Ali Khan and Others vs State of Rajasthan and Others

Kanwaljit Singh Ahluwalia, J.—On 13.12.2003, at about 11:00 AM, in the field of Tota Ram Jatav, the murder of Dattari, was caused due to fire arm injury. Ram Sharan (P.W. 20) received injuries falling within the ambit of Section 307 IPC, whereas, Smt. Budhi Devi (P.W. 16) suffered grievous injury with blunt weapon, falling within the ambit of Section 325 IPC. Simple injuries were also caused to Hari Singh (P.W. 15), Nand Ram (P.W. 9), Lallu (P.W. 1), Smt. Ramdei (P.W. 22), Dharmpal (P.W. 12), Nihal Singh (P.W. 13), Shiriya (P.W. 14), Roshan (P.W. 2), Gopal and Baney Singh. But Gopal and Baney Singh have not been examined by the prosecution.

A written complaint (Exhibit-P/1) against the conduct of the accused, who caused murder of Dattari and caused injuries to number of persons, on 13.12.2003, at 1:00 PM, was submitted by Lallu (P.W. 1) before ASI Rajendra Singh (P.W. 18), In-charge, Police Station, M.I.A., Alwar. On the basis of above written complaint, a formal FIR was registered at Police Station M.I.A., Alwar (Exhibit-P/2), for the offence under Sections 147, 148, 149, 307, 323, 341 and 302/34 IPC. Lallu (P.W. 1) in written complaint (Exhibit-P/1) named following twenty-seven persons as accused:--

"(1)Aseen, (2) Subhan (3) Tundal (4) Kidiya (5) Alikha (6) Hameed (7) Dunda @ Dhammali (8) Kamal Khan (9) Azad Khan (10) Fajju (11) Laad Khan (12) Sarjeet (13) Shahjad (14) Umardeen (15) Iliyas (16) Samaydeen (17) Asudeen (18) Jumma (19) Milli @ Madarbax (20) Dalla (21) Amru (22) Maujbi (23) Bassi (24) Kaiyam (25) Peerbax (26) Ayub (27) Nijja." 3. Out of above twenty-seven persons, investigation was kept pending against seven persons, namely Tundal, Kidiya, Dunda @ Dhammali, Jumma Khan, Fajju, Amru, Nijja, under Section 173(8) Cr.P.C., as they could not be arrested by the Investigating Agency.

17 persons were sent for trial. Out of the said 17 persons, five accused, namely Ali Khan, Kamal Khan, Hamid Khan, Subhan Khan and Aasin Khan, were convicted by the trial court by impugned judgment dated 4.8.2005, for the offence under Sections 148, 302/149, 325/149, 323/149 and 341 IPC. By a separate order of even date, they were sentence as under:--

"u/s. 148 IPC - to undergo three years'' R.I.

u/s. 302/149 IPC - to undergo life imprisonment and to pay a fine of Rs. 5,000/-.

u/s. 325/149 IPC - to undergo two years'' R.I and to pay a fine of Rs. 1,000/-.

u/s. 323/149 IPC - to undergo one year''s R.I., and to pay a fine of Rs. 5,00/-.

u/s. 341 IPC - to undergo one month''s S.I."

Aggrieved against the conviction and sentence, the aforementioned five accused persons, namely Ali Khan, Kamal Khan, Hamid Khan, Subhan Khan and Aasin Khan, have filed D.B. Criminal Appeal No. 749/2005.

The trial court acquitted twelve persons of offence under Section 302/149 IPC, namely Ayub Khan, Bhara @ Shamsher Khan, Kaiyan Khan, Ladkhan, Aasudeen Khan, Sarjeet Khan, Madarbux Khan, Umardeen Khan, Shahjad Khan, Azad Khan, Mst. Maujabi and Mst. Bassi, but convicted and sentenced them for the offences under Sections, 147, 323/149, 325/149 and 341 IPC. Out of these twelve persons, two ladies Mst. Maujabi and Mst. Bassi, were released on probation. The ten male members, convicted for the aforesaid offences, were sentenced as under:--

"u/s. 147 IPC - to undergo two years'' R.I.

u/s. 323/149 IPC - to undergo one year''s R.I., and to pay a fine of Rs. 5,00/-.

u/s. 325/149 IPC - to undergo two years'' R.I and to pay a fine of Rs. 1,000/-.

u/s. 341 IPC - to undergo one month''s S.I."

Aggrieved against their conviction and sentence, the above ten persons namely Ayub Khan, Bhara @ Shamsher Khan, Kaiyan Khan, Ladkhan, Aasudeen Khan, Sarjeet Khan, Madarbux Khan, Umardeen Khan, Shahjad Khan, Azad Khan, preferred S.B. Criminal Appeal No. 729/2005.

Aggrieved against the acquittal of all the seventeen accused, for various offences, including for offence of murder, the State of Rajasthan has preferred D.B. Criminal Appeal No. 611/2014 and arrayed following persons as respondents:--

"(1) Ayub Khan (2) Bhara @ Shamsher Khan (3) Kaiyan Khan (4) Ladkhan (5) Aasudeen Khan (6) Sarjeet Khan (7) Madarbux Khan (8) Umardeen Khan (9) Shahjad Khan (10) Azad Khan (11) Mst. Maujabi (12) Mst. Bassi." 9. It is to be noted that two of accused persons, namely Madarbax Khan @ Milli s/o Chandrabhan and Umardeen Khan s/o Sher Khan, died during the pendency of the appeal, and a co-ordinate Bench, on 30.4.2014, deleted their names from the array of respondents, holding that the appeal preferred by them and the appeal filed against them shall abate.

To appreciate the entire conspectus of the case, it will be necessary for us to reproduce true translation of the written complaint (Exhibit-P/1) lodged by Lallu (P.W. 1) as under:--

"To,

SHO, Police Station M.I.A., Alwar Subject: Lodging of the report.

Sir,

Today, on 13.12.2003, at about 11:00 AM, I and my brother''s son Gopal, Hari Singh and my son Dattari, were irrigating our field with engine. At that time, Kaiyam, Ayub s/o Kidiya, Asudeen, Sarjeet, Bhera and Peerbux, came armed with lathis. Immediately on coming, they gave abuses and said that they will not allow Gurjars to reside in the village, as even being restrained, they have not given votes to Congress. Saying so, Asudeen started beating Gopal with a lathi. We all raised noise to save him and ran towards village and we reached in the field of Totaram Jatav. Hearing our noise, Buddhi, Hari Singh, Nandram, Ram Sharan, Gopal, Sri Ram, Roshan, Nihal Singh, Dharmpal, Ramdei etc came to save us. Meanwhile, in the field of Totaram accused, namely (1) Aseen (2) Subhan (3) Tundal (4) Kidiya (5) Ali Khan (6) Hameed (7) Dunda @ Dhammali (8) Kamal Khan armed with guns, (9) Azad Khan (10) Fajju armed with Farisi, (11) Laad Khan (12) Sarjeet (13) Shahjad (14) Umardeen (15) Iliyas (16) Samaydeen (17) Asudeen (18) Jumma (19) Milli @ Madarbux (20) Dalla (21) Amru (22) Maujabi w/o Ali Khan (23) Bassi w/o Peerbux (24) Kaiyam (25) Peerbux (26) Ayub (27) Nijja, came armed with lathis. They encircled us. Dunda @ Dhammali and Kamal Khan continuously fired at Dattari. He died immediately at the spot. The above said persons, with common intention to cause murder had fired shots from the guns. Maujabi and Bassi caused injuries with lathis to Buddhi and Ramdei, and Hari Singh, Nandram, Gopal, Sri Ram, Roshan, Lallu, Nihal and Dharmpal were caused injuries by the accused who have been named above and others whose names are not known by lathis and Farsi. Hari Singh, Nandram, Gopal, Sri Ram, Roshan, Lallu, Nihal and Dharmpal have received injuries. Aseen fired with gun and caused injuries to Ram Sharan. The above occurrence was witnessed by Pyarelal Saini, Mahendra Luhar, Ramhet, Mahipal, Narayan, Dharm Singh and others. Buddhi and Ramdei were admitted to hospital, who have suffered serious injuries. Therefore, I have come to submit the report. Strict action be taken against the accused and they be arrested.

Date: 13.12.2003

LTI Applicant Lallu s/o Sujyaram, Caste Gurjar, r/o Chiroti Pahad, Police Station M.I.A., Alwar."

Before we notice the testimony of injured witness, it will be necessary to notice the part of the testimony of Chiranji Lal (P.W. 27), SHO, Police Station, M.I.A., Alwar, who had carried out investigation of the case. This witness in the court stated that on 13.12.2003, he was posted as SHO, Police Station MIA, Alwar. He received telephonic information at 11:15 AM that in village Chiroti Pahad, a fight had taken place between Gurjars and Mevs and he should reach at the spot. After noticing the information in the Rojnamcha, he along with accompanying officers, reached the village Chiroti Pahad. Copy of the entry made in Rojnamcha was proved as Exhibit-P/72A, and the original was brought in the court as Exhibit-P/72. After informing the Senior Officers on telephone, the investigating officer reached the village, where he found that crowd had gathered near Basti of Mevs and nearby in a field near jungle, some women were standing and the dead body of Dataram was lying near Peepal tree. The said Investigating Officer took the injured Buddhi and Ramdei, and the dead body of Dataram to the Government Hospital, Alwar and left one Head Constable at the place of occurrence to guard the spot. The dead body was kept in a Mortuary for Post-Mortem, and the injured were examined.

Before averting to the statement of injured and other eyewitnesses, we shall notice the medical evidence.

Dr. Phool Singh Choudhary (P.W. 8) on 13.12.2003 examined Hari Singh s/o Arjun and as per Exhibit-P/34, he found following injuries on his person:--

"1. Abraded wound on lt. forearm in middle 1/3rd of 5cm x 1 1/2cm with red colour with wound in 1 x 1 x 1/4cm region in lat. post.

Abrasion on Lt. Forearm Post Lat. in middle 1/3 of 2 cm x 1/4cm with red colour.

Abrasion in fore head Lt side in 1 x 1cm area with swelling in 4 x 4cm area.

Abrasion on Rt forearm Post in M 1/3rd of red colour.

C/o pain in Rt ilgunial region with tenderness. No torn visible injury was found at time of examination."

This witness also examined Buddhi Devi (P.W. 16) on 13.12.2003 and as per Exhibit-P/35, he found following injuries on her person:--

"1. C/o pain with tenderness on Rt arm in lower 1/3rd with swelling in 10 x 8 cm. with redness.

C/o pain with tenderness on Rt forearm in middle part with swelling in whole region with redness.

C/o pain on abdomen. No visible injury at time of examination. Tenderness present."

This witness also examined Baney Singh on 14.12.2003 and as per Exhibit-P/36, he found following injuries on his person:--

"1. Bruise on Lt arm laterally in lateral 1/3rd of middle of size 8cm x 2cm with red-blue colour.

Abrasion on Rt fore arm post laterally in middle 1/3rd of size 4 x 1cm with red colour and scab formation."

This witness also examined Nand Ram (P.W. 9) on 13.12.2003 and as per Exhibit-P/37, he found following injuries on his person:--

"1. Abrasion Rt hand dorsally at medial side below Rt three of size 4 x 2 cm with red colour.

C/o pain in chest Lt side in upper part with tenderness."

This witness also examined Lallu (P.W. 1) on 13.12.2003 and as per Exhibit-P/38, he found following injuries on his person:--

"C/o pain back of abdomen in lower part of size 10 x 10cm with redness." This witness also examined Ramdei (P.W. 22) on 13.12.2003 and as per Exhibit-P/39, he found following injuries on her person:--

"1. Bruise on Lt side of face below eye of size 4 x 4cm with red colour and blue Lt eye.

Diffuse swelling on head Lt side at fronto parietal region.

Diffuse swelling on head Rt side at fronto parietal region.

C/o pain on chest Lt side in Ant aspect.

C/o pain on chest Lt side in Post aspect."

This witness also examined Dharmpal (P.W. 12) on 13.12.2003 and as per Exhibit-P/40, he found following injuries on his person:--

"C/o pain on Epigastric region with tenderness." This witness also examined Nihal Singh on 13.12.2003 and as per Exhibit-P/41, he found following injuries on his person:--

"Bruise on Rt palm in middle part of size 4 x 2cm with red colour." This witness also examined Sri Ram (P.W. 14) on 13.12.2003 and as per Exhibit-P/42, he found following injuries on his person:--

"1. Diffuse swelling on Lt thigh anterio lat. in middle 1/3rd of size 10 x 8cm with red colour.

Abrasion on Lt knee Jt. Ant. in upper part of size 1/2 x 1/2cm with red colour."

This witness also examined Roshan (P.W. 2) on 13.12.2003 and as per Exhibit-P/43, he found following injuries on his person:--

"Abrasion on Lt side chest Lat. in middle 1/3rd of size 1 x 1cm with red colour." This witness also examined Ram Sharan (P.W. 20) on 13.12.2003 and as per Exhibit-P/44, he found following injuries on his person:--

"1. Punctured lacerated wound on Lt thumb at dorsal aspect of size 1/2 x 1/2cm.

Lacerated wound on Lt thumb at medial aspect of size 1/2 x 1/4cm with clotted blood (wound of exit).

Diffuse swelling on Lt leg laterally in upper 1/3rd with tenderness of size 8 x 6cm with red colour.

C/o pain with tenderness on Lt shoulder of size 3 x 3 cm with red colour Rt forearm.

Bruise on Rt forearm medially in upper 1/3rd of size 6 x 2 cm with red colour."

This witness also examined Gopal on 13.12.2003 and as per Exhibit-P/45, he found following injuries on his person:--

"1. Diffuse swelling on Rt arm Lat in middle part of size 6 x 6cm with red colour.

Diffuse swelling on Rt thigh Ant. Lat. of size 10 x 10cm with red colour."

On 13.12.2003, at about 4:45 PM, Dr. Phool Singh Choudhary (P.W. 8) had conducted autopsy on the dead body of Dataram s/o Lallu Ram Gurjar, aged 26 years (Exhibit-P/47) and found the following injuries on his person:--

"M. Punctured lacerated wound present on the following body parts C blackening of the surroundings of size 1/2 x 1/2cm to 1/4 x 1/4cm of the fire arm injury.-

(i) Upper part of nose Lt side Lat to eye.

(ii) Rt side of nose in middle part.

(iii) On Rt side face at places.

(iv) On Lt side face at places.

(v) On Lips both upper and lower at places.

(vi) On chin at places.

(vii) On neck in Ant. and both Lat. as part in whole region.

(viii) On chest Ant. on both sides in upper 1/3rd as part whole at places.

(ix) On Lt. Axilla Ant. aspect.

(x) On Lt eye brow in middle part.

(xi) Lt ear and Pinna at places.

Remarks by Medical Officer-

Black soot staining present on Lt cheek of size 4 x 3 cm and in the Lt side of Maxillary region of size 6 x 1cm.

The dry blood present at the wounds.

Total number of pellets wound marks are 120 in No.

They are present in 37 x 40cm, area on face total No. are 15 on Neck 35 and on chest 70 No. of pellets fire arm injuries are visible.

On dissection of chest there is sub but staining of tissues at the site of wounds. Muscles are injured below the wound sites. There is wound present on lung tissues on both sides in both upper lobes of size 1/4 x 1/4cm upto 1 to 2cm in depth. The wounds on Lt side are 8 and Rt. Side are 10 in No.

The Lt. Coroted artery is injured from Ant. Aspect in upper part of size 1/4 x 1/4cm C full hau thickness. Blood is present in the thoracic cavity about 1500 ml. on both sides. The Rt Ext caroted artery is also injured in lower part ant aspect of size 1/4 x 1/4cm full thickness.

Four pellets are taken out from the neck region. Other pallets unlieded in muscles and other tissues which could not be traced out. Pallets put in torn sealed and handed over to police.

Old injuries of abrasion mentioned in MLR No. 2086 Dt. 12-12-03 on chest in post aspect."

As per the opinion of the doctor, cause of death was shock due to fire arm injury, which was sufficient to cause death in the ordinary course of nature and all the injuries were ante mortem in nature.

It will be pertinent to note that the deceased Dataram had received fire arm injuries, whereas, only one injured, Ram Sharan (P.W. 20) had received one injury on thumb with fire arm. The rest of the injured had received injuries with blunt weapons.

Lallu (P.W. 1) in the court stated that on the day of occurrence, at about 11:00 AM, he along with Dataram, Hari Singh and Gopa were irrigating his field by engine. When Bahra, Asudeen, Kaiyam, Peerbux, Sarjeet, Nadeem came armed with lathis, they said that since Gurjars had not voted for the Congress Party, as per their wishes, they should be taught a lesson. Thereafter, they gave beating to Gopal, upon which he, Gopal, Dataram and Hari Singh ran towards the village. They reached the field of Totaram Jatav. Then about 27-28 persons encircled Dataram. Lallu (P.W. 1) named Aseen, Tundal, Subhan, Ali Khan, Kamal Khan, Hidya, Hameed as one who were armed with guns. Milli, Azad, Shahjad, Dalla, Iliyas, Sarjeet, Amardeen, Samaydeen, Ayub, Bahra, Laad Khan, Jumma, Asudeen were armed with lathis and Farsi. This witness stated that Aseen, Tundal, Ali Khan, Kamal Khan, Dhammali, Hameed, Hidiya had fired with gun at Dataram, who received pellet injuries on the face, neck and chest. Dataram died on the spot. Maujabi and Bassi caused injuries to Buddhi and Ramdei. Ram Sharan also received injuries. As to who caused him injuries, Lallu (P.W. 1) stated that only he can tell who caused him injuries and where. Hari Singh, Nandram, Sirya, Gopal and Banney Singh also received injuries caused by lathis.

Almost all injured witnesses had broadly reiterated as to what was stated by the complainant Lallu (P.W. 1).

The prosecution in all examined 28 witnesses and placed reliance upon total 94 documents.

The trial court in its judgment held that occurrence had taken place in two parts. In the first part, Gopal and Baney Singh were injured . They both have not stepped into the witness box. The trial court in Para 36 of the judgment held that the object of the unlawful assembly, keeping political grudge was to give beating and the accused who were armed with fire arms were only responsible for the murder and thus, acquitted those accused, who were armed with only lathis and Farsi of offence under Section 302/34 IPC. We shall reproduce Para 36 of the impugned judgment as under:--

The trial court having arrived at the above finding, convicted Ali Khan, Kamal Khan, Hameed Khan, Subhan Khan and Aseen Khan, who were armed with guns for the offence punishable under Section 302 IPC and held them responsible for causing of murder.

The learned Public Prosecutor appearing on behalf of the State of Rajasthan, which has preferred an appeal against acquittal, has urged that the common object of the assembly was to cause murder. Thus, all the accused should have been convicted with the aid of Section 149 IPC.

Mr. Suresh Sahani, the learned counsel appearing for the appellants, has submitted that it is admitted by the Investigating Officer that in the occurrence, Ali Khan, Mst. Maujabi and Mst. Bassi had also received injuries. Mr. Suresh Sahani has referred to following portion of the cross-examination of the Investigating Officer Chiranji Lal (P.W. 27), wherein he stated as under:--

"In the Rojnamcha, in the entry (Exhibit-P/74A) I have mentioned that Ramdei and Buddhi were medico-legally examined. ''It is correct that on that day I got Ali Khan, Maujabi and Bassi medico-legally examined and they themselves had come to the hospital. It is correct that I have told Ali Khan, Maujabi and Bassi to come to the Police Station on the next day for investigation. I had said to Ali Khan, Maujabi and Bassi when they informed me that a quarrel has taken place between them and Dataram and they also be medico-legally examined."

[Portion translated into English from Hindi.]

The learned counsel for the appellants stated that in the present case, by not explaining injuries on the person of Ali Khan, Maujabi and Bassi, the prosecution has suppressed the origin and genesis of the occurrence. It is further contended that the Investigating Agency has withheld the medico-legal report of the these three injured from the court. Therefore, we should hold that the complainant party were aggressor.

Mst. Maujabi, in her statement under Section 313 Cr.P.C., stated that they had lodged a report against Dataram for having committed trespass and causing damage to their fields. Dattari, feeling annoyed came to their field along with 30-40 persons and caused injuries to the women. Ali Khan and Dattari grappled with each other. Nandlal and Surajbhan from side of complainant fired shots, due to which Ali Khan Dattari received gun shot injury.

To similar effect is the statement made by Bassi.

Ali Khan in the court stated that goats of Dattari entered into their field. They had lodged a report to the effect that Dattari by leaving goats in their field had damaged their crop. Due to this grudge, Dattari, along with 36-37 persons armed with lathis, Farsi and guns, entered into their field and caused injuries to ladies. When he, his wife Maujabi and Bassi came forward to save the children, he grappled with Dataram. Due to which, Nandlal and Surajbhan fired shots. Shot fired by Surajbhan had hit Ali Khan and Dattari. Maujabi and Bassi also received injuries. Dattari had died due to injuries received by Surajbhan, He is innocent and has been falsely implicated.

At the first instance, the arguments raised by Mr. Sahani, learned counsel appearing on behalf of the appellants in reference to the statement of three accused made under Section 313 Cr.P.C., looks attractive. But, there is no answer to the question as to why medico-legal reports regarding injuries received by Ali Khan, Mst. Maujabi and Mst. Bassi were not proved on record. It was equally the duty of the defence to bring on record the injuries suffered by these three accused. It is true that the accused have to probabalize their defence and the prosecution has to stand on its own legs. At the same time, one who crave for an exception has to prove its case to the hilt. A little inquiry of the court leads to the conclusion that the accused have purposely and intentionally not proved and brought the medico-legal reports on record, as the injuries received by the accused were not of serious nature, which ought to have been explained by the prosecution.

We have examined remand papers. An application on 5.1.2004 was filed by Superintendent, District Jail, Alwar, before Medical Jurists, Government Hospital, Alwar, that in compliance of order dated 3.1.2004, passed by the Judicial Magistrate, First Class, Alwar, accused Ali Khan be examined. It is to be noted that Dr. Phool Singh Choudhary (P.W. 8) had found only complaint of pain on the right arm of accused Ali Khan and had advised X-ray examination of Ali Khan. He has only prescribed the tablets of Bruffin and application of ointment. After Ali Khan was medico-legally examined, Superintendent of Jail, Alwar, vide Application No. /2004/109 dated 10.2.2004, had submitted the report to the concerned Magistrate that accused has been medico-legally examined. Thus, it is apparent that the defence only wants to take advantage of admission made by the Investigating Officer, Chiranji Lal (P.W. 27) during cross-examination without fortifying the same by bringing on record medico-legal reports. Therefore, it cannot be said that injuries received by three accused namely, Ali Khan, Mst. Maujabi and Mst. Bassi were of such nature that they ought to be explained by the prosecution. Even, the accused Ali Khan in statement has stated that he had grappled with the deceased Dattari. It is nowhere stated in the statement under Section 313 Cr.P.C., as to which accused has caused injury to the ladies or to Ali Khan and if so, by what weapon. Thus, it cannot be said that the prosecution has suppressed the origin and genesis of the occurrence.

It has been held by the Hon''ble Apex Court in the case of Lakshmi Singh and Others Vs. State of Bihar, that where the injuries sustained by the accused are minor and superficial, or where the evidence is so clear and cogent, consistent and credit-worthy, the prosecution need not explain the injuries.

Mr. Sahani, the learned counsel for the appellants has further submitted that it has come in the statement of Chiranji Lal (P.W. 27) that on receipt of information, that a fight had ensued in the village, he had gone to the spot. He had taken the dead body to the hospital along with the two injured ladies. Thus, it is stated that after the entire investigation was first carried, thereafter, the FIR was registered. It is further contended by Mr. Sahani that in the present case, the occurrence had taken place on 13.12.2003, at 11:00 AM, whereas, the FIR was recorded on the same day at 1:00 PM. But, the special report had reached to Illaqa Magistrate on 15.12.2003 at 11:00 AM. Thus, it is contended that delay of two day in reaching of the special report should be taken into consideration to hold that there is a large scale over-implication of the accused. It is contended that for a single fire arm injury on the person of the deceased, Dattari, and one injury on the thumb of Ram Sharan (P.W. 20), eight persons, who were armed with guns have been named as accused.

We would have given due credence to this argument, had it not been the case of all the witnesses that Dattari, in order to save himself ran away from his field and after covering a distance had reached in the field of Totaram Jatav, where fire arm injuries were received by him. It is case of prosecution that all eight accused persons armed with fire arm followed the deceased, who was running away, they encircled him and the accused had fired indiscriminately. A perusal of injuries of Dattari reveals that 120 pellets and 4 pellets were embedded in the injuries. Thus, it is not a case of causing injury by single shot. There was presence of blackening and black soot around the injuries. Thus, a shot was fired from near distance and wide spread dispersion also suggest that more than one shot had hit the deceased. Therefore, in the present case, we cannot say that there is over-implication of the accused. When eight persons are engaged in indiscriminate firing, nobody can say, as to shot fired by which accused had hit the deceased. All eight accused armed with lethal weapon had shared common intention. Thus, out of eight accused named, five accused namely Ali Khan, Kamal Khan, Hameed Khan, Subhan Khan and Aseen Khan who were sent for trial and have been rightly convicted for the murder with aid of Section 149 IPC.

Delay in reaching of the special report in each and every case, per se, is not fatal to the prosecution.

Recently, in Brahm Swaroop and Another Vs. State of U.P., , the Lordship of Hon''ble Supreme Court has held as under:

"Delay in sending report to the Magistrate

Undoubtedly, there is delay of 5 days in sending the special report. This Court in Badam Singh v. State of M.P., while considering this issue held that where the investigating officer categorically stated that he was not in a position to give any explanation for the delay in sending the special report, it may be fatal to the prosecution''s case.

However, a larger Bench of three Judges in Balram Singh v. State of Punjab, held as under:

"10.... we notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the Jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6-5-1990, we do not think that the delay thereafter in communicating it to the Jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the Jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case." 16. In State of Rajasthan v. Teja Singh, this Court held that the receipt of the special report by the Magistrate is a question of fact and the prosecution may explain the delay in sending the special report. However, the explanation so furnished by the prosecution must be convincing and acceptable. The same view has been reiterated in Ramesh Baburao Devaskar v. State of Maharashtra.

In Sarvesh Narain Shukla v. Daroga Singh, this Court held that delay in forwarding the special report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR.

In Aqeel Ahmad, this Court held that the forwarding of the report to the Magistrate is indispensable and absolute and it must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution''s case and the introduction of a distorted version by deliberations and consultation and to enable the Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the investigating officer that would not affect the credibility of the prosecution''s witnesses."

The delay in reaching of special report will not exclude, presence of accused who as per FIR were armed with guns. The trial court has rightly held that the accused who were armed with lathis only intended to cause grievous injuries and the accused who were armed with lethal weapon had exceeded their common object of the assembly and were responsible for causing murder of the deceased.

In view of the consistent evidence of all the injured eyewitnesses, we are of the view that it is not a case of free fight.

Mr. Sahani, the learned counsel for the appellants has referred to the statement made by Roshan (P.W. 2), wherein he stated that "it is correct that when I came running to the spot, on one side Mevs were standing and on other side Gurjars were standing." Taking this line of the cross-examination of Roshan (P.W. 2), Mr. Sahani has canvassed before us that it is a case of free fight and Section 149 is not attracted.

We are unable to accept this argument. It is not the case, where the parties fully armed with weapons clashed with each other and caused injuries and resultantly, the injuries were caused to both the sides. It is also not a case of sudden fight to invoke Exception 4 to Section 300 IPC. We cannot ignore the testimonies of witnesses that for a considerable distance, the accused armed with fire arm had followed the deceased. Thus, it is neither a case of free fight, nor of sudden fight, as the accused have taken undue advantage and had caused harm more than what was required. Furthermore, as already held by us, injuries on person of accused were not of serious nature.

Mr. Sahani, has submitted that in the present case, disclosure statement made by the accused leading to the recovery of weapon i.e. guns, have not been witnessed by independent persons and to fortify this argument, reliance has been place upon the case of Harjit Singh and Others Vs. State of Punjab, .

To us, in the present case, recovery of weapon is only a corroborative piece of evidence. However, in the present case, the witnesses have stated in categoric terms that the accused were firing indiscriminate shots and the same is corroborated by medical evidence. We cannot hold that guns were not used merely because disclosure statements were not witnessed by independent witnesses.

Consequently, we find no merit in the D.B. Criminal Appeal No. 749/2005, preferred by Ali Khan and others, as all the five accused appellants named therein, had followed the deceased and fired indiscriminate shots and shots fired by them had hit the deceased. Therefore, they have rightly been convicted for the offence under Section 302/149 IPC and have been sentenced by the trial court.

We also found no infirmity in the finding returned by the trial court that only the accused who were armed with fire arm only intended to cause murder. We have also given our thoughtful consideration to the arguments advanced by the learned Public Prosecutor for the State of Rajasthan.

43 in our view, the trial court has rightly divided the occurrence into two parts, holding that due to political grudge, except accused armed with guns, other accused intended to give beating to the persons of Gurjars community, to assert their political supremacy.

We have also noticed that most of the twelve injured persons in the occurrence have received simple injuries caused with blunt weapon. Only Buddhi had received grievous injury caused with blunt weapon i.e. fracture of ulna of right fore-arm. This injury is also attributed specifically to Mst. Maujabi and Mst. Bassi. Thus, so far as the appellants to S.B. Criminal Appeal No. 729/2005 are concerned, they have caused simple injuries with blunt weapon in the occurrence. Thus, from the harm caused by them, it is also apparent that their intention was only to give beating and only those accused who were armed with lethal weapon like guns are responsible for causing murder of Dattari. Therefore, we will not disturb the finding given by the trial court in appeal preferred by the State of Rajasthan. For, it is consistently held by the Hon''ble Apex Court that if two view are possible, and the view taken by the trial court is not perverse, the Appellate Court should not disturb the same.

So far, S.B. Criminal Appeal No. 729/2005 preferred by Ayub Khan and others is concerned, out of ten appellants, two appellants namely Madarbax Khan @ Milli s/o Chandrabhan and Umardeen Khan s/o Sher Khan have already expired. Considering that occurrence had taken place in the year 2005, and the appellants in S.B. Criminal Appeal No. 729/2005 are in the corridors of the court for the last about more than eleven years, we are of the view that sending the appellants behind the bars will serve no useful purpose. Therefore, we extend the same benefit, which was extended by the trial court to Mst. Maujabi and Mst. Bassi being ladies and order that the appellants to S.B. Criminal Appeal No. 729/2005 shall also be released on probation on the same terms and conditions, upon which two co-accused namely Mst. Maujabi and Mst. Bassi were released on probation by the trial court.

As a result of above discussion, D.B. Criminal Appeal No. 749/2005 is dismissed. Similarly, D.B. Criminal Appeal No. 611/2014, preferred by the State of Rajasthan is also dismissed.

So far, S.B. Criminal Appeal No. 729/2005 is concerned, we uphold the conviction of the appellants as awarded by the trial court. However, instead of sending them behind bars after eleven years, we order that they shall be released on probation on the same terms and conditions, as their co-accused namely Mst. Maujabi and Mst. Bassi were released on probation by the trial court.