JUDGMENT 1. - Arising out of judgment dated 19.10.2009 passed by learned Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 260/2001 (34/2000) these two appeals are before us. The learned trial court by the judgment impugned recorded conviction of accused-appellants Dala Ram and Sanwta Ram and also awarded sentence to them as under:-Accused-Dala Ram:- 302 I.P.C. Life imprisonment and a fine of Rs. 50,000/-, in default of payment of fine, further to undergo four years' rigorous imprisonment. 302/34 I.P.C. Life imprisonment and a fine of Rs. 50,000/-, in default of payment of fine, further to undergo four years' rigorous imprisonment. 325 I.P.C. Three years' rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine further to undergo two months' rigorous imprisonment. 323 I.P.C. Six months' rigorous imprisonment & a fine of Rs. 500/-, in default of payment of fine further to undergo one month's rigorous imprisonment. Accused-Sanwta Ram : 302 I.P.C. Life imprisonment and a fine of Rs. 50,000/-, in default of payment of fine, further to undergo four years' rigorous imprisonment for causing murder of Shaitana Ram. 302 I.P.C. Life imprisonment and a fine of Rs. 50,000/-, in default of payment of fine, further to undergo four years' rigorous imprisonment for causing murder of Bhoma Ram. 325/34 I.P.C. Three years' rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine further to undergo two months' rigorous imprisonment. 323 I.P.C. Six months' rigorous imprisonment & a fine of Rs. 500/-, in default of payment of fine further to undergo one month's rigorous imprisonment. 30 ARMS ACT Six months' rigorous imprisonment & a fine of Rs. 500/-, in default of payment of fine further to undergo one month's rigorous imprisonment. All the substantive sentence were directed to run concurrently. 2. In brief, facts of the case are that on 25.4.2000 a telephonic information was received at Police Station, Nagaur about the use of fire-arms in a quarrel between Sanwata Ram and his brothers in village Bhadana. A police team immediately proceeded and reached at the spot of occurrence and found that Prabhu Ram and Shaitana Ram were lying there with serious injuries and dead-body of Shri Bhoma Ram was also lying there. Both the injured persons were taken to Government Hospital and during the course of treatment Shaitana Ram also died. A police team immediately proceeded and reached at the spot of occurrence and found that Prabhu Ram and Shaitana Ram were lying there with serious injuries and dead-body of Shri Bhoma Ram was also lying there. Both the injured persons were taken to Government Hospital and during the course of treatment Shaitana Ram also died. The Station House Officer, Police Station, Nagaur Shri Tejpal Singh (PW-8) reduced the statement made by other injured Prabhu Ram in writing and on the basis of that, a case was registered. As per the statement reduced in writing, Shri Shaitana Ram, a School Teacher, in the morning at about 7:00 am on 25.4.2000 proceeded on his Moped (Vikky) for his school where he was working; at that time Sanwata Ram and Dala Ram intercepted him. Sanwata Ram was armed with a gun and Dala Ram was carrying a 'lathi'. A 'lathi' blow was given by Dala Ram on the head of Shaitana Ram. Prabhu Ram, who was standing at a distance of about 15 to 20 steps came forward to save Shaitana Ram but Sanwata Ram fired at him and that caused an injury in his left arm. A fire-arm injury was also caused to Shri Bhaga Ram. Hearing hue and cry, other step brother of Sanwata Ram, namely, Bhoma Ram also came out from the house, on whom too shot was fired and that caused his death. Mrs. Hukmi, daughter of Bhoma Ram also came forward, on whom too Sanwata Ram fired and that caused injuries on her legs. A shot was also fired on Shaitana Ram on his abdominal region. In the meanwhile Ganga W/o. Bhoma Ram, Sita W/o. Shaitana Ram and Geeta W/o. Prabhu Ram also arrived there. Shaitana Ram was then taken to his house where Dala Ram came and caused an injury to Shaitana Ram by giving a 'kassi' blow. Sanwata Ram accompanying Dala Ram also fired on Shaitana Ram. The entire incident occurred due to groupism and vengeance existing among cousins and step brothers. 3. The Investigating Agency acted upon the First Information Report and initiated investigation. During the course of investigation dead-bodies of Shaitana Ram and Bhoma Ram were subjected to autopsy and as per that report, Shaitana Ram and Bhoma Ram were having the following injuries:- Saitana Ram (Exhibit-P/14) 1. Lacerated wound 5 x 2 cm x one deep c#of rt frontal parietal & occipital bone. During the course of investigation dead-bodies of Shaitana Ram and Bhoma Ram were subjected to autopsy and as per that report, Shaitana Ram and Bhoma Ram were having the following injuries:- Saitana Ram (Exhibit-P/14) 1. Lacerated wound 5 x 2 cm x one deep c#of rt frontal parietal & occipital bone. 2. Lacerated wound 6 x 7 cm x muscle deep on lt renal angle region. 3. Lacerated wound 6 x 7 cm x muscle deep on lt renal angle on connected wound 0.3 x 0.3 cm on lumber region (wound of entry). The above mentioned injuries are ante-mortem in nature. 25 pellets recovered from body. Bhoma Ram (Exhibit-P/15) 1. Multiple lacerated wound 0.3 x 0.3 cm, No. 25 with blackening over the ant aspect of chest (wound of entry). 2. Multiple lacerated wound 0.3 x 0.3 cm No. 7 with blackening over the abdomen (wound of entry). 3. Punctured wound in small intestine. 4. Punctured wound in liver. Above mentioned injuries are ante-mortem in nature pellets recovered from body sixteen. 4. The cause of death of Shri Shaitan Ram was internal hemorrhage due to multiple injuries to vital organs like brain and kidney. The cause of death of Shri Bhoma Ram was internal hemorrhage due to multiple injuries to vital organs like liver and small intestine. The autopsy was made by a Medical Board consisting of Dr. H.B. Usta, Dr. R.K. Aggarwal and Dr. Bhom Singh Ranawat. The injured persons, namely, Smt. Hukmi, Bhaga Ram, Sita and Prabhu were also medically examined and the reports about the injuries noticed were made a part of investigation. 5. The Investigating Agency arrested accused Sanwata Ram and Dala Ram on 25.4.2000. At the instance of accused Sanwata Ram a 12-bore gun and six live cartridges were recovered on 25.4.2000 at 5:30 pm. The gun recovered was sent to State Forensic Science Laboratory, Jaipur for its ballistic examination and as per the report of Forensic Science Laboratory (Exhibit-P/67), the gun was a serviceable fire-arm. As per the barrel residue, the gun was fired, but definite time of such fire was not ascertained. On the basis of stereo compression and microscopic examination, the Ballistic Expert opined that six 12-bore cartridge cases (C-1 to C-6) from Pkt "J" were fired from the subject gun. As per the barrel residue, the gun was fired, but definite time of such fire was not ascertained. On the basis of stereo compression and microscopic examination, the Ballistic Expert opined that six 12-bore cartridge cases (C-1 to C-6) from Pkt "J" were fired from the subject gun. The lead pellets recovered by the Investigating Agency were also found akin to the pellets normally used in 12-bore ammunition, with observation that those could have been fired from the subject 12- bore single barrel gun. Six 12-bore cartridges recovered at the instance of accused Sanwata Ram were also tested and out of them only one cartridge got misfired. At the instance of this accused his blood-stained clothes were also recovered and as per report of the Forensic Science Laboratory, the clothes were stained with blood having group "A", matching with the blood group of deceased. 6. At the instance of accused-Dala Ram two blood-stained 'lathies' was recovered as per document Exhibit-P/9 and those too were sent for their serological examination. As per the report of Forensic Science Laboratory, the 'lathi' was having bloodstains of group "A", matching with the blood group of deceased. 7. After complete investigation, a police report was filed before the court of learned Additional Chief Judicial Magistrate, Nagaur but the case being sessions triable, was committed to the court of sessions. The learned Sessions Court after providing an opportunity of hearing to accused-Sanwata Ram, framed charge under Sections 302, 307, 325 and 323 IPC read with Section 30 of Arms Act against him. A charge for committing offence under Section 302, 302/34, 307/34, 325 and 323 IPC was framed against accused-Dala Ram. On denial of the same, the trial commenced as desired. 8. The prosecution supported its case with the aid of 27 witnesses, out of whom Prabhu Ram (PW-1), Hukmi (PW-16), Hari Ram (PW-18), Sita (PW-14), Ganga (PW-17) and Geeta (PW-22) were cited as eye-witnesses. Shri Hari Ram (PW-18) also adduced evidence about the recoveries made at the instance of accused persons, being the attesting witness. Dr. H.B. Usta (PW-13) and Dr. Bhom Singh (PW-4), Members of the Medical Board attested the medical evidence with regard to death of Shri Bhoma Ram and Shri Shaitana Ram. Dr. C.B. Mathur (PW-25) and Dr. G.K. Mathur (PW-26) and Dr. Dr. H.B. Usta (PW-13) and Dr. Bhom Singh (PW-4), Members of the Medical Board attested the medical evidence with regard to death of Shri Bhoma Ram and Shri Shaitana Ram. Dr. C.B. Mathur (PW-25) and Dr. G.K. Mathur (PW-26) and Dr. Shailendra Jha (PW-7) adduced medical evidence in relation to the injuries received by injured persons, namely, Hukmi, Prabhu Ram, Sita and Bhaga Ram. Shri Tejpal Singh (PW-8) being the Investigating Officer narrated all the steps taken during the course of investigation. Suffice to mention that out of the eye-witnesses produced, Shri Prabhu Ram (PW-1) and Smt. Hukmi (PW-16) did not support the prosecution case, hence, they were declared hostile. 9. After completion of prosecution evidence, the accused were allowed to explain all adverse and incriminating circumstances available in prosecution evidence against them. Accused-Dala Ram while availing this opportunity stated that he is innocent and he has been falsely implicated in the case. Shri Sanwata Ram also termed the entire evidence false and pleaded his innocence with assertion that he has been falsely implicated. Both the accused also stated that on the fateful day Shaitana Ram and Buddha Ram came to their house with a 12-bore gun and on making alarm they fired on Bhoma Ram that caused his death. Bhagga Ram, Prabhu Ram and Hukmi also received injuries when Shaitana Ram was loading the gun. Bhoma Ram, who was step brother of accused Sanwata Ram before succumbing to the fire-arm injury caused a fire-arm injury to Shaitana Ram and that caused his death. In defence, statements of Nasrudeen Ansari (DW-1) were recorded and certain documents were exhibited. 10. The learned trial court after examining the entire evidence available on record, held the accused persons guilty for the charges levelled against them and sentenced they accordingly. 11. In appeal, the arguments advanced by learned counsel for the appellants are that the prosecution supported its case with the aid of six eye-witnesses and out of those, two eye-witness, namely, Prabhu Ram (PW-1) and Smt. Hukmi (PW-16) did not support the prosecution story. The presence of these two witnesses at the time of incident is not at all in doubt but the trial court relied upon the eye-witness, namely, Sita (PW-14) and Geeta (PW-22), who as a matter of fact were either not present at the spot of occurrence or were not in a position to see the incident occurred. The presence of these two witnesses at the time of incident is not at all in doubt but the trial court relied upon the eye-witness, namely, Sita (PW-14) and Geeta (PW-22), who as a matter of fact were either not present at the spot of occurrence or were not in a position to see the incident occurred. Eye-witness Hari Ram (PW-18), though, has not been declared hostile but he on asking stated in specific terms that he arrived at the place of occurrence quite later and he did not see Sanwata Ram and Dala Ram causing any fatal injury to anyone. It is further submitted that the trial court failed to appreciate the defence taken by the accused that Shaitana Ram along with Buddha Ram were the aggressor. Shaitana Ram killed Bhoma Ram and Shaitana Ram received fire-arm injuries from the gun fire shot made by Bhoma Ram in retaliation. The defence taken is substantiated from the statement made by Hukmi (PW-16) in cross-examination. 12. Per contra, as per learned Public Prosecutor, the entire incident occurred at a place where all the close relatives are residing and they are having their vested interest resulting into groupism. Smt. Geeta, who is wife of Prabhu Ram (PW-1) has given a definite statement irrespective of the fact that her husband Prabhu Ram did not support the prosecution story and was declared hostile. Smt. Hukmi, daughter of deceased Bhoma Ram did not support the prosecution case but her mother Smt. Ganga supported the prosecution case in totality. Smt. Sita, wife of deceased Shaitana Ram also narrated the facts which strengthens the prosecution case and the evidence adduced by Shri Hari Ram is also of the same nature. Besides the above, the recoveries made at the instance of accused persons and the opinion given by the Ballistic Expert as well as the Forensic Expert also supports the prosecution case. It is asserted that merely on the count that two eye-witnesses, who happens to be close relative of accused persons, can't be a reason to disbelieve the other eye-witnesses. 13. Heard learned Public Prosecutor and the learned counsel for the appellants. 14. The first argument advanced by learned counsel for the appellant is that the eye-witnesses on whom the trial court relied are not trustworthy as they were not in a position to see the entire incident in view of their location shown in the site-plan. 13. Heard learned Public Prosecutor and the learned counsel for the appellants. 14. The first argument advanced by learned counsel for the appellant is that the eye-witnesses on whom the trial court relied are not trustworthy as they were not in a position to see the entire incident in view of their location shown in the site-plan. Learned counsel submits that as per the site-plan (Exhibit-P/6), the accused were at the place "J" wherefrom house of Shaitana Ram was at a distance of about 60 Feet after a left turn. Similarly, dead-body of Bhoma Ram was lying at mark "X" i.e. at a place of more than 20 Feet from the place where the accused were said to be standing. As per the medical evidence, the fire injuries available on the corpus of Bhoma Ram were having blackening and that could have not been received if caused from the distance mentioned above. It is also stated that Smt. Ganga wife of Bhoma Ram, who came out from her house and admittedly remained close to the dead-body of her husband Bhoma Ram was not at all in a position to see what happened at the residence of Shaitana Ram and, therefore, the version of facts given by her is also not reliable. So far as the eye-witness Geeta W/o. Prabhu Ram is concerned, it is stated that she is an implanted witness in view of the fact that she has disclosed her presence at a closed yard, where she came to collect cattle feed, but the Investigating Officer while deposing before the court stated that he did not find any sign of opening the door from where Geeta collected the fodder. 15. We have considered the arguments advanced by pondering the evidence available. True it is, Shri Prabhu Ram (PW-1), who is first informant did not support the prosecution case and was declared hostile but he accepted that he put is signatures on the document Exhibit-P/1 i.e. his statement which was reduced in writing at the Government Hospital, Nagaur. Interestingly enough his wife Smt. Geeta she has supported the prosecution story. As per Geeta (PW-22), on the fateful day in between 6-7 am she went to the old house to bring fodder; at that time her husband was also standing there. Interestingly enough his wife Smt. Geeta she has supported the prosecution story. As per Geeta (PW-22), on the fateful day in between 6-7 am she went to the old house to bring fodder; at that time her husband was also standing there. Shaitana Ram, younger brother-in-law of this witness was proceeding for his school by Moped and at that time accused Dala Ram and Sanwta Ram stopped him. Sanwata Ram was armed with a gun and Dala Ram was having a 'lathi'. On saying by her husband Prabhu Ram to Sanwata Ram as to why he was creating nuisance in the morning hours; Dala Ram uttered that they will kill Shaitana Ram. Dala Ram then gave a 'lathi' blow on the head of Shaitana Ram and Sanwata Ram fired but the pellets caused injuries to her husband Prabhu Ram. Her father-in-law Bhagga Ram also tried to intervene but he too suffered fire-arm injuries. Hearing hue and cry Bhoma Ram came out but Sanwata Ram caused a fire arm injury to him also. Bhoma Ram immediately fell down and died at the spot. Sanwata Ram fired on Shaitana Ram and that caused injury on his stomach. Some pellets also entered in the legs of Shaitana Ram. Hukmi also came there and she too suffered fire-arm injuries. Wife of Bhoma Ram Smt. Geeta was also present there. Shri Prahlad Ram, Sarpanch subsequent thereto came and the injured were taken to the hospital. Hari Ram also came at the spot of occurrence. As already stated as per learned counsel for the appellant, this witness is not reliable on the count that as per Investigating Officer, there was no sign of opening of door of old house, which was otherwise closed for a long span of time. We do not find any force in the argument advanced. This witness has narrated the facts quite confidently and those are in absolute consonance with the facts averred in the document (Exhibit-P/1), the statement made by her husband Prabhu Ram at the first instance at Government Hospital, Nagaur. The statement was signed by Prabhu Ram. We do not find any force in the argument advanced. This witness has narrated the facts quite confidently and those are in absolute consonance with the facts averred in the document (Exhibit-P/1), the statement made by her husband Prabhu Ram at the first instance at Government Hospital, Nagaur. The statement was signed by Prabhu Ram. This clearly indicate that Prabhu Ram may had certain reasons to detract from his version of facts stated being a close relation to the accused, but this lady witness maintained whatever stated by her husband while lodging the First Information Report and further stated by herself while narrating the facts to the Investigating Agency as per Section 161 Cr. P.C. The trustworthiness of such a witness cannot be ignored merely on the count that the Investigating Officer failed to notice any sign of opening of door. 16. The other eye-witness Smt. Ganga is wife of deceased Bhoma Ram and mother of Hukmi (PW-16). Statements of this witness were recorded immediately after recording of the statements of Smt. Hukmi. Smt. Hukmi did not support the prosecution case but this witness supported the prosecution case in totality. According to Ganga, on the fateful day she was sitting with her husband and children and was preparing morning tea. Shaitana Ram, Sanwata Ram, Bhaga Ram, Prabhu Ram etc., were at their respective houses. Dala Ram was shouting that he will kill Shaitana Ram. Shaitana Ram then came, who was intercepted by Sanwata Ram and Dala Ram. Hearing hue and cry her husband Bhoma Ram came out to the open 'chowk'. A fire injury was caused to him by Sanwata Ram. This witness also witnessed that a fire-arm injury was also caused to her daughter Hukmi on her legs. This witness asked for help but of no consequence. Dead-body of her husband was lying there and her daughter also received serious injuries. This witness then saw that Dala Ram caused a head injury by 'lathi' to Shaitana Ram. Bhaga Ram, father of Shaitana Ram also came forward but he too was subjected to a fire-arm injury on his left arm. Shaitana Ram then rushed to his house and he was followed by Dala Ram. Dala Ram who gave a 'kassi' blow to him from its reverse side. Bhaga Ram, father of Shaitana Ram also came forward but he too was subjected to a fire-arm injury on his left arm. Shaitana Ram then rushed to his house and he was followed by Dala Ram. Dala Ram who gave a 'kassi' blow to him from its reverse side. Learned counsel for the appellant by relying upon the site-plan stated that it was not possible for her to see the incident that had taken place at the residence of Shaitana Ram causing his death. We do not find any just reason to examine this aspect of the matter in view of the fact that Smt. Ganga is an eye-witness to establish charge relating to murder of her husband Bhoma Ram and that has been successfully established from the evidence adduced by her and Smt. Geeta. 17. True it is, Smt. Hukmi has not supported the prosecution case but merely on that count we do not find any reason to disbelieve her mother, who is widow of Bhoma Ram, who died at the spot. 18. The third witness Smt. Sita (PW-14) is widow of deceased Shaitana Ram. As per this witness, Shaitana Ram proceeded for school in the morning but returned to house within few minutes with an injury on his head. At that time Dala Ram and Sanwata Ram also came there. Dala Ram gave a 'kassi' blow and then a shot was fired by Sanwata Ram. Learned counsel for the appellant failed to point out any reason to disbelieve this witness. 19. We are in absolute agreement with the trial court that the three eye-witnesses discussed above, witnessed the entire incident and no reason exists to disbelieve them. Worthwhile to notice here that the other witnesses also corroborates the evidence adduced by the eye-witnesses. Shri Hari Ram (PW-18) stated that he saw Sanwata Ram carrying a gun and he also heard and noticed 3-4 gun-shots. As per this witness, Dala Ram and Sanwata Ram were standing close to wall and Bhoma Ram was close to the wall of terrace and Bhoma Ram was standing down. His wife was also there, who was weeping. Bhaga Ram was also lying there having injuries on his legs. Shaitana Ram was having injuries on his legs wherefrom blood was oozing. The evidence adduced by this independent person substantiate the evidence adduced by the eye-witnesses. His wife was also there, who was weeping. Bhaga Ram was also lying there having injuries on his legs. Shaitana Ram was having injuries on his legs wherefrom blood was oozing. The evidence adduced by this independent person substantiate the evidence adduced by the eye-witnesses. Shri Hari Ram (PW-18) is also attesting witness in presence of whom gun was recovered at the instance of accused-Sanwata Ram and 'lathi' was recovered at the instance of accused-Dala Ram. The evidence adduced by the Ballistic Expert and Forensic Expert also supports the prosecution story. The cumulative effect of all these is nothing but finding of guilt as arrived at the by the trial court. 20. In view of whatever discussed above, we do not find any wrong with the conviction recorded by the trial court and the sentence awarded. In view of it, the appeal is dismissed. However, looking to the fact that the appellants are behind the bars from last several years and further that they are coming from marginal peasant family, we deem it appropriate to reduce the fine imposed by the trial court. Accordingly, the sentence awarded shall be as under:-Accused-Dala Ram:- 302 I.P.C. Life imprisonment and a fine of Rs. 1000/-, in default of payment of fine, further to undergo two months' simple imprisonment. 302/34 I.P.C. Life imprisonment and a fine of Rs. 1000/-, in default of payment of fine, further to undergo two months' simple imprisonment. 325 I.P.C. Three years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo 15 days simple imprisonment. 323 I.P.C. Six months' rigorous imprisonment & a fine of Rs. 100/-, in default of payment of fine further to undergo 07 days simple imprisonment. Accused-Sanwta Ram : 302 I.P.C. Life imprisonment and a fine of Rs. 1000/-, in default of payment of fine, further to undergo two months' simple imprisonment for causing murder of Shaitana Ram. 302 I.P.C. Life imprisonment and a fine of Rs. 1000/-, in default of payment of fine, further to undergo two months' simple imprisonment for causing murder of Bhoma Ram. 325/34 I.P.C. Three years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo 15 days simple imprisonment. 323 I.P.C. Six months' rigorous imprisonment & a fine of Rs. 100/-, in default of payment of fine further to undergo 07 days simple imprisonment. 325/34 I.P.C. Three years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo 15 days simple imprisonment. 323 I.P.C. Six months' rigorous imprisonment & a fine of Rs. 100/-, in default of payment of fine further to undergo 07 days simple imprisonment. 30 ARMS ACT Six months' rigorous imprisonment & a fine of Rs. 100/-, in default of payment of fine further to undergo 07 days simple imprisonment. All the substantive sentence were directed to run concurrently. Appeals dismissed. *******