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Judgment
M.C. Garg, J.—This appeal arises out of the judgment delivered by the learned Additional Sessions Judge in Sessions Trial No. 285/89 in Crime No. 1633/88 delivered on 22nd June, 1989 whereby, the learned Additional Sessions Judge has convicted the appellant Kishan alias Kishniya for having caused the death of Adesingh; appellant Jabariya and Gamariya for having caused the death of Jungaliya and Kustum u/s 302 of IPC and to undergo imprisonment for life besides making payment of fine of Rs. 1000/-. The trial Court has also convicted the other appellants Jabariya, Undliya, Nirbhaysingh, Gambhir and Ganpat u/s 302/149 on all the aforesaid three counts and also sentenced them to undergo imprisonment for life with fine of Rs. 1000/- each. In default of payment of fine, they have been directed to further undergo RI for one year. During the pendency of this appeal, one of the appellant namely - Gambhir has died and therefore, his name was deleted on 7.9.2005.
Learned counsel for the appellants has submitted that while there is evidence against the appellants Kishan alias Kishniya and Jabariya, there is no evidence to sustain the conviction of Undliya, Nirbhaysingh and Ganpat. He has, therefore, submitted that as far as the aforesaid three appellants are concerned, they are entitled to be acquitted of the charges framed against them. It may be observed here that all the appellants are in judicial custody.
As per the story of the prosecution, in the intervening night of the 3rd/4th March, 1985 at about 3:30 a.m., when villagers of the village Behdewa were dancing on the occasion of Holi festival, the appellants caused injuries with arrow to Adesingh, Jungaliya and Kustum, as a result of which, they died. A report was lodged at P.S. Sorwa. After completion of the investigation, the police filed challan against the appellants and other 7 co-accused persons. Out of these, 2 were minors, one is absconding while two of them died. As far as, we are concerned, we are only concerned with the appeal filed by the appellants.
It has been submitted that insofar as appellant No. 2 Jabariya and appellant No. 5 Gambhir are concerned, they have received injuries but the prosecution was unable to explain their injuries. Prosecution witnesses PW-8 Pratap and PW-9 Dashriya also have not supported the prosecution version.
At this juncture, it will be relevant to take note of the FIR which has been registered at the instance of PW-2 Jassu on 4.3.1988 at about 10.00 a.m. whereas, the incident allegedly happened in the midnight of 3rd/4th of March, 1985 at about 2.30-3.30 a.m. As per the FIR, the complainant alongwith Choukidar of the village and brother of Kustum came to the police station and lodged the report, which reads as under:-
A perusal of the FIR goes to show that appellant Jabariya gave a blow with arrow to deceased Jangaliya, which hurt him at the chest while Gamariya caused injuries on his hand. The doctor, who conducted postmortem namely-MA Khan PW-13 vide his report Ex. P-35 has found only two incised wounds on the dead body of Jungaliya. He has not found any injury on the hand of deceased Jungaliya.
As far as deceased Adesingh is concerned, it was Kishniya who caused arrow injury on the chest of Adesingh. According to his postmortem report Ex. P-4, there was only one incised wound found on his person. Postmortem was conducted by PW-5 A.S. Tomar.
As per the FIR, arrow injury was caused to Kustum on his chest by Gamariya. Even though, there is allegation in the FIR that Nirbhaysingh also caused arrow injury. There is no mention of Nirbhaysingh having caused such injury in the dying declaration of Kustum vide Ex. P-36. To appreciate the aforesaid statement, it is appropriate to take note of the dying declaration made by Kustum which reads as under:-
This is to certify that Kustum s/o Ansingh Bhilala says R/o Behadawa is conscious and in sound state and fit for dying declaration.
The prosecution to prove its case, examined four eye witnesses namely - PW-2 Jassu, PW-3 Melbai, PW-4 Balki PW-7 Sabesingh and PW-11 Rustam even though, there were two other witnesses who were examined by the prosecution namely - PW-8 Pratap and PW-9 Dashariya but they both were declared hostile.
In the dying declaration of Kustum, there is also mention of name of Indersingh as eye witness but he has not been examined by the persecution.
Learned counsel for the appellants has submitted that absolutely there is no evidence about causing of injury to the deceased persons by Nirbhaysingh, Undaliya and Ganpat, in this regard it has been pointed out that PW-2 Jassu, who is also the FIR maker has also not stated that any arrow injury was caused on the chest of Kustum. PW-3 Melbai has stated that Nirbhaysingh caused arrow injury to Kustum. Referring to the statement of PW-3 Melbai who has stated, she has not so stated in police statement.
As far as appellant Undaliya is concerned, it is submitted that as per PW-2 Jassu, Undaliya caused the injury through a faliya on Adesingh but no injury has caused. As far as PW-3 Melbai and PW-4 Balki are concerned, they have not been mentioned regarding any injury having been caused on Adesingh by the aforesaid three appellants.
It has been submitted that even though, PW-2 Jassu has stated that Nirbhaysingh caused arrow blow to Kustum but this is not so stated by the deceased Kustum in his dying declaration. As far as Sabesingh and Rustam are concerned, even though, they have made allegation about Nirbhaysingh having caused arrow injury to Kustum but his name has not mentioned in the dying declaration.
Similarly, about appellant Ganpat, it is submitted that in the statement of PW-2 Jassu, it has come on record that Ganpat caused arrow injury to Kustum on his hand but no corresponding injury has been found in postmortem report. PW-3 Melbai, PW-4 Balki, PW-7 Sabesingh have also not stated anything about the role played by appellant Ganpat in this entire episode.
As regards presence of Undaliya, Nirbhaysingh and Ganpat is concerned, it has been argued that it was Holi festival and there was crowed of 500 people therefore without any sufficient cause, cannot implicate appellants Undaliya, Nirbhaysingh and Ganpat in the crime.
It has also been submitted that all the witnesses are the relatives of deceased. PW-2 Jassu is the brother of deceased Jungaliya and Kustum, PW-3 Melbai and PW-4 Balki are daughters of deceased Adesingh and PW-7 Sabesingh is the son of deceased Kustum.
Reliance has also been placed upon the only defence witnesses examined in this case namely - DW-1 Guman Singh alias Gumana, who has deposed as under:-
It is submitted that independent witnesses namely - PW-8 Pratap and PW-9 Dashariya have not supported the case of the prosecution. PW-11 Rustam is also brother of deceased Jungaliya and Kustum. With these submissions, learned counsel for the appellants has prayed for acquittal of the appellants Undaliya, Nirbhaysingh and Ganpat in this case by submitting that neither there is any direct evidence against them nor they can be fastened liability of section 302 of IPC as per principle laid down u/s 149 of IPC.
We have examined the record of this case and have perused the statement made by the eye witnesses namely -
PW-2 Jassu, PW-3 Melbai, PW-4 Balki, PW-7 Sabesingh and PW-11 Rustam. We have also perused dying declaration of deceased Kustum and statement made by Jassu PW-2 to the police u/s 161 of Cr.P.C.
Having perused the aforesaid, we find substance in the statement made on behalf of the learned counsel appearing for the appellants to the extent that there is no evidence available on record about involvement of Undaliya, Nirbhaysingh and Ganpat in this case. We find that the prosecution has not been able to prove its case beyond reasonable doubt insofar as the role of the aforesaid three appellants is concerned in having caused fatal blow to the deceased Adesingh, Jungaliya and Kustum whereas, we find that the conclusion drawn by the learned Trial Court with respect to the role of appellant No. 1 and 2 in having caused arrow blows to all the three deceased is established beyond reasonable doubt not only by the prosecution witnesses but also by the defence witnesses.
Consequently, we up-hold the trial Court judgment in respect of the conviction of appellants Kishan alias Kishniya and Jabariya for having caused the death of the deceased Jungaliya, Kustum and Adesingh and therefore, up-hold their conviction u/s 302 of IPC as well as u/s 302/34 of IPC. The sentence awarded to undergo for life and to pay fine of Rs. 1000/- each on every count is also confirmed.. However, we find no evidence to implicate appellants Undaliya, Nirbhaysingh, Ganpat for having committed offence for which they charged, accordingly, they are acquitted. They are on bail. Their bail bond stands discharged.
C.c. as per rules.