Since this information was vague, Jalal Khan, A.S.I. rushed to village Umedabad, where Lachhi Ram submitted a written report Ex. P.4 at about 8.15 AM. This report was sent to P.S. Jalore through Nen Singh, Constable, where a formal FIR Ex. P.23 was scribed and the case was registered.
3. PW 5 Mangilal, whose condition was serious, had already been taken to Primary Health Centre, Sayla. PW 12 Dr. Keshav Kotwani recorded his dying declaration Ex.D.5 at 9 A.M. on the police requisition Ex.P. 16. Dr. Kotwani found the following injuries on the person of Mangilal vide M.L.R. Ex. P.17:
"1. incised wound spindle shaped with everted edges and sharp margins measuring 1 1/2 x 1/2 x 1/2 cms near outer angle of left eye brow on forehead ;
2. incised wound with everted edges and sharp margins measuring 1 1/2 x 1/2 x 1 cms on right forearm medial;
3. two incised superficial wounds with everted edges and sharp margins 1/2 x 1/2 cm and 2 x 1/2 cm on the base of right ear (pinna & labula);
4. transversed incised penetrating wound with everted edges and sharp margins with a continuous superficial abrasion. There was hissing of air from wound on coughing and breathing due to injury to pleura and lung;
5. superficial incised abrasion measuring 4 cms long;
6. an oblique incised penetrating wound with everted edges and sharp margins measuring 2 1/2 x 1 cms on right side of the chest with froathy bleeding. Coarse crepts were heard all over the chest;
7. an oblique incised penetrating wound with everted edges and sharp margins measuring 2 x 1 cm x lung deep with injury to intercostal muscles on left side of the chest at eighth intercostal space. There was hissing of air sounds through the wound on coughing and breathing with frothy blood from injuries to pleura and lung ;
8. a transversed incised wound with everted edges and profuse bleeding measuring 2 x 1 cm x bone deep on left lateral side of back of third lumber vertebra."
4. In the opinion of the Doctor, injury Nos. 4, 6 and 7 were grievous in nature while other injuries were simple. Those injuries were caused by sharp edged weapon. Their duration was about six hours. Injuries No.4, 6 and 7 were lung deep and likely to prove dangerous to life. Keeping in view his precarious condition Mangilal was referred to Govt. Hospital, Jalore on the same day.
5. Dr. Kotwani also conducted the post mortem examination of the dead body of Bhagga on the same day at 2 P.M. He found following injuries :
" 1. A gun shot wound (entry wound) with round hole measuring 1 x 2 1/2 cm on the lateral side of the right thigh. Eight cm. above the right knee joint. The wound was deep across the wound of exit on opposite side of thigh. There was no charring of skin ;
2. A gun shot wound of entry as a round hole 3/4 x 3/4 cm and deep across the wound of exit on opposite side of thigh ;
3. A gun shot wound of exit as an extensive gopping lacerated wound 18 cm x 10 cm x deep upto the wounds of entry, which was detected on medial aspect of right thigh above the right knee. There was excessive laceration of all the muscles and vessels with compound fracture of right femur bone, which was broken into several pieces. Charring of muscles and bone pieces was present. The dissection of wound revealed eight pieces of molten pellets embeded into the muscles and bone pieces ;
4. An elongated lacerated wound 2 x 1/2 cm x 2 cm on posterior aspect of left thigh at its lower one third. This wound was caused as a result of re-entry of pellet pieces through the wound of exit on right thigh;
5. two irregular lacerated wounds each 2 x 1 x 1/2 cm on posterior aspect of left thigh. Those wounds were caused due to re-entry of pellet pieces through wound of exit on right thigh. Dissection of wounds revealed a piece of molten pellet embedded into muscles. That piece was round cap shapped. Charring of muscles was also present."
6. In the opinion of the doctor as per post mortem report Ex.P.19, the cause of death of Bhagga was extensive haemorrhage and shock due to gun shot injuries on right thigh and left thigh resulting into excessive compound fracture of right femur and extensive injury on vessels causing massive haemorrhage.
7. PW 1 Bhoma Ram also received two tender bruises with swelling on his right elbow and right knee joint, which were simple and caused by some blunt object as per M.L.R. Ex. P. 18.
8. The Investigating Officer inspected the site of the first incident i.e. in the room of the ''Mand'' and that of second incident in the field. He prepared site plan Ex. P.32 and memo thereof Ex. P.5. From the said room, he seized and sealed the blood stained ''Rali'' (Darry) and blood stained cement pieces of the floor vide memo Ex. P.8, while from the field, he seized a pair of shoes of deceased Bhagga Ram, blood stained soil, controlled soil as also two empty cartridges, hockey and magnet vide seizure memo Ex.P.6. He also seized and sealed the blood stained ''baniyan'' and ''dhoti'' of the deceased vide seizure memo Ex. P.9. Accused Samia was arrested on 7-8-83, but nothing was recovered at his instance.
9. Accused Magna was arrested on 18-8-83. It is alleged that on 19-8-83, he volunteered information under Section. 27, Evidence Act Ex. P.33 and in pursuance thereof got recovered one German Mouzer rifle underneath the roots of a bush situated in his field near his residential house in village Dhanka vide receovery memo Ex.P. 11. It is further alleged that the said rifle belonged to appellant Savia, who is the maternal uncle of accused Magna.
10. Accused Teja was arrested on 3-10-93. He volunteered information Ex.P.27 dt. 5-10-83 and in pursuance thereof, got recovered blood stained dagger (Article 12) along with its cover vide seizure memo Ex. P.3, which was seized and sealed in the presence of motbirs.
11. Eight sealed packets containing blood stained ''bandi'', ''dhoti'', ''Rali'', blood stained soil and controlled sample, dagger, recovered gun and empty cartridges were sent to the State Forensic Science Laboratory, Jaipur. The Ballistic Expert after analysis detected combustion products of power charge on the barrel residue and after stereo and comparison microscopic examination vide his report Ex.P.34 opined that the said 7mm rifle was a serviceable firarm and had been fired some time before it was received in the laboratory. He further opined that those two 7mm cartridge cases had been fired from the said 7mm rifle. After serological examination, the Dierector, F.S.L., vide his report Ex.P.35 dated 31-1-84 reported that the ''bandi'', ''dhoti'' and ''Rali'' of injured Mangilal, blood smeared cement taken from the room and the blood stained dagger were stained with human blood having ''A'' group blood.
12. During investigation, it transpired that initially, the betrothal ceremony of PW 7 Smt. Amia had taken place with accused Magna & that Amia''s elder sister was also married to the elder brother of accused Magna. However, Amia''s father did not approve that proposal and declined to marry Amia with Magna. It is alleged that on 10-9-81, accused Magna and his maternal uncles accused Savia and Teja along with others had kidnapped and abducted Amia and a criminial case was registered and after investigation, a chargesheet was filed against them. The learned Sessions Judge, Jalore after trial by his judgment found them guilty. In that case, PW4 Lachhi Ram had sided with Amia''s father and thereafter, PW 7 Amia was married with PW 5 Mangilal.
13. Since accused Savia was absconding and could not be apprehended, initially a chargesheet was filed against accused Samia, Magna and Teja only and trial began against them. However accused Savia was arrested on 9-4-84. In pursuance to his information Ex. P. 21, two live cartridges and one empty cartridge were recovered. It appears that the said recovered empty cartridge was not sent to Ballistic Expert. A supplementary chargesheet was filed against him in the Court of the C.J.M., Jalore, who committed the case to the learned Sessions Judge, Jalore, who commenced a joint trial against them.
14. Accused persons pleaded not guilty and claimed trial. The prosecution examined as many as nineteen witnesses. The accused persons in their plea recorded u/s 313, Cr. P. C. denied all the circumstances appearing against them in the prosecution evidence. Accused Samia asserted that since he had appeared as a defence witness for accused Savia in a case u/s 366, I.P.C., he has been falsely implicated and that at the time and day of the alleged incident, he had gone to village Virana due to the death of his aunt-in-law. Accused Savia maintained that on the date and at the time of the allged incident, he had a fracture in his hand for which he had taken treatment at Jaipur from Dr. Anup Chowdhary. Accused Magna and Teja pleaded that the alleged eye-witnesses were relatives inter se, who have falsely implicated him. The accused persons also examined two witnesses in their defence. After trial, the learned Sessions Judge held that as regards accused Samia, PW 5 Mangilal and Smt. Amia did not depose anything against him; that he had no motive or animosity against Mangilal or deceased Bhagga and that he hailed from village Umedabad (Gole) and was arrested on 7-8-83 immediately after the incident but no recovery was made at his instance. Moreover in the F.I.R. also, it was not mentioned that he had inflicted a lathi blow to Bhoma. Even in the police statements, no overt act was attributed to him. He even did not abscond, whereas the other accused persons had fled away. Therefore, the learned Sessions Judge acquitted him by giving benefit of reasonable doubt. The learned Sessions Judge further held that accused Magna, Saviaand Teja, wanted to take revenge from Mangilal with whom Amia was married; that they had a common intention to commit the murder of Mangilal and that in pursuance thereof, accused Teja and Magna had entered into the room armed with dagger and hockey respectively, while accused Savia remained outside armed with a rifle. He further held that Magna caught hold of Mangilal and pressed him, while accused Magna inflicted dagger blows on his vital parts causing multiple grievous injuries, which were dangerous and likely to cause death. The learned Sessions Judge also held that abovementioned accused persons had no common intention for committing the murder of Bhagga Ram and, as such, they were not liable for the act of accused Savia, who had fired from his rifle causing fatal injuries to Bhagga resulting in his death on the spot. Therefore, he acquitted accused Teja and Magna for the offence u/s 302 read with 34, I.P.C., but conyicted the accused persons in the matter described in para No. 1 of this judgment. Hence, these appeals.
15. We have heard Mr. Doongar Singh, learned counsel appearing for the accused persons, Mr. D. R. Bohra, learned Public Prosecutor and Mr. T. S. Champawat, learned counsel for the complainant and perused the record of the trial Court in extenso.
16. Mr. Doongar Singh has vigorously contended that in this case, the allged incident took place on a dark and cloudy night when it was drizzling and hence it was not possible for PW 5 Mangilal and Smt. Amia to have identified any of the assailants in the room. In the field also, it was impossible to make out the identity of the real assailants. According to him, PW 4 Lachhi Ram and his brother Bhoma and Lehra Ram and his brother-in-law Mangilal and his wife Smt. Amia are highly interested witnesses, who had animosity against the accused persons and, as such, the learned Sessions Judge has committed an illegality in relying on their testimony. He had submitted that the recovery of the gun does not connect accused Savia with the crime because the same was not recovered either on his information or at his instance. According to him, the learned trial Judge has seriously erred in rejecting the defence evidence of the alibi of accused Savia, who on the date of the incident had a fractured hand with a plaster thereon and was not in a position to fire the gun. In the alternative, he has submitted that even if the prosecution evidence is believed and taken to be correct on its face value still then the offence made out against him cannot travel beyond the offence u/s 304, Part II I.P.C., because the gun shot injuries were on the non-vital parts i.e. on the thigh of the deceased and that by no stretch of imagination, it can be inferred that he had an intention, to kill the deceased. He had, therefore, prayed that the appeal, filed by accused persons be accepted and their conviction and sentence be set aside.
17. On the other hand, the learned P. P. and the learned counsel for the complainant have strenuously arguedthat in this case, the F.L.R. was lodged promptly, wherein names of accused Savia and Samia were specifically mentioned as accused persons. PW 4 Lachhi Ram, PW 1 Bhoma Ram and PW 3 Lehra Ram have specifically stated that they had seen four accused persons; that accused Savia was armed with a gun, Teja had a dagger, Magna was armed with a hockey and accused Samia had a lathi; that when these accused persons were chased by Lachhi Ram and other witnesses, accused Savia fired a gun shot on Bhagga Ram, which did not hit him; that thereafter he again fired twice towards Bhagga Ram causing injuries on his thighs, which proved fatal and resulted in his instantaneous death on the spot. They have submitted that in the F.I.R., it was clearly mentioned that the witnesses had seen and identified the assailants in the light of the electric bulb installed on the temple. Moreover, a torch fitted on the barrel of the gun was also lit. Hence, the prosecution witnesses could very well identify the assailants. They have asserted that PW Bhoma Ram has stated that accused Samia had inflicted lathi blow, when he tried to catch hold of him; that as per testimony of PW 12 Dr. Kotwani, Bhoma Ram had also received two simple injuries detailed in M.L.R. Ex. P. 18 and that in such circumstances, the presence of accused Samia was well established and, therefore, the learned Sessions Judge has committed grave error in acquitting accused-respondent Samia. They have argued that simply because the eyewitnesses to the incidents were relations inter se, their sworn testimony cannot be discarded. They have maintained that since all the accused persons had come together armed with weapons and left together from the field, it stands firmly proved beyond reasonable doubt that they had a common intention to commit the murder of Bhagga Ram. Hence, the learned trial Judge has also erred in acquitting accused Teja and Magna of the offences under Sections 302 read with 34, I.P.C. As regards the finding or conviction recorded by the lower Court, they have reiterated the reasonings given in the impugned judgment.
18. We have given our most anxious and careful consideration to the rival contentions and carefully read the statements of all the witnesses recorded by the learned trial Judge. In this case, the written report Ex. P. 4 was submitted by PW 4 Lacchi Ram on 6-8-83 at 8.15 a.m. to PW 16 Jalal Khan ASI in village Gole itself, when the latter had come there on a vague information given by Rawat Bhati, Sarpanch, on phone. That telephonic information was also reduced in writing and recorded in the daily diary, which is marked as Ex. P. 36A. A perusal thereof reveals that it was intimated on phone to the police that at the ''Bera'' of Lacchi Ram, an incident had taken place wherein many persons had received injuries. Evidently, this information was quite vague and incomplete and no cognizable offence was made out therefrom. Therefore, Ex. P. 36. A cannot be treated as F.I.R. in this case, Jalal Khan rushed to the spot in a jeep and reached there around 8.15 a.m., where Lachhi Ram submitted written report Ex. P. 4 to him and on that, a case was registered. Thus, FIR in this case was promptly lodged. It is true that in the F.I.R., names of only accused Savia and Samia were mentioned but it was specifically mentioned that there were two more persons; that one of them had a dagger and the other was armed with a hockey and that the informant could identify them. It was also mentioned therein that the witnesses had seen the incident in the light of the electric lamp installed on Mahadevji temple and that there was also a torch fitted on the barrel of rifle of Savia. PW. 1 Bhoma Ram has deposed that at the time of the alleged incident, it was drizzling; that at that moment of time, there was lightening in the sky and in that light. he had seen accused Savia firing from his gun towards Bhagga. PW 5 Mangilal and Amia have consistently deposed that the electric lamp on the temple was burning and that its light was trickling down in their room through the ''Jali'' of the window and that in that light, they had identified the assailants. Therefore, it cannot be held that the identity of the assailants could not be established.
19. It is an admitted position that PW 7 Smt. Amia was previously betrothed with accused Magna but later on, Amia''s father did not approve that proposal and refused to many her with Magna. It is also not in dispute that FIR No. 83/81 Ex. P. 25 was registered at P. S. Jalore by Amia''s father Johita, wherein it was alleged that on 10-9-81, accused Savia, Teja and Magna and three others had forcibly kidnapped and abducted her daughter and taken her away in a jeep and that after investigation, a challan was filed against them and after trial, the learned Sessions Judge in Sessions Case No. 44/81 had found those accused persons guilty of the offences under Sections 363, 366, I.P.C. It is alleged that an appeal against that judgment is pending in this Court. It is also not in dispute that thereafter, Amia was married to PW 5 Mangilal, who is the brother-in-law (Loser) of Lachhi Ram. Thus, it is abundantly apparent that accused Savia, Teja and Magna bore animosity with Mangilal and Lacchi Ram and that they wanted to take revenge from Mangilal and to kill him so that after Mangilal''s death, Amia could be married to Magna. It has also been well established from the prosecution evidence that PW 5 Mangilal along with his wife Amia was residing in the ''Mand'' situated in the field of Lachhi Ram; that Lachhi Ram''s brothers Bhoma Rant, Lehra Ram and deceased Bhagga were also residing, in ''heir respective separate tenement in the said field (Jay). The alleged incidents took place successively. The first incident took place inside the room of the ''Mand'', where Mangilal and his wife Amia were sleeping. There presence inside the room was natural. PW 5 Mangilal sustained injuries. The second incident took place in the field of Lachhi Ram, where he along with his brothers PWs. Bhoma Ram and Lehra Ram chased the assailants of Mangilal. The presence of aforementioned eye-witnesses at the time of incident is also very natural and the same stands proved by the prosecution evidence. All these eyewitnesses have specifically stated that at the time of the incident, an electric lamp was burning on the temple of Mahadevji and that in that light, they had seen and identified the accused persons.
20. Injured Mangilal PW 5 and Amia PW 7, who were sleeping on separate cots inside the room of the ''Mand'', have deposed that there was a ''Jalidar'' window in their room towards the temple of Mahadevji and that through which the light of the electric bulb of the temple was trickling inside the room and that in that light, they had seen accused Magna Ram, who had caught hold of Mangilal and was presssing him and that accused Teja had inflicted successive dagger blows on Mangilal''s chest, face and other vital parts of the body. The presence of Amia inside the room is very natural. She has stated that on the screams raised by her husband Mangilal, she was awaken; that she had seen accused Teja inflicting dagger blows on Mangilal, who was bleeding profusely and that thereafter she also raised alarm. She further deposed that on the alarm raised by them, Lehra Ram, Bhoma Ram, Bhagga Ram and Lachhi Ram came near their ''Mand'' and that at that time, she shouted,"... ". It is needless to mention here that accused Magna and Teja were her enemies. She has stated that inside the room, she had seen only accused Magna and Teja. and that she had also heard the vioce of one more, person outside the ''Mand'' saying that "people are coming; run away'' and that thereupon, accused Magna and Teja fled away from the room. She has stated that at that time, Lachhi Ram and his brothers had come near the ''Mand'' and since the accused persons were running away, Lachhi Ram and his brothers went after the assailants in hot pursuit. PW 5 Mangilal stated that he had also heard the voice of one person from outside to the effect that "people are coming; run away" and that thereupon accused Magna and Teja fled away. He stated that thereafter Lachhi Ram and his brother came to him and that due to injuries, he became unconscious and regained consciousness only in the morning in the hospital. The learned trial Judge has given cogent reasons for relying upon the testimony of Mangilal and Smt. Amia. To our mind, these two witnesses have valiantly withstood the test of cross-examination and are of sterling worth. Since the accused persons had run away and Lachhi Ram and his brothers pursued them hotly, practically there was no time for Smt. Amia and Mangilal to have specifically named accused Magna and Teja at that time. It may be mentioned here that Smt. Amia in her police statement did disclose the name of Magna and Teja on the same day. Hence, it cannot be held that the names of Magna and Teja were introduced later on. These witnesses did not name accused Samia. On the other hand, from the testimony of PW 5 Lachhi Ram, Bhoma Ram and Lehra Ram, it stands well proved that they had seen accused Savia armed with a gun outside the ''Mand''. No overt act of Samia has been attributed by any witness during trial. Accused Samia belongs to village Umedabad (Gole). He had no enmity with Lachhi Ram or Mangilal. Immediately after the occurrence, he was arrested on 7-8-93 but no recovery was made at his instance. There was no mention in the F.I.R. Ex. P. 4 that he had inflicted any lathi blows to Bhoma. PW 12 Dr. Kotwani has stated that only two simple injuries were received by Bhoma Ram mentioned in M.L.R. Ex. P. 18, namely tender braises with swelling on right elbow and forearm and right knee joint. He has deposed that those injuries could have been caused by a fall. Accused Samia also did not abscond after the incident. Hence keeping in view all these peculiar facts and circumstances, the learned trial Judge has rightly given benefit of doubt to accused Samia. In our opinion, he has not committed any illegality of fact or law in giving him benefit of doubt and acquitting him of the offences under Sections 307/34, 302/4 and 448, I.P.C.
21. From the prosecution evidence, it has been well established and proved that accused Savia, Magna and Teja had a grouse with PW 5 Mangilal, who had married Amia and that they wanted to take revenge and kill him and that is why, they went to the ''Mand'' and at least accused Teja and Magna armed with weapons entered in side the room of Mangilal where accused Teja inflicted multiple dagger injuries on vital parts of Mangilal. As per testimony of PW 12 Dr. Kotwani, injuries Nos. 4, 6 and 7 M.L.R. Ex. 17, which were found on the vital parts of Mangilal were grievous in nature and that those were dangerous and likely to cause his death. It also stands firmly proved from the testimony of PW 4, Lachhi Ram, Lehra Ram and Bhoma Ram that accused Savia was standing outside the ''Mand'' armed with a loaded rifle to warn co-accused persons and guard the situation and that he had come there together with Magna and Teja and went away together. These facts unmistakably prove that he had a common intention with accused Teja and Magna to commit the murder of Mangilal and that in-further-ance of the said common intention, he kept standing outside the ''Mand'' armed with a rifle, while accused Magna caught hold of Mangilal, who was sleeping, and pressed him and accused Teja inflicted successive dagger blows causing as many as eight grievous and simple injuries to Mangilal, which were dangerous to life. In our considered opinion, the learned Sessions Judge had correctly discussed, analysed and evaluated the prosecution evidence on this count and has committed no illegality either of fact or law convicting accused Teja for the offence u/s 307, I.P.C. and accused Magna and Savia for the offence u/s 307 read with 34, I.P.C., as also for the offence u/s 448, I.P.C.
22. Regarding the second incident, which took place in the field of PW 4 Lachhi Ram, there is not a fringe of evidence from which it can be inferred that accused Teja and Magna had a common intention with accused Savia to commit the murder of Bhagga Ram. Lachhi Ram, Bhoma Ram and Lehra Ram had come out from their respective tenements after hearing the alarm raised by Mangilal and Smt. Amia. They had seen four accused persons running towards the southern side of their field. They hotly pursued them. When they reached in the field of Lachhi Ram where ''Rachka grass'' was standing, accused Savia, who was at that time in Lachhi Ram''s field, where ''bajra'' crop was standing, fired from his rifle, which did not hit anybody. He again fired from his rifle causing injuries on the right thigh of Bhagga Ram, who fell down and bleeded profusely. PW 1 Bhoma, PW 3 Lehra Ram and PW 4 Lachhi Ram have consistently deposed that accused Savia had fired thrice from his gun and that two shots hit Bhagga, which speaks volumes about his intention to commit his murder. They have also deposed that they had seen accused Savia in the light of the bulb, which was lit on the top dome of the temple.
23. PW 12 Dr. Kotwani has proved the postmortem examination reporte Ex. P. 19 of Bhagga Ram and stated in details that he found two entry wounds of the bullet; that exit wounds were connected with each other causing extensive damage to the large vessels, compound fracture of right femur and that muscles were charred.
24. These eye-witnesses have also proved the details of the site plan. Those details of the place of second incident in the field have also been well proved by PW 16 Jalal Khan, A.S.I. They have deposed that two empty cartridges were lying at a distance of about 25 ft. from the dead body of Bhagga Ram. We do not find any inconsistency or variance on the ocular testimony and the medical evidence. The prosecution witnesses had seen accused Savia in the light of the electric bulb of the temple as also in the light, which was emitted from the magnetic torch fitted on the barrel of the gun. Boma Ram has further stated that he had seen accused Savia firing the gun towards him in the light of the lightening in the sky. Therefore, simply because PWs. Bhoma Ram, Lachhi Ram and Lehra Ram are brothers inter se, they cannot be held to be interested witnesses. They have been cross-examined at length and we do not find any material contradiction or inconsistency in their statements. In our considered opinion, the learned Sessions Judge has given valid reasons to believe their testimony with which we concur.
25. Mr. Doongar Singh has relied on the case of
26. Mr. Doongar Singh has next cited the case of
27. Mr. Doongar Singh has also relied on the case of
28. Mr. Doongar Singh has placed reliance on the case of Chandrabhan v. State of Rajasthan RLW 1978 Raj 405 : (1978 Cri LJ 285), wherein there was delay in sending FIR to the Magistrate. The incident took place on 25-10-74, while the F.I.R. reached the Magistrate on 28-10-74. Delay of three days was not explained. It was held that that extraordinary delay provided legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. The entire case hinged on the sole testimony of a witness. The incident took place at about 1 p.m., while the statement of that witness was recorded by the police at 6.45 p.m. During that period, the witness had met a number of persons but did not disclose the names of the assailants. The explanation by the witness that he was very much agitated about himself and his brother was found to be far satisfactory and it was held that only inference that can be drawn, was that he did not know who were the assailants. However, in the instant case, the F.I.R. was lodged at 8.15 a.m. on 6-8-83 i.e. immediately after the occurrence, which reached the Magistrate on the same day at 4.45 p.m. at Jalore. Thus, there was no delay. There is neither any evidence nor any suggestion on behalf of the accused-appellants was put to Smt. Amia and Mangilal that they had met number of persons and did not disclose the names of the assailants Teja and Magna. On the other hand, Smt. Amia was immediately examined by Jalal Khan after registration of the case on the same day. She had specifically stated the names of Magna and Teja as assailants of Mangilal and attributed their respective overt acts. Mangilal became unconscious and was immediately taken to Primary Health Centre, Sayla. PW 12 Dr. Kotwani recorded his dying declaration on 6-8-83 at 9 a.m., which has been marked as Ex. D. 5 and relied upon by the accused persons. In that statement Ex. D. 5, Mangilal had clearly stated that accused Teja and Magna were the assailants, who had come at about 3 a.m. in the night in his house and inflicted dagger blows on his chest, head, ear and back and that he was feeling difficulty even in breathing and speaking and that his head was reeling down. Therefore, it cannot be said that Smt. Amia and Mangilal had not disclosed the names of Teja and Magna immediately after the occurrence. In such circumstances, the facts of Chandra Bhan''s case are clearly distinguishable.
29. Lastly, Mr. Doongar Singh has placed reliance on the case of
30. The licenced rifle Article 9 of accused Savia was recovered at the instance of accused Magna, who is the nephew of accused Savia, on 19-8-83. It was duly sealed by the Investigating Officer, Similarly two empty cartridges, which were recovered from the field of Lachhi Ram immediately after the incident, were also seized and sealed. All the sealed packets were kept in safe custody of PW 17 Noor Mohd. Khan, Head (Constable, In charge, Mal Khana, Police Station, Jalore till 10-10-83. Thereafter, PW 18 Bhanwar Dan, Constable, took sealed packets to the F.S.L. vide Receipt Ex. P. 36 and all those packets were received in the sealed condition. The Ballistic Expert''s report is Ex. P. 34. He has clearly opined that the said rifle was in a serviceable condition and had been fired some time before it was received in the laboratory and that two 7mm cartridge cases had been fired from the said 7mm rifle. The accused appellants did not challenge the said Support nor did they make a request to the trial Juge to cross-examine the ballistic expert. PWs Bhoma Ram, Lachhi Ram and Lahra Ram have consistently deposed that they had seen the acccused Savia firing from the rifle and, therefore, the recovery though at the instance of accused Magna as also the report of the ballistic expert Ex. P. 34 corroborate the ocular evidence. We, therefore, do not find any force in the argument of Mr. Doongar Singh that the recovery of rifle Article 9 does not connect the accused Savia with the crime. It may be mentioned here that accused Savia got the torch Article 10, two live cartridges and one empty cartridge recovered at his instance vide recovery memo Ex. P. 14 in pursuance to his information Ex. P. 20. It may also be mentioned here that a piece of magnet of the said torch w,as recovered at the place of the second incident in the field of Lachhi Ram. Accused Savia had absconded immediately after the incident, though against him, many criminal cases were pending, wherein accused Magna and Teja were also co-accused. Proceedings under Sections 82 and 83, Cr. P. C, were initiated against accused Savia, who was arrested as late as on 9-4-84 and by that time, in the trial against other accused persons, the statements of PWs Lachhi Ram, Sortmal, Bhoma Ram, Smt. Amia and injured Mangilal had already been recorded. After a supplementary chargesheet was filed against the accused Savia, de novotrial commenced against all the accused persons. In our considered opinion, the prosecution by adducing clear, cogent and convicting evidence has established beyond reasonable doubt that it was accused Savia alone, who had fired three shots from his rifle out of which two shots caused injuries to Bhoma on his right and left thighs causing extenstive damage to his large vessels, compound fracture of right femur and massive haemorrhage, which caused shock culminating in his death on the spot. The fact that accused Savia had fired successive shots from his gun towards Bhagga and injured him grievously itself manifests his intention. It also establishes beyond reasonable doubt that he had intentionally fired towards Bhagga and caused such injuries, which were sufficient in the ordinary course of nature to cause his death. Therefore, the learned trial Judge had not committed any illegality either of fact or of law in convicting accused Savia for the offence u/s 302, I.P.C. Hence in our considered opinion, the act committed by accused Savia cannot be held to be u/s 304, Part II, I.P.C.
31. As mentioned earlier, after inflicting injuries to Mangilal, the accused persons were running away to make good their escape. Accused Magha and Teja, thus, had no common intention to commit the murder of Bhagga. Hence, they cannot be made liable for the act of accused Savia and the learned Sessions Judge has not committed any error or illegality in acquitting them of the offences under Sections 302 read with 34, I.P.C.
32. No other point was pressed before us.
33. Hence, for the reasons mentioned above, we are of the considered opinion that the impugned judgment does not warrant any interference and that the appeal filed by the accused-appellants as well as the appeal filed by the State of Rajasthan are meritless and, as such, both appeals are hereby dismissed.
