JUDGMENT 1. - This appeal is directed against the judgment dated 24th April, 1991 passed by the Additional Sessions Judge, Chittorgarh in Sessions Case No. 15/89 convicting the appellants Vijai Singh, Jugraj Singh, Ranjeet Singh, Mohan Singh and Akhtar Hussain for offence under section 302/149 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs. 500/-, in default Against the judgment dated 24.4.91 passed by the Additional Sessions Judge, Chittorgarh. of payment of fine to further undergo six months' rigorous imprisonment. The appellants have also been convicted for offence under section 148 IPC and each of them sentenced to two years' rigorous imprisonment and to pay a fine of Rs. 400/-, in default of payment of fine to further undergo three months' rigorous imprisonment. Appellants Jugraj Singh and Ranjeet Singh have also been convicted for the offence under section 3/25 of the Indian Arms Act and each of them have been sentenced to one and half years rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment to further undergo two months' rigorous imprisonment. All the substantive sentences have been ordered to run concurrently. 2. The appellants were tried for offence under sections 148, and 302/149 IPC and in alternate for offence under section 302/34 and 3/25 of the Indian Arms Act in respect of an incident alleged to have taken place on 14.12.1988 in village Kelukhedi in the field of Pratap Singh, in which Kalu Singh s/o Pratap Singh and an employee of Pratap Singh namely Kashi Ram were assaulted with swords and fire arms, as a result of which both of them died on the spot. An information of the incident was lodged by PW. 1 Pratap Singh at Police .Station, Rawatbhata on 15.12.1988 at 2 a.m. stating inter alia that his son Kalu Singh alongwith his servant Kashi Ram were sleeping in a hut (topa-a small hut prepared with Bans and covered with leaves etc.) for guarding the crop. In the adjoining hut, he alongwith his another servant P.W. 3 Kalu Balai were sleeping. At about 11.30 p.m., all of sudden he heard the sound of gun fire. In the adjoining hut, he alongwith his another servant P.W. 3 Kalu Balai were sleeping. At about 11.30 p.m., all of sudden he heard the sound of gun fire. He was awakened and found that accused Mohan Singh s/o Babu Singh, Vijai Singh s/o Kishan Singh, Jugraj s/o Bhoor Singh, Ranjeet s/o Madan Singh and Iqbal s/o Allah Noor, all the residents of Barodia armed with gun, pistol etc. assaulting his son Kaul Singh and servant Kashi Ram. Out of fear, he raised the voice and gave call to the villagers. He also rushed towards the village. In response to his call, Kishore Singh, Bapu Singh, Bhoor Singh, Chhatar Singh, his son Doongar Singh and Chhatar Singh immediately arrived on the spot. Seeing them, the accused persons flied away, jumping the `Nala'. 10-15 persons were seen jumping the `Nala' and running away, which included the two sons of Kishan Singh namely Arjun Singh and Jugraj Singh, Akhtar and son of Bhoor Singh. On seeing Kalu Singh and Kashi Ram in the flash of torch, it was found that both of them had sustained firearm injuries on the chest. There was a swrod injury on the eyes of Kashi Ram. Back side of the neck of Kalu Singh was cut and the bleeding was seen. Giving out the background he also stated that there was an old enmity between the parties. A quarrel had taken place between Ranjeet Singh and his son Hari Singh on the bus stand of village Jharjani, for that reason all the accused persons of armed with guns and other deadly weapons came to the field and killed his son Kalu Singh and servant Kashi Ram. On this information, police registered a case for offences under sections 147, 148, 149, 302 IPC and Section 3/25 of the Indian Arms Act. The police prepared the inquest and sent the dead bodies of Kalu Singh and Kashi Ram for post mortem. The recoveries of the weapons of offence were made from all the accused persons. After usual investigation, the police laid charge-sheet against the present appellants and one Iqbal s/o Allah Noor. During trial, the accused Iqbal absconded and as such his trial has been separated. The police did not file the challan against Arjun Singh and Jugraj Singh sons of Kishan Singh. 3. All the accused persons pleaded not guilty and claimed trial. After usual investigation, the police laid charge-sheet against the present appellants and one Iqbal s/o Allah Noor. During trial, the accused Iqbal absconded and as such his trial has been separated. The police did not file the challan against Arjun Singh and Jugraj Singh sons of Kishan Singh. 3. All the accused persons pleaded not guilty and claimed trial. The prosecution in support of the case examined 12 witnesses and produced certain documents. All the accused persons in their statements under section 313 C.P.C. stated that the prosecution evidence appearing against there, is false. They also stated that they have been falsely implicated. The trial Court relying on the testimony of P.W. 1 Pratap Singh, P.W. 2 Chhatar Singh and P.W. 5 Doongar Singh and the recoveries of the weapons held all the accused appellants guilty of murder of Kalu Singh and Kashi Ram. Accordingly, all of them have been convicted and sentenced as noticed above. 4. Assailing the conviction, it is contended by Mr. Varun Gupta, learned counsel for the appellants that the conviction of the appellant on the sole testimony of P.W. 1 Pratap Singh is unsustainable. It is submitted that a to close scrutiny of the statement of P.W. 1 Pratap Singh will show that he is not a witness of the incident. He has also made a sever criticism of the alleged recoveries of the weapons of the offence. It is submitted that the recoveries have been made at one point of time and from one place. On the other hand, the learned Public Prosecutor has supported the judgment of the trial court. 5. We have considered the rival contentions and scanned the prosecution evidence carefully. 6. P.W. 6 Dr. Ashok Kumar has stated that he conducted the post mortem of the dead body of Kashi Ram and found the following injuries on his person- (i) Lacerated wound 5"x 3/4 " x 2" on the right side, extended from outer border of eye brow to the base of nose, with repture of eye and cut the frontal bone sharply-sharp weapon. (ii) Incised wound 3/4 " x 1/4 "x 1/4 " on the right side of face, just below maxillary prominences. (iii) Incised wound 1 x ⅓ x 1/2 " on the outer medial surface of the left wrist joint. (iv) Abrasion 1/2 "x 1/4 " on the right side of chin. (ii) Incised wound 3/4 " x 1/4 "x 1/4 " on the right side of face, just below maxillary prominences. (iii) Incised wound 1 x ⅓ x 1/2 " on the outer medial surface of the left wrist joint. (iv) Abrasion 1/2 "x 1/4 " on the right side of chin. (v) Teeth-Two incisor of upper side are broken. (vi) Lacerated wound irregular oval shaped, size varing from 1/4 x 1/2 to one and half inch x1" on the left side of chest in area of 4x5" from 5th to 8th I.C.S. in mid clavicular line. The edges of wounds are inverted of the wounds are directed obliquely medialy down wards from left to right side with collar of soot is present on edges. He has proved the post-mortem Report Ex.P/18. In his opinion, the death was caused due to gun shot injury and due to the sharp-edged weapon leading to extensive internal haemorrhage. He has also stated that the injuries were anti-mortem. He has further stated that gun-shot injuries were sufficient in itself to cause death in ordinary course of nature. 7. P.W. 6 Dr. Ashok Kumar also stated that he conducted the post-mortem of the body of deceased Kalu Singh and found the following injuries on his person : (i) Incised wound 6x 1/2 x4" on the right side of neck, cut sharply, up to the cervical vertebrae, also cut & spinal cord visible. (ii) Incised wound 4x one and half x2 on the right side of lower part of scalp, just above 1st injury, cut sharply the lower part of occipital bone on right side & also extended up to cerebellum portion of brain. (iii) Abrasions size varied 1/2 x 1/4 to 1/2 x 1" 3 in number on the anterior medial side of right leg. (iv) Lacerated wound 3/4 x ⅓ " gun shot wound directed medially downward on left side at level of 10th I.C.A. in anterior axillary line with inverted margins. (v) Lacerated wound : Irregular oval shaped 13 wounds of size varies from 1/4 x 1/4 " to 1/2 x 3/4 " on the right side of chest, from 3 ICS to 11th ICS in area of 6x8". The wounds are directed from right to left side obliquely and slightly upwards with collar of soot is present on edges. He has proved the post mortem Report Ex.P/19. All the injuries were ante-mortem. The wounds are directed from right to left side obliquely and slightly upwards with collar of soot is present on edges. He has proved the post mortem Report Ex.P/19. All the injuries were ante-mortem. In his opinion, the death was due to gun shot and due to sharp edged weapon leading to extensive internal and external haemorrhage. The homicidal death of Kalu Singh and Kashi Ram has not been disputed by the defence. 8. P.W. 1 Pratap Singh has stated that while he alongwith his servant Kalu Balai were sleeping in the but and his son Kalu Singh and his servant Kashi Ram were sleeping in the adjoining hut, they were awakened by a voice of gun fire. There was second and third gun fire again. They got up and found that accused Vijay Singh, Mohan Singh, Ranjeet Singh, Jugraj Singh, Akhtar Hussain and Iqbal were assaulting Kalu Singh and Kashi Ram by different weapons in their hands. He also stated that Mohan Singh was armed with a Gandasi, Ranjeet Singh countrymade pistol (Katta), Jugraj Singh gun, Akhtar sword, Vijay Singh lathi and Iqbal axe. Out of fear, he ran towards the village raising voice for the help. His voice attracted his brother Chhatar Singh and his son Doongar Singh. They immediately reached on the spot. He disclosed to them that Kalu Singh and Kashi Ram are assaulted by people of Barodia. At that time other villagers namely, Bhoor Singh, Bapu Singh, Kishore Singh and Chhatar Singh also arrived. He asked them that half of them may guard the dead bodies and half of them may guard the house. He proceeded for lodging the FIR at the Police Station. He gave some details of the injuries on two bodies caused by gun fire, sword and lathi. Both the dead bodies were smeared with blood. He also stated that there was an old enmity. He further stated his two brothers were earlier murdered by the same party. He also stated that a case was also filed against him for offence u/s IPC. He further stated that on the same day at about 10 a.m. a quarrel had taken place between Hari Singh and Ranjeet Singh on the Bus Stand of village Jharjhari. He further stated his two brothers were earlier murdered by the same party. He also stated that a case was also filed against him for offence u/s IPC. He further stated that on the same day at about 10 a.m. a quarrel had taken place between Hari Singh and Ranjeet Singh on the Bus Stand of village Jharjhari. In the cross-examination, he admitted that hearing the voice of the gun fire after seeing the incident, he rushed towards the village but he neither removed the dead bodies nor he reached near to them. He also stated that he witnessed the incident from a distance of 15-20 ft. He also stated that he gave the name of Arjun Singh and Jugraj Singh on the basis of certain impression. He also stated that the accused persons left the place of incident only after the arrival of Doongar Singh and Chhatar Singh. He also admitted that there is a house of Chhatar Singh at a distance of 50-60. He also stated that Chhatar Singh arrived on the spot after the other villagers had arrived. 9. P.W. 2 Chhatar Singh stated that on hearing the voice of gun fire he came out of the house with a stick and battery. He heard the voice of another gun fire. He proceeded a little and again heard the third voice of gun fire. He raised voice and enquired about the incident. In response, there was a voice " ekjuk D;k ekjuk D;k ". He also raised a voice and called the other villagers. When he was proceeding towards the field, on the way Pratap Singh met him. He was weeping. He disclosed that Kalu Singh and Kashi Ram have been killed by the people of Barodia. When he proceeded further, he saw the accused persons jumping the Nala. He identified them as Vijai Singh, Mohan Singh, Ranjeet Singh, Jugraj Singh, Akhtar, and Iqbal. He identified all the accused persons present in the Court. He also stated that Randheer Singh and Jugraj Singh were carrying guns in their hands. Vijal Singh was carrying a stick with Dharia, Mohan Singh was also carrying the same sort of stick. Iqbal was armed with a sword. He also stated that Akhtar was carrying a sword and Iqbal was carrying a kulhari. He then reached on the placed of incident and found two dead bodies lying. Vijal Singh was carrying a stick with Dharia, Mohan Singh was also carrying the same sort of stick. Iqbal was armed with a sword. He also stated that Akhtar was carrying a sword and Iqbal was carrying a kulhari. He then reached on the placed of incident and found two dead bodies lying. The neck of Kalu Singh was cut and he had sustained gun shot injuries. Kashi Ram had also sustained gun shot injuries and there was an injury caused by sword on his head. There was profuse bleeding. He also stated that on the same day at about 4, a quarrel ensued between Ranjeet Singh and Hari Singh at the Bus Stand of Jharjhari. He further stated that Hari Singh is the son of Pratap Singh and Ranjeet Singh is the nephew of accused Mohan Singn. He also stated that there is an old enmity between the parties. He also proved the police memos. In the cross-examination, he admitted that he is the real brother of P.W. 1 Pratap Singh. He also admitted that the distance between his house and the field where the incident took place is about 400-500 yards. He also stated that the Nala, which was jumped by the accused persons is adjoining to the field where the incident took place. He also admitted that Pratap Singh returned to the place of incident alongwith him. He also stated that Bhoor Singh, Bapu Singh, Kishore Singh Chhatar Singh and other villagers had arrived on the spot immediately. He admitted that in addition to the accused persons, there were two or more persons, whom he could not identify. He had seen the faces of the accused persons in the flash of torch. He had seen the accused persons from the distance of 10-15 ft. He also stated that they are three brothers. Pratap Singh is his real brother. One of the brother Udai Singh was murdered about 15-20 years ago. 10. P.W. 3 Kalulal has not supported the prosecution case and as such he has been declared hostile. PW. 4 Bhoor Singh stated that in the night about 11-11.30 p.m. he heard the voice of gun fire coming from the field of Pratap Singh. He heard three gun shot tires, and thereafter there was a cry in the village. He rushed towards the house of Pratap Singh. PW. 4 Bhoor Singh stated that in the night about 11-11.30 p.m. he heard the voice of gun fire coming from the field of Pratap Singh. He heard three gun shot tires, and thereafter there was a cry in the village. He rushed towards the house of Pratap Singh. Alongwith him Bapu Singh, Kishore Singh and Manohar Singh also reached on the spot. Pratap Singh was crying that his son and his servant Kashi Ram have been killed. Pratap Singh disclosed to him that six persons, namely, Iqbal, Vijai Singh, Mohan Singh, Jugraj Singh and Akhtar have killed his son. He also stated that he had seen the dead bodies of Kashi Ram and Kalu Singh. He has given the brief descriptions of the injuries on the dead bodies of Kalu Singh and Kashi Ram. Though, there is a lengthy cross-examination from this witness, but nothing has been elicited to discredit his testimony. 11. P.W. 5 Doongar Singh stated that on the date of incident, he was at his residence and his brother Kalu Singh, father Pratap Singh, servant Kalu Balai and Kashi Ram were in the field. All of a sudden he heard the voice of gun shot. There were three successive gun shot fires. He came out of the house. His uncle Chhatar Singh also came out of the house. After the gun fire, they heard the raised voice of his father saying " ekj fn;k ekj fn;k ". He alongwith his uncle Chhatar Singh rushed towards the place of incident. His father Pratap Singh disclosed that Kalu Singh and Kashi Ram have been killed by the people of Barodia. He found in the filed Ranjeet Singh armed with a double barrel gun. Vijai Singh was carrying a lathi in his hand, Mohan Singh was carrying a Gandasi in his hand, Jugraj Singh was armed with a gun, Akhtar was carrying a sword in his hand and Iqbal was carrying an axe. He identified all of them. He also saw the dead bodies of Kalu Singh and Kashi Ram and noticed the injuries on their person. He has also stated that other villagers, namely, Bapu Singh, Kishore Singh, Bhoor Singh, Manohar Singh and Chhatar Singh arrived on the spot. He identified all of them. He also saw the dead bodies of Kalu Singh and Kashi Ram and noticed the injuries on their person. He has also stated that other villagers, namely, Bapu Singh, Kishore Singh, Bhoor Singh, Manohar Singh and Chhatar Singh arrived on the spot. He has further stated that the quarrel which had ensued between Hari Singh and Ranjeet Singh on the Bus Stand of village Jharhari, Ranjeet Singh had given him a challenge saying that in the night he will kill them and their party. He further stated that there was an enmity between the parties for last 12- 13 years. He further stated that Udai Singh and Indra Singh, the brothers of his father Pratap Singh were earlier murdered by the accused party. In spite of lengthy cross-examination, nothing has been elicited to discredit the testimony of this witness. 12. P.W. 7 Prithvi Singh, P.W. 8 Shyam Lal, PW. 9 Mohanlal and P.W. 10 Nanu Ram are the formal police witnesses and they have proved the various memos prepares by the police during investigation. 13. P.W. 11 Banshilal stated that he runs a hotel on the Bus Stand of village Jharjhari. He also stated that a quarrel had taken place between Hari Singh s/o Pratap Singh and Ranjeet Singh. He intervened and separated them. In the next morning he heard that two persons have been murdered. 14. P.W. 12 Jagdish Prasad is the Investigating Officer. He has given all the details of investigation. 15. The question arises for the consideration is as to whether in the facts of the case, the conviction of the appellants can sustain on the sole testimony of P.W. 1 Pratap Singh. A criticism has been levelled against this witness is that is conduct is unnatural in as much as instead of rushing towards the victims to save them, he rushed towards the village. There is no substance in the contention. The reading of the statement of this witness shows that after hearing the voice of first gun shot, he was awakened. Thereafter, there were two successive gun shot fires. He got up and from the distance of 15-20 ft., saw all the accused persons assaulting Kalu Singh and Kashi Ram. Thereafter, he raised voice for help, saw the dead bodies and rushed towards the village. In our view, the conduct of the witness is quite natural. Thereafter, there were two successive gun shot fires. He got up and from the distance of 15-20 ft., saw all the accused persons assaulting Kalu Singh and Kashi Ram. Thereafter, he raised voice for help, saw the dead bodies and rushed towards the village. In our view, the conduct of the witness is quite natural. The instinct of self preservation will not permit him to go near his son when he was being assaulted by deadly weapons. 16. Learned counsel for the appellant has also pointed out that this witness has admitted in cross-examination that he had given the names of Arjun Singh and Jugraj Singh only on the basis of impression. There is no substance in the contention as well because Arjun Singh and Jugraj Singh were not put to trial. The police did not file challan against them. 17. It is also contended that as it was a dark night and the witness could not have seen the assailants from an another hut, more particularly when a fire was between both the huts. We find no substance in this of contention as well. The accused persons were known to the P.W. 1 Pratap Singh and there is nothing unusual in identifying the persons known from a distance of 15-20. 18. It is lastly contended that P.W. 1 Pratap Singh is a partisan witness. It is well settled that the evidence of the witness of occurrence cannot be thrown overboard, merely because, he is interested and partisan witness. Pratap Singh has lost his son in the incident. We do not find any reason why Pratap Singh should leave the real assailants and falsely implicate the accused persons. The statement of this witness is substantially corroborated by the FIR as well as the medical evidence. That apart, the statement of P.W. 1 Pratap Singh find support from the evidence of P.W. 2 Chhatar Singh and P.W. 5 Doongar Singh. Both the witnesses have reached on the spot immediately. They have identified the accused persons running away from the place of incident. Applying the normal rule of prudence, we conclude that the testimony of P.W. 1 Pratap Singh is natural and trustworthy. The trial Court has rightly relied upon the testimony of this witness. 19. Both the witnesses have reached on the spot immediately. They have identified the accused persons running away from the place of incident. Applying the normal rule of prudence, we conclude that the testimony of P.W. 1 Pratap Singh is natural and trustworthy. The trial Court has rightly relied upon the testimony of this witness. 19. As regards recovery of the weapons of the offence from the various accused persons, the prosecution has led evidence in that regard, but the same is not sufficient to connect the accused appellants with the crime as no human blood was found on the recovered weapons. In case of recovery of gun and katta from Ranjeet Singh and Jugraj Singh, the prosecution has not produced any satisfactory evidence to connect them with the crime. There is general criticism that all the recoveries have been made from the one heap of grass at one point of time within a span of one hour. On careful consideration of the evidence, we are of the view that though the recoveries cannot be said to be tainted or planted, but they do not provide a sufficient support to the prosecution case. 20. In view of the aforesaid, we do not find any infirmity in the conclusion arrived at by the trial court holding the appellants guilty of the murder of Kalu Singh and Kashi Ram.Consequently, we find no merit in this appeal. The appeal is dismissed. The conviction of the appellant for the various offences mentioned above is upheld. All the accused persons except Vijai Singh are in jail. They will serve out remaining part of the sentences. The first accused-appellant Vijay Singh is on bail. He shall immediately surrender to the custody to undergo the remaining part of the sentence.Appeal dismissed. *******