JUDGMENT 1. - On being charged with and convicted for the murder of four persons, namely; Manohar Singh, Nagu Singh, Inder Singh and Bapu Singh along with 22 other accused persons, the appellants have preferred this jail appeal against the judgment passed by the learned trial court on 13th February, 2004. 2. Earlier, against the aforesaid impugned judgment passed by the learned trial court, the accused Kalu Lal, Inder Singh, Bal Chand, Suresh, Ram Prasad and Shri Ram had filed an appeal (313/2004). Another appeal (339/2004) against the judgment of the learned trial court was filed by Prahlad Singh, Babulal, Bhagwan Singh, Amar Singh, Bapu Lal, Kanti Ram and Ram Prasad. Co-accused Prithvi Singh, Jagdish, Man Singh, Nand Ram and Prahad had filed a separate appeal (385/2004). Likewise, an appeal (428/2004) was preferred by Bahadur Singh, Tanwar Singh and Man Singh. A separate appeal (1096/2004) was filed by Prahlad Singh against the judgment passed by the learned trial court. Though the present appellants were also convicted and sentenced by the learned trial court vide judgment dated 13th February, 2004 along with aforesaid 22 accused persons but they did not file any appeal at that time.Ultimately, the accused appellants Ram Singh and Kesar Singh submitted this appeal from jail challenging the impugned judgment passed by the learned court below. Taking into consideration the circumstances and holding that the delay appears to be bonafide, the application under section 5 of the Limitation Act was allowed by the court on 19th April, 2010 and the delay in filing the appeal was condoned. The appeal came up for hearing before us on 3rd March, 2011 and the arguments were concluded by both the sides. 3. The accused appellants Ram Singh and Kesar Singh, both sons of Omkar Singh were convicted for the offence under sections 147 and 148 IPC and sentenced for one year simple imprisonment and a fine of Rs. 500/- each, in default of which to further undergo one month simple imprisonment.Further, the appellants were convicted for the offence under section 302 read with section 149 IPC and sentenced for imprisonment for life and a fine of Rs. 1,000/- each, in default of which to further undergo three months simple imprisonment.Under section 307 read with section 149 IPC, the appellants were sentenced for 7 years rigorous imprisonment and a fine of Rs. 1,000/- each, in default of which to further undergo three months simple imprisonment.Under section 307 read with section 149 IPC, the appellants were sentenced for 7 years rigorous imprisonment and a fine of Rs. 1,000/- each, in default of which to further undergo three months simple imprisonment.All the sentences were to run concurrently. 4. The prosecution case was initiated on the parcha bayan (Ex.P-17) of one Amar Singh (PW-15) which was recorded by Shivraj Singh (PW-5), SHO police station Sunel on 10th September, 2001 at 9.30 p.m. It was stated in the parcha-bayan that around 6.45 p.m. when Amar Singh was at his residence, he heard a hue and cry of his cousin brother Indra Singh, coming from the agricultural field known as 'Patwari-ka-khet'. When Amar Singh came out of his house, he saw Man Singh, Bahadur Singh, Tanwar Singh, Kalu Lal, Shri Ram Dhakad, Suresh Dhakad, Ram Prasad Dhakad, Bal Chand, Shadi Lal Dhakad, Amar Singh, Bhawani Lal Dhakad, Nanda, Ratti Ram Dhakad, Prahlad son of Pratap Dhakad, Jagdish Dhakad, Prahlad son of Man Singh Dhakad, Indra Singh, Prithvi Singh, Kanhi Ram Dhakad, Bhagwan Dhakad, Prahlad son of Nathu Dhakad, Ram Prasad, Kesar Singh, Ram Singh, Bala Ram Dhakad, Babu Lal, Nand Ram and Man Singh armed with swords, guns, kattas, lathis and gandasis. They caused injuries to Indra Singh and murdered him. Thereafter, the assailants had chased the informant Amar Singh and inflicted injury by a sword on his right hand. Thereafter, the father of informant Bapu Singh tried to intervene and Man Singh opened fire at him, as a result of which Bapu Singh also died. Manohar Singh and Nagu Singh were also murdered by the accused persons.On the said parcha-bayan, a first information report came to be registered against 29 persons for the offence under sections 147, 148, 149, 302, 324 and 323 IPC. Thereafter, the investigation commenced, during the course of which the police collected necessary evidence, prepared memos, recorded statements of the witnesses, got the dead-bodies and the injured examined by the medical jurist, the accused persons were arrested etc. etc. On conclusion of the investigation, charge-sheet was filed against all the accused persons. The trial commenced after framing of charges against all the accused persons for the offences under sections 120B, 147, 148, 302/149, 307/149 IPC, Section 3/25 and 5/27 of the Arms Act. etc. On conclusion of the investigation, charge-sheet was filed against all the accused persons. The trial commenced after framing of charges against all the accused persons for the offences under sections 120B, 147, 148, 302/149, 307/149 IPC, Section 3/25 and 5/27 of the Arms Act. The accused persons denied the charges and claimed for trial. 5. The prosecution in support of its case produced 24 witnesses. In their statement under section 313 Cr.P.C., the accused denied the charges and claimed innocence. Four witnesses were then examined in defence. On conclusion of trial, the learned trial court convicted and sentenced 24 accused persons for the offence afore-mentioned. However, five accused persons were acquitted of all the charges. Aforesaid appeals were filed by 22 persons and the present one has been filed by Ram Singh and Kesar Singh. 6. Learned counsel for the accused appellants has submitted that though the prosecution case is said to have been initiated on the parcha bayan (Ex.P-17) of injured eye witness Amar Singh (PW-15) but he was not in a fit condition to narrate anything as he had sustained 12 injuries. Even the doctor (PW-2) had stated that he was in semi-conscious condition. Similarly, Dr. Chauhan (PW-6) had stated that earlier condition of Amar Singh must have been serious and as such he could not have been in a condition to give any statement. Further, it has been submitted by the counsel for the appellants that even in the parcha bayan general allegations have been levelled against the accused appellants. It has also been submitted that Amar Singh informant, like other prosecution witnesses, changed his version and made improvements during the course of trial. Further it is submitted by the counsel for the appellants that three accused persons, namely; Man Singh, Bahadur Singh and Ram Prasad were seriously injured and their injury reports are Ex.D-10, 19 and 20 on record. But the prosecution has not explained the injuries sustained by the accused persons and as such it casts a shadow of doubt on the prosecution story and that it had not come with the true version and the manner in which the incident had taken place. 7. On perusal of the evidence on record, it is revealed that the prosecution case is based on ocular evidence of injured witnesses Amar Singh (PW-15), Ishwar (PW-12), Lal Singh (PW-14), Chain Singh (PW-17) and Smt. Bhura Bai (PW-24). 7. On perusal of the evidence on record, it is revealed that the prosecution case is based on ocular evidence of injured witnesses Amar Singh (PW-15), Ishwar (PW-12), Lal Singh (PW-14), Chain Singh (PW-17) and Smt. Bhura Bai (PW-24). The prosecution witness Amar Singh has by and large reiterated before the trial court the version given by him in the parcha bayan (Ex.P-17). The said statement of Amar Singh has been corroborated by the statement of Ishwar Singh, Lal Singh, Chain Singh, Barji Bai and Smt. Bhura Bai. 8. The death of deceased Manohar Singh, Nagu Singh, Inder Singh and Bapu Singh was homicidal in nature as is clearly revealed from the medical evidence on record including the statement of the medical jurist Dr. Anil Kaushik (PW-2). The injuries sustained by deceased Manohar Singh, as given in the post-mortem report (Ex.P-4), are as under: 1. Incised wound 10x5 bone deep brain material out Scalp post occipital parietal 2. Incised wound 2"x 1/2" B deep chin Rt. Mandible Rt. up lower incisor broken. 3. Incised wound 3"x1" B deep obl. Rt. Leg lat.L.1/3 4. Incised wound 6"x1"xB deep below obl. Tibia Rt. 5. Incised wound 3"x1" skin deep obl. Rt. Knee. 6. Incised wound 3"x1" bone deep Ft. FA near wrist Ext. surface cut Red ulna bone. 7. Incised wound 3"x1"xBone deep with tibia left leg up ⅓ laterally. 8. Bruise 7"x11/2" chest middle area obl." The deceased Nagu Singh has sustained following injuries, in accordance with the post-mortem report (Ex.P-12). "1. penetrating wound 1.5" diameter deep to brain material, frontal bone. 2. Incised wound 3"x1" B deep at scalp Rt. Parietal. 3. Incised wound 3"x1" Bone deep scalp top left 4. Incised wound 1.5"x1"x1 left leg medically below knee. 5. Incised wound 1"x 1/2"x 1/2" left leg front top ⅓. 6. Incised wound 1"x 1/2"x 1/2" Rt. Thigh laterally ⅓. 7. Abrasion 1"x 1/4" below Rt. eye. 8. Abrasion 1"x 1/4" below left eye. 9. Incised wound 1"x 1/2" upper lip left side." Similarly, deceased Inder Singh had sustained following ante-mortem injuries, as per post-mortem report Ex.P-13). "1. Incised wound 3"x1" bone deep (fracture) scalp lat. of occipital area. 2. Incised wound 5"x3"x bone deep transverse trachea oesophagus cut. 3. Incised wound 6"x2"x bone deep chin front obliquely with cut mandible. 4. Incised wound 3"x1"x 1/2" cheek rt. side transversely. 5. "1. Incised wound 3"x1" bone deep (fracture) scalp lat. of occipital area. 2. Incised wound 5"x3"x bone deep transverse trachea oesophagus cut. 3. Incised wound 6"x2"x bone deep chin front obliquely with cut mandible. 4. Incised wound 3"x1"x 1/2" cheek rt. side transversely. 5. Stab wound 1"x 1/2"x cavity deep abdomen obliquely 3" below umblicus." Deceased Bapu Singh had sustained injuries, as per post-mortem report (Ex.P-93), as follows: "1. Gunshot injury 11/2" diameter circular with blackening in 2" are going from down to upward up to base of the skull. Rt. pallets costal from the wound as well recovered as from brain material both of the skull, plastic circular cover of bullet is also recovered. 2. Incised wound 3"x 1/2" B deep occipital region. 3. Incised wound 3"x 1/2" bone deep top of scalp 4. Incised wound 3"x 1/2"x B deep back on VC trans. of liver 5. Incised wound 2"x 1/4" bone deep left leg up ⅓. 6. Lacerated wound 2"x 1/2" bone deep Dorsum of hand base of Mid & Rt. 7. Lacerated wound 1"x 1/2"x SK deep Rt. leg L ⅓ skin tibia." 9. It is to be noted that accused Man Singh was medically examined (Ex.D-10) and had sustained following injuries: "1. Incised wound 3x 1/2x 1/2 on Rt. shoulder. 2. Abrasion 2 in number irregular size." Accused Bahadur Singh had sustained following injuries, as per injury report (Ex.D-19). "1. Incised wound 31/2"x1"x deep to joint Rt. shoulder 2. Incised wound 2"x 1/2"x Muscle deep Rt. Forehead. 3. Incised wound 1"x 1/4"x skin deep left hand posterior laterally. Accused Ram Prasad had sustained injuries as per injury report (Ex.D-20) which are as under: "1. Incised wound 7"x11/2"x bone deep Rt. side of face. 2. Incised wound 4"x2"x bone deep 3" behind left ear. 3. Incised wound 3"x 1/2"x bone left forehead." It is note worthy to mention here that so far as present appellants Ram Singh and Kesar Singh are concerned, they had not sustained any injury what-so-ever on their person. 10. The appeals filed by the co-accused persons, as mentioned above, were considered by a co-ordinate bench of this court and finally decided on 29th May, 2008, whereby the appeal of Bapu Lal son of Ram Lal was allowed and he was acquitted of all charges levelled against him. 10. The appeals filed by the co-accused persons, as mentioned above, were considered by a co-ordinate bench of this court and finally decided on 29th May, 2008, whereby the appeal of Bapu Lal son of Ram Lal was allowed and he was acquitted of all charges levelled against him. But the appeals filed by the remaining 21 accused persons were dismissed and the conviction and sentence awarded to them by the learned trial court was up-held. 11. The present appeal as well as the appeals filed by Kalu Lal and 5 others (313/2004), Prahlad Singh and 6 others (339/2004), Prithvi Singh and 4 others (385/2004), Bahadur Singh and 2 others (428/2004) and Prahlad Singh (1096/2004) arise out of common judgment passed by the learned trial court on 13th February, 2004. While considering the earlier appeals, a Division Bench of this court held that except the appeal of Bapulal son of Ramlal, there was no substance and the same were dismissed. The said judgment was passed after considering the impugned judgment passed by the trial court, out of which the present appeal of Ram Singh and Kesar Singh also arises. In the said judgment passed by the co-ordinate bench of this court on 29th May, 2008, after considering the facts and circumstances, gave the following findings: "16. Fact situation emerges from the material on record may be summarised thus:- (i) Four persons viz. Manohar Singh, nagu Singh, Inder Singh and Bapu Singh died in the incident. (ii) Amar Singh (PW-15) sustained as many as 12 injuries out of which 10 were incised wounds and two were lacerated wounds on parietal region. (iii) Accused appellants Man Singh, Bahadur Singh and Ram Prasad also sustained incised wounds and the injuries were not explained by the prosecution witnesses. (iv) Report lodged by accused appellant Man Singh was entered in Rojnamcha Ex.D-15A. 17. In Bapu Ram v. State of Punjab, (2008) 3 SCC 709 , the Apex Court indicated thus:- (para 19) "Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or when the defence gives a version which competes in probability with that of the prosecution case." 18. In the instant case where four persons were murdered by a group of assailants, non explanation of injuries of three accused by the prosecution does not assume much importance. It cannot be inferred that the prosecution has suppressed the genesis and origin of the occurrence. We see no reason to disbelieve the testimony of Amar Singh (PW-15), who is an injured eye witness. Amar Singh categorically stated that he was fully conscious at the time of recording of Parcha Bayan. Shiv Raj Singh SHO (PW.5), who recorded parcha bayan of Amar Singh at his house, also deposed that when he recorded parcha bayan of Amar singh he was conscious. 19. So far as the argument in regard to change of place of the incident is concerned, we find that the deceased persons were done to death while they were running for their life. The assailants chased them and inflicted injuries on their person. 20. We also find no merit in the submission of learned counsel for the appellants that there was a probability of the accused having acted in self defence. There is nothing on record to show that at the time of incident the appellants were facing imminent peril of life and limb. The defence in the instant case has not succeeded in establishing with a balance of probability that the four deceased persons first assaulted Bahadur Singh, Man Singh and Ram Prasad and thereupon they assaulted the four deceased. 21. In order to attract the provisions of Section 149 IPC the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. The prosecution in the instant case has established beyond reasonable doubt that except appellant Bapu Lal, who was not named in the parcha bayan, all other appellants were members of the unlawful assembly and they committed crime in prosecution of the common object of the assembly and they were rightly convicted and sentenced." 12. The court came to the conclusion in para 22 and disposed of the earlier appeals in the terms that appeal of Bapulal was allowed and he was acquitted of all the charges levelled against him. But it did not find any merit in the appeals filed by other co-accused persons and the same were dismissed. The court came to the conclusion in para 22 and disposed of the earlier appeals in the terms that appeal of Bapulal was allowed and he was acquitted of all the charges levelled against him. But it did not find any merit in the appeals filed by other co-accused persons and the same were dismissed. Consequently, the impugned judgment passed by the learned trial court on 13th February, 2004 was modified accordingly. 13. In so far as the case of the present appellants Ram Singh and Kesar Singh and the contentions raised on their behalf are concerned, we are of the considered opinion that the findings given by the co-ordinate bench of this court on 29.5.2008 up-holding the judgment passed by the learned trial court are equally applicable in the present appeal for the self-same reasons. It is pertinent to mention here that so far as the contentions with regard to non-explanation of the injuries on the person of the accused by the prosecution is concerned, is of no avail in case of the present appellants also for the reason that they had not sustained any injuries on their person at the hands of complainant party. Therefore, any omission on the part of the prosecution with regard to explanation of injuries to the other accused persons would not improve the case of the present appellants. 14. For the aforesaid reasons and the findings given by the co-ordinate bench of this court in the appeals filed by the other co-accused persons against the impugned judgment passed by the trial court, we are of the considered opinion that there is no merit in this appeal also. 15. Consequently, the appeal filed by the accused Ram Singh and Kesar Singh is hereby dismissed.Appeal dismissed. *******