JUDGMENT 1. 1. The present appeal arises out of the judgment of the learned Sessions Judge, Bikaner dated 20.3.1991 in Sessions Case No. 28/89 whereby he convicted the three appellants under Section 302/34 I.P.C. and sentenced to life imprisonment and to pay a fine of Rs. 500/- and in default to further R.l. of one yer. 2. The prosecution was initiated on the basis of F.I.R. Ex.R 1 lodged by one Prithvi Khan at 5.30 PM. on 2.2.1989 at the Police Station, Chhattargarh. In this report, Prithvi Khan has said that on that day at about 8 A.M. he, his elder brother Yusuf and Karim Khan started in a tractor after loading Gwar bags. They proceeded in their tractor for Chhattargarh. Ahmed Khan who is a resident of Chak 4 A.R.M. had also accompanied them to Chhattargarh. After reaching Chhattargarh at about 10 A.M. they unloaded their Gwar bags at the shop of Kheraj Ram and the Gwar bags of Karim Khan wer eunloaded at the shop of Bhagwan Das. Yusuf remained at the shop of Kheraj Ram. The first informant, Karim Khan and Ahmed Khan were on the shop of Bhagwan Das. At about 5 PM. they went to the hotel of Kartar to take tea at that time when they arrived near the hotel of Kartar, Yusuf brother of the first informant was proceeding towards them. When on way Yusuf arrived near the flour mill of Peeru Khan then from the side of bus stand accused Ramjan Khan and Sultan Khan sons of Khanekhan and Kalu Khan son of Karim Khan came running. Ramjan Khan had a Barchhi, Sultan Khan had a Danda of Kassi and Kalu Khan had a Kulhari. All the three assaulted Yusuf. Ramjan gave a Barchhi blow and proclaimed that don't spare the enemy, kill him. Meanwhile, Kalu Khan gave a Kulhari blow on the head of Yusuf and Sultan Khan gave a Danda blow on the shoulder of Yusuf as a result of which Yusuf fell down and Ramjan inflicted a Barchhi blow on the jaw. Kalu Khan inflicted injury on the neck by Kulhari. The first informant stated that when he and two others, on seeing Yusuf getting hurt, rushed towards Yusuf, on seeing them running the accused fled away. Kalu Khan inflicted injury on the neck by Kulhari. The first informant stated that when he and two others, on seeing Yusuf getting hurt, rushed towards Yusuf, on seeing them running the accused fled away. On arriving at the place of incident, they saw that Yusuf had an open wound in the head, his neck also had a cut wound. The wounds were bleeding and as a result thereof Yusuf had succumbed. Regarding the motive, it has been stated in the F.I.R. that for causing the death of the brother of Ramjan they were facing a murder case. Being enraged by that incident, the accused have killed Yusuf. He had come to the police station for lodging the report taking Karim Khan and Ahmed Khan at the site. 3. The police after recording the F.I.R. investigated the matter and filed the charge-sheet against the accused persons. The charges were framed against the accused persons under Sections 120-B and 302 read with Section 34 I.P.C. 4. After trial, the learned Sessions Judge, Bikaner acquitted the accused under Section 120-B'I.P.C. However, the accused persons were convicted under Section 302 read with Section 34 I. P.C. and sentenced to life imprisonment and to pay a fine of Rs. 500/- and in default to further R.l. of one year. 5. Being aggrieved by their conviction and sentence the present appeal has been filed by the accused appellants before this Court. 6. This Court Coram Hon'ble Mr. Justice V.S. Kokie and Hon'ble Mr. Justice A.K. Singh heard the appeal and maintained the judgment of the learned Sessions Judge vide its judgment dated 12.7.1996. An Appeal by special leave was preferred before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide its judgment dated 20.10.1997 observed that the High Court while dismissing their appeal against their convictions under Section 302/34 I.P.C. has not properly discussed defence evidence even though it was imperative for proper disposal of the appeal. The judgment of the High Court was set-aside and the matter, was remitted back for re-hearing. Hence this appeal was reheard. 7. The Hon'ble Supreme Court while remanding the matter has observed that the High Court has not considered the defence witnesses produced by the accused appellants. In this back-ground the rehearing of the appeal was taken up. 8. We have examined ?he evidence of the two defence witnesses. First defence witness is D.W. 1 Ranjhekhan. Hence this appeal was reheard. 7. The Hon'ble Supreme Court while remanding the matter has observed that the High Court has not considered the defence witnesses produced by the accused appellants. In this back-ground the rehearing of the appeal was taken up. 8. We have examined ?he evidence of the two defence witnesses. First defence witness is D.W. 1 Ranjhekhan. D.W. 1 Ranjhekhan states in his statement that he was sitting on the Barbar shop, close to the flour mill of Peeru Khan, at the time of incident. From the western side Kalu Khan was coming and from the northern side Yusuf was coming, running. When Kalu Khan reached near the flour mill of Peeru Khan, Yusuf took out a pistol and fired at Kalu Khan. Then Kalu Khan took up the axe and hit Yusuf twice thrice. Yusuf fell down. Thereafter Kalu Khan ran away towards western direction. About half of quarter to one hour the police had arrived and he informed the police regarding this incident. The pistol was lying there which the Thanedar took up and gave it to the Constable. This witness in his cross-examination has stated that he had not informed the members of the family of Yusuf regarding this incident. He is on visiting terms with the family members of Yusuf. After 10-15 days of the incident he had gone to the house of Yusuf for condolences. According to this witness the length of the pistol fired by the Yusuf was not more than 12". He cannot say whether the Pistol was country made or a foreign made. He does not know whether the butt of the pistol was of wood or not. He does not even remember whether the barrel of the pistol was small or longer. The pistol was lying half foot away from the dead body of Yusuf. He does not remember whether the pistol went out of the hand of Yusuf before getting hurt or thereafter. Yusuf made only one fire from the western direction. The pistol shot went at a distance of two pawandas from Kalu Khan. He had informed the Thanedar about the pistol but he had not informed the Thanedar as to whether the bullet has fallen. He even does not know where the pellet had fallen. He has further stated that he was at a distance of 60 feet from the dead boy of Yusuf. He had informed the Thanedar about the pistol but he had not informed the Thanedar as to whether the bullet has fallen. He even does not know where the pellet had fallen. He has further stated that he was at a distance of 60 feet from the dead boy of Yusuf. Therefore, he could not, see to where 'the bullet has fallen. In the cross-examination he has admitted that he is not aware whether it was bullet or pellet which came out of the pistol. He has also admitted that he has not given in writing to the police that Yusuf made a fire. The statement of D.W. 1 was recorded on 9.1.1991. Before this day this witness has not given in writing any statement to any authority. An application was filed on behalf of the defence which has been produced as Ex.D. 3. This application was filed on 21.2.1989 i.e., 19 days after the incident. Before this the defence had not made any venture to file any report or application stating that Yusuf had used a gun.and in retaliation Kalu Khan made retaliated attack on Yusuf. 9. Another defence witness is D.W. 2 Nijamuddin. He states that on the fateful day he had gone to Mandi with his truck. His truck was standing at the godown of Bhaya. He had to load it for taking goods to Nokha. The loading completed at about two thirty or quarter to three when he told the cleaner to put the Tripal on the truck and he went to the shop of Bhaya for getting the bill and bilty. While he was sitting at the shop in the expectancy of j getting the bill and bilty at that time Ramjan accused came there and asked the Munim to give a paper and asked this witness to write a report. At that time on asking he had been informed that Yusuf is drunk and he is bent upon to create trouble, therefore, he wanted to make a report to the police. He wrote the report as per the information given to him and Ramjan Khan carried the report and he left the Mandi at about 3.15 or 3.30 RM. He says that he learnt about the murder of Yusuf when he returned back after 15-20 days. He wrote the report as per the information given to him and Ramjan Khan carried the report and he left the Mandi at about 3.15 or 3.30 RM. He says that he learnt about the murder of Yusuf when he returned back after 15-20 days. He admits that he had never given any report to the police that Ramjan got a report written from him. 10. The defence has not been able to procure such a written report having been filed by Ramjan before the Police. The Investigating Officer has denied a suggestion given by the defence in this regard. 11. The prosecution has examined P.W. 1 Prithvi Khan the first informant who in his court statement has stated that he, Karim and Yusuf and Ahmed Khan had reached Chhattargarh at 10 A.M. They unloaded their goods at the shop of Kheraj and unloaded Gwar of Karim at the shop of Bhagwan Das. While they were at the shop of Bhagwan Das the accused came there and started quarrelling with us. At that time Manak Chand intervened and said that they should not make noise at his shop and the accused went towards the bus stand. About one hour later Yusuf went to the shop of Kheraj to get the account settled. This witness along with Karim and Ahmed at about 5 R.M. went to take tea at the hotel of Kartar. When they arrived at the shop of Kartar then Yusuf was coming from the shop of Kheraj. When Yusuf arrived near the flour mill of Peeru Khan the three accused came from the side of bus stand. Ramjan had a Barchhi, Kalu Khan had a Kulhari and Sultan Khan had a Danda of Kassi. Having gone close to Yusuf, Ramjan gave a Barchhi blow on the head of Yusuf, Kalu Khan gave a Kulhari blow on the head of Yusuf and Sultan gave a Danda blow on the shoulder of Yusuf. Yusuf fell down. Ramjan exhorted that the enemy should be killed and he should not be spared. While Yusuf was in the falling condition Ramjan gave a Barchhi blow and Kalu Khan gave a Kulhari blow. They kept on shouting and did not go close to the accused. When Ramjan further gave a Barchhi blow on the jaw of the deceased and Kalu gave a Kulhari blow on the neck. After this the accused fled away. While Yusuf was in the falling condition Ramjan gave a Barchhi blow and Kalu Khan gave a Kulhari blow. They kept on shouting and did not go close to the accused. When Ramjan further gave a Barchhi blow on the jaw of the deceased and Kalu gave a Kulhari blow on the neck. After this the accused fled away. They saw the deceased. He had already expired. Then this witness went to lodge report leaving Ahmed and Karim at the site. Yusuf had come on bail granted by the High Court just three months before the incident. In cross examination the defence had put to this witness that he has not stated about two Danda blows being caused by Sultan in Ex.P. 1 and statement Ex.D. 1. It has also been put in cross-examination to this witness that Yusuf had fired at Kalu Khan and Kalu Khan in his defence caused the injuries. This suggestion has been denied by the witness. 12. Another witness P.W. 2 Ahmed has given the statement in the same side as P.W. 1. He was also put a suggestion by the defence that when Yusuf fired then Kalu hit in retaliation. 13. P.W. 3 Mohan has turned hostile. 14. P.W. 4 Dhannadan is also a hostile witness, 15. P.W. 5 Manak Lal is also a hostile witness. 16. P.W. 6 Karim Khan has given the same statement as has been given by RW. 1 and P.W. 2 and in his cross-examination the defence of firing by Yusuf and in retaliation accused Kalu Khan caused the injuries has been put. 17. P.W. 7 Gulam Kadar is a witness who deposes that he arrived at the scene of occurrence soon after the incident. When he reached he saw that there was a dead body lying on the ground. He stated that Ahmed, Karim and various persons of the market were present there and certain memos were prepared by the police and he has been made witness of those memos. 18. P.W. 8 Dr. Ram Chandra Godara is the doctor who conducted the post mortem of the body of the deceased. 19. P.W. 9 Kheta Ram is a Motbir witness of various stages of the investigation. 20. P.W. 10 Gulam Hussain is also a Motbir witness of various stages of the investigation. 21. 18. P.W. 8 Dr. Ram Chandra Godara is the doctor who conducted the post mortem of the body of the deceased. 19. P.W. 9 Kheta Ram is a Motbir witness of various stages of the investigation. 20. P.W. 10 Gulam Hussain is also a Motbir witness of various stages of the investigation. 21. P.W. 11 Yaru Khan is the witness of recovery of Barchhi at the instance of accused appellant Ramjan. 22. P.W. 12 Bhalla Ram is a hostile witness. 23. P.W. 13 Manphool Ram is Malkhana Incharge. 24. P.W. 14 Hanuman Prasad is the carrier of the articles to the F.S.L., Jaipur. 25. P.W. 15 Khiraj Ram is a businessman at whose shop the Gwar bags were put but he has turned hostile. 26. P.W. 16 Murlidhar is the Investigating Officer. 27. The most important aspect of the case is the testimony of the three eye-witnesses. The merit of the testimony of these eye-witness is to be adjudged in relation to the defence witnesses because the defence witness D.W. 1 Ranjhekhan also alleges to be an eye-witness of the incident and comes with a different version than the one given by the eye-witnesses produced by the prosecution. D.W. 1 Ranjhekhan has claimed in his statement that he was having visiting terms with the family of Yusuf and had visited the house of Yusuf for condolences after 10-15 days of the incident. He also admitted that soon after the incident he has not informed about the incident to the family members of Yusuf. His evidence is to the effect that when Yusuf fired gun at Kalu Khan while he was coming running, Kalu Khan hit in retaliation by Kulhari. According to him, he does not know what kind of the gun it was. Whether bullet was fired from this fire arm, or pellet was fired from it. The investigating agency has not collected any evidence of gun being fired by the deceased Yusuf. Except the testimony of this witness there is nothing on the record to suggest that any gun shot was fired by Yusuf. The suggestion given to the prosecution witnesses has been denied. There is no evidence of any witness to suggest that any time arm was used by any one at the time of occurrence. Except the testimony of this witness there is nothing on the record to suggest that any gun shot was fired by Yusuf. The suggestion given to the prosecution witnesses has been denied. There is no evidence of any witness to suggest that any time arm was used by any one at the time of occurrence. Even D.W. 1 Ranjhekhan who initiates the story of firing has not stated about it to any one else except the S.H.O. According to him, he has told the story of firing by Yusuf to the S.H.O. when he arrived at the place of occurrence but he has not informed to any other person or did anything to register the correct information to his knowledge. 28. Not only that there is no other witness to this effect but this witness has also not informed to any one about the different mode of occurrence. For the first time on 21.2.1989 an application was made to the Director General of Police i.e., after 19 days of the incident. In this back-ground the defence witness and the defence document is required to be examined cautiously. The way the case has been built up by the defence then in all probability, some evidence was required to establish that a shot was fired by Yusuf at Kalu Khan. According to D.W. 1 Ranjhe Khan, Yusuf Khan was coming running. There is nothing on record to suggest that at : about the time of incident there was anything which would make Yusuf running when Kalu Khan arrived in front of the flour mill. But it has been deposed by this witness that Yusuf came running. At the shop of Peeru Khan, Yusuf took out the rivolver and made a fire towards Kalu Khan, and the fire missed him. No remnants of fire has been noticed by any one. The t only purported witness himself is not sure as to where the bullet or pellets which omitted out of the rivolver of Yusuf fell. Therefore, when this story of the defence is not supported by any of the circumstances available then no credence can be given to it. It is also material that the parties have met earlier then the incident. They had a quarel. At that time Yusuf was not 4 armed with a fire arm. He does not belong to Chhattargarh. Therefore, when this story of the defence is not supported by any of the circumstances available then no credence can be given to it. It is also material that the parties have met earlier then the incident. They had a quarel. At that time Yusuf was not 4 armed with a fire arm. He does not belong to Chhattargarh. How could he acquire a fire arm has not been explained by the defence. The other defence witness spoken about writing of an application. The application is not available on record.. There is nothing to corroborate it. The defence being not credible we have to examine how the prosecution case. 29. Deceased Yusuf had come on bail three months before the incident and he was already facing a criminal trial in which the accused persons were involved. There had already been an alteration between the parties on the day of occurrence at around 2 RM. at the shop of Bhagwan Das which was intervened by Manak Chand. The accused were aggrieved persons and in all probability when, they saw the deceased who was accused in a criminal case they made the assault as narrated by the prosecution eye-witnesses. The eye-witnesses account does not appear to be improbable or being tainted with any infirmity that on that count the testimony of the eye-witnesses can be discarded. The account of the incident given by the prosecution witnesses is inconformity with the medical evidence. All the three eye-witnesses. P.W. 1 Prithvi Khan, P.W. 2 Ahmed and RW. 6 Karim Khan are reliable as they corroborate each other regarding the incident and there appears to be no reason to discard the testimony of these witnesses. According to the eye-witnesses accused Ramjan caused Barchhi blows and Kalu Khan caused Kulhari blows. Sultan Khan caused injuries by Danda. When we find that there is nothing in the testimony of the eye-witnesses which deserves their discarding then the role played by all the three accused as narrated by the witnesses is liable to be accepted. The accused Ramjan and Kalu Khan being armed with Barchhi and Kulhari and they caused such injuries which resulted into the death of the deceased, it can safety be said that they had the intention to cause the death of the deceased and they can be said to have shared this common intention. 30. The accused Ramjan and Kalu Khan being armed with Barchhi and Kulhari and they caused such injuries which resulted into the death of the deceased, it can safety be said that they had the intention to cause the death of the deceased and they can be said to have shared this common intention. 30. To infer that all the three accused persons including Sultan had formed the common intention to cause the death, the prosecution has led no evidence except that the three accused persons came and assaulted the deceased. There is nothing on the record to establish that there had been a prior meeting of the minds of the accused persons. The charge under Section 120-B I.P.C. has not been found to be proved against the accused persons and the learned Trial Court has acquitted the accused of the charge of conspiracy. There being no evidence of prior meeting of the mind of the accused, it has to be adjudged whether Sultan Khan also had shared the common intention of killing the deceased with the accused or not. 31. As regards Sultan Khan he used the Danda. There is only one simple injury by Danda a blunt weapon on the shoulder of the deceased. In the back-ground of inimical relations when it is said that Sultan Khan has caused simple injury by Danda then it cannot be said that he intended to kill the deceased. He can only be attributed to have a feeling of revenge towards the deceased and a Danda blow can at best be said to be a translation of those enraged feelings but that cannot travel to the extent of causing death and sharing a common intention to cause death. At best Sultan Khan can be held guilty under Section 323 I.P.C. for causing simple injury to the deceased. 32. In the result, the appeal of Sultan Khan is partly accepted. He is acquitted of the charge under Section 302 read with Section 34 I.P.C instead he is convicted in Section 323 I.P.C. for causing simple hurt. He has remained in Jail for considerable time, therefore, he is sentenced to the period already undergone. He is behind the bars. He should be released forthwith if not required in any other case. The appeal of the accused Ramjan and Kalu is rejected. *******