Honble SHIV KUMAR SHARMA, J.–The appellants, six in number, were indicted before learned Additional Sessions Judge (Fast Track) No. 2, Bundi in Sessions Case No. 10/2001 for having committed murder of Sukhdev. Learned trial Judge vide judgment dated September 22, 2001 convicted and sentenced the appellants as under:-

U/s. 302/149 IPC To suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer three Months Imprisonment.

U/s. 147 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer One Month Imprisonment.

U/s. 148 IPC To suffer Two Years Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer Two Months Imprisonment.

All sentences were ordered to run concurrently., +

(2). Briefly stated the prosecution case is that Hemraj (PW. 6) submitted a written report to the SHO Police Station Dablana (Bundi) on August 2, 1997 with the averments that in the morning at about 7.30 AM on the said day he and his maternal uncle Sukhdev were going from Keshavpura to Bundi on cycles for selling the milk. Sukhdev was just ahead of him. On the route around 8.00 AM when they reached near Bindayka Doongri they found appellants hiding there with deadly weapons. All of them surrounded Sukhdev and started inflicting injuries by raising the voice to kill Sukhdev at the spot. Dayala inflicted gandasi-blow on the head of Sukhdev, as a result of which he fell down, then other persons inflicted injuries indiscriminately with sticks and gandasis. Ramlal also reached at the place of incident and he had witnessed the incident. The informant ran towards his village and narrated the incident to the wife of Sukhdev. Finding Sukhdev injured one Kishan took him to the hospital for treatment. Thereafter the informant also reached at the hospital in tractor trolley and on reaching there he found Sukhdev dead. On the basis of said report the Police Station Dablana registered a case under Sections 147, 148, 302 and 302/149 IPC and the investigation commenced. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bundi, Charges under Sections 302/149, 147 and 148 IPC were framed. The appellants denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 25 witnesses. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.

(3). The case primary hinges on the sole testimony of informant Hemraj (PW. 6) which finds corroboration form the statement of Dr. Trilok Chand Mahawar (PW. 21), who performed autopsy on the dead body of Sukhdev. Then comes the evidence of Girraj Singh (PW. 24), who conducted investigation of the case and got recovered the weapons at the instance of the appellants.

(4). Mr. Kamlakar Sharma, learned counsel for the appellants, canvassed that it was virtually impossible that while Sukhdev was given beatings his near relative Hemraj stood there as silent spectator. Conduct of Hemraj was highly unnatural and his presence at the time of incident is not established. Ram Lal (PW. 10) another eye witness examined by the prosecution did not corroborate the prosecution story. The manner in which the FIR was registered creates doubt in regard to the truthfulness of the prosecution case. The prosecution has also not been able to prove the site-plan and recovery of weapons allegedly involved in the instant case. It has not been established that the appellants had formed unlawful assembly in furtherance to commit murder of Sukhdev. Reliance is placed on Anil Phunka vs. State of Assam (1), Papaliya @ Om Prakash vs. State of Raj. (2), Sukhwant Singh vs. State of Punjab (3), Surjeet Singh vs. State of Punjab (4), Deen Dayal vs. Raj Kumar @ Raju & Ors. (5), Stat

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