Govind Mathur, J.
1. By judgment dated 30.10.2004 learned Additional Sessions Judge (Fast Track), Balotara, Camp Barmer convicted the accused appellant for the offences punishable under Sections 148, 302, 449, 324, 323 Indian Penal Code and Section 4/25 of Indian Arms Act. The accused was sentenced for each of the offences as under:
148 IPC: rigorous imprisonment for one year and a fine of Rs. 1000/-, in default of the payment of fine to further undergo imprisonment for three months;
323 IPC: rigorous imprisonment for six months and a fine of Rs. 500/-, in default of the payment of fine to further undergo imprisonment for one month;
324 IPC: rigorous imprisonment for one year and a fine of Rs. 1000/-, in default of the payment of fine to further undergo imprisonment for three months;
449 IPC: rigorous imprisonment for three years and a fine of Rs. 1000/-, in default of the payment of fine to further undergo imprisonment for three months;
302 IPC: imprisonment for life and a fine of Rs. 5000/-, in default of the payment of fine to further undergo imprisonment for six months; and
4/25 Arms Act: one year's rigorous imprisonment and a fine of Rs. 1000/-, in default of the payment of fine to further undergo three months imprisonment.
2. All the sentences were ordered to run concurrently.
3. The facts of the case are that accused Balwant Singh, the present appellant, alongwith Swarup Singh, Bhur Singh, Jograj Singh, Sawai Singh and Panne Singh came to hamlet of Khemaram situated in village Oondkhan, district Barmer at about 06:30 PM on 26.2.1989. Accused Balwant Singh was armed with a sword, Swarup Singh was carrying a gun, Bhur Singh was armed with an axe, while remaining three other persons were armed with 'dharias'. All these persons came to hamlet of Khemaram to murder him in order to take a revenge of the murder of Karan Singh which was said to be committed by Khemaram. At that time Khemaram, his mother Smt. Parvati, wife Smt. Gavari, Chandu wife of Bheraram, Khemaram's sons Prakash and Harish, daughters Kamla and Nenu were also present. Immediately on reaching to the dhani, Swarup Singh made an open fire by gun, but that did not hit anyone. Khemaram, who was standing in the hamlet, being scared ran and closed himself in a room situated at first floor. He also bolted the room from inside. The ladies present at the spot requested the attacking party not to kill Khemaram, however, accused inflicted injuries to these ladies and also to the children present. They were saying that Khemaram shall not be left alive. The attacking party including accused Balwant Singh then went upstairs where Swarup Singh made a fire at the door to unbolt the same. Balwant Singh then entered in room and by a sword blow separated the head of Khemaram from the neck and took that in his hand. Balwant Singh came out from room and moved about ten paces and threw the head by saying that this was his offering to Karan Singh, who was said to be murdered by Khemaram. The attacking party then fled from the spot. The separated head of Khemaram then was taken by Prakash, and was placed near remaining dead body.
4. Amraram son of Punaram, nephew of deceased came to the dhani in the night to whom Smt. Parvati detailed the entire incident and also disclosed name of assailants. Amraram then proceeded to Barmer and informed Jetharam about the incident. Amraram then went to Gudamalani and tendered necessary information regarding murder of Khemaram to his father. Jetharam thereafter went to Lunaram's house and therefrom he went to Sonaram's house with a request to proceed for village Oondkhan where the incident took place. The entire information then was given to the police by Jetharam on 27.2.1989 at about 07:15 AM.
5. On this information, Vishnulal, Station House Officer recorded the message Ex.D/1 in rojnamcha and initiated the investigation. After regular investigation a challan was filed against the present appellant before the competent court. The case was committed to the court of Sessions, charges were framed against co-accused persons and on denial of the same they were tried. The present appellant being absconding was not tried alongwith those co-accused persons. The present appellant was arrested subsequently and, therefore, he was tried independently. So far as co-accused are concerned, they were convicted and sentenced to life term under judgment dated 30.11.1991. An appeal (DB Cr. Appeal No. 29/1992) preferred by them before this Court came to be rejected by judgment dated 16.7.1996.
6. The prosecution supported its case against the present accused by producing 15 witnesses and 69 documents. The statements of accused as per provisions of Section 313 Cr.P.C. too were recorded with a purpose to provide him an opportunity to explain the evidence available against him. While denying all the allegations, the accused stated that he was falsely implicated in the case being nephew of Karan Singh, who was murdered by Khemaram. In defence, statements of accused himself as DW-1 and of Balwant Singh son of Pahad Singh as DW-2 were recorded.
7. The trial court looking to old age of Smt. Parvati (PW-12 in earlier trial against co-accused persons) and death of Vishnulal (PW-15 in the trial of co-accused persons) admitted their statements as evidence in present case as per the provisions of Section 299 Cr.P.C.
8. Smt. Parvati, an eye witness, stated that on the date of incident in the evening she alongwith her other family persons was sitting in the court yard of their hamlet. The accused persons came there and said that they will take revenge of the murder of Karan Singh. As per this witness, Swarup Singh was armed with a gun, Bhur Singh was armed with an axe, Balwant Singh was having a sword, while other accused persons were carrying 'dharias'. At first instance an open fire was made, then Khemaram being scared went upstairs and hide himself in the room. The ladies present requested the accused not to kill Khemaram but of no consequence. The accused persons assaulted ladies and also the children. The accused thereafter went upstairs, broke open the door of the room where Khemaram was hiding. Accused Balwant Singh then cut the head of Khemaram and brought down by carrying head in his hand. He threw that at the distance of ten paces and while doing so also stated that 'Karan Singh, we offer this head to you'.
9. PW-1 Smt. Gavari supported the prosecution case and as a matter of fact she corroborated whatever stated by PW-12 Smt. Parvati (in earlier trial).
10. PW-12 Prakash Singh also supported the prosecution case and he also made a similar statement as of Smt. Gavari and Smt. Parvati.
11. PW-3 Dr. Narendra Kumar Jugtawat conducted autopsy on the body of Khemaram and, thus, he proved the postmortem report. As per postmortem report Ex.P/41, Khemaram died because of shock and syncope caused by injury No. 1. The injury aforesaid was antemortem in nature and sufficient to cause death in ordinary course of nature. In view of the medical evidence, death of Khemaram was homicidal one.
12. The trial court, as already stated above, accepted the statements given by Shri Vishnulal as PW15 in the first trial i.e. of co-accused persons, in the present trial too. Shri Vishnulal narrated all the steps taken during the course of investigation including the recovery made and remission of recovered articles for their chemical and serological examination.
13. Having considered the evidence available on record, learned trial court held the accused appellant guilty, thus, convicted and sentenced accordingly.
14. In the instant appeal, learned Counsel for the appellant as a matter of fact tried to re-agitate most of the arguments already considered by this Court in DB Cr. Appeal No. 29/1992. As per counsel for the appellant the first information report was registered at a belated stage and that is after due deliberation, consultation and discussion. It is asserted that the first information report as a matter of fact should be the rojnamcha entry made at the police station in pursuant to which PW-15 Vishnulal proceeded towards the place of incident. This issue was considered by the Court in DB Cr. Appeal No. 29/1992 at length and it was held that the investigation was started only after recording statements of Parvati and, therefore, that could alone be treated as first information report. The Division Bench specifically held that rojnamcha entry looking to all the facts of the case was rightly not treated as first information report by the trial court.
15. The second question raised by counsel for the appellant is that the Investigating Officer Vishnulal (PW-15 in the trial of co-accused persons) before recording statements, that was ultimately treated as first information report, prepared site plan, inquest report, panchnama etc. and also made the recoveries. This creates doubt about objectivity of the investigation. This issue too was considered by this Court in DB Cr. Appeal No. 29/1992 and it was held that investigation started only after recording parcha bayan which was treated as first information report by the trial court.
16. Learned Counsel for the appellant also stressed that the accused was falsely implicated in the case on account of inimical relations and as a matter of fact he was not even known to the witnesses who deposed against them. We do not find any merit in the argument advanced. Smt. Parvati, PW-1 Smt. Gavari and PW-12 Prakash categorically stated that the accused entered the house and first open fired and when Khemaram went upstairs and hide himself in the room the accused went to the room where Khemaram was hiding, the room was unbolted and by a sword blow the present accused Balwant Singh separated head of deceased from neck. The names of these accused were categorically disclosed by PW-12 Smt. Parvati in first information report itself. The accused persons were quite known to the complainant party and they were also identified by the witnesses named above. The argument relating to false implication is also having no force, rather it supplies a motive to the accused party to commit murder of Khemaram.
17. Having considered all the arguments advanced and the evidence available on record, we do not find any wrong in the conviction record and sentence awarded by the trial court. Accordingly, the judgment dated 30.10.2004 passed by learned Additional Sessions Judge (Fast Track), Balotara, Camp Barmer in Sessions Case No. 127/2002 is affirmed. The appeal is dismissed.