STATE OF RAJASTHAN Vs. NANA

JUDGEMENT

(1.) State of Rajasthan is in appeal against the judgment of the Division Bench of the Rajasthan High Court at Jodhpur directing acquittal of respondents Sawa and Bada while altering the conviction of accused respondent Nana from Section 302 of the Indian Penal Code, 1860 (in short the IPC) read with Section 34, IPC to Section 304 Part II read with Section 34, IPC. The learned Additional Sessions Judge No.1, Udaipur, in Sessions case No.50 of 1995 on convicting each of the respondents for offence punishable under Section 302, IPC read with Section 34, IPC sentenced to undergo imprisonment for life with a fine of Rs.100/- each. Respondent Sawa was also convicted for offence punishable under Section 324, IPC. For the first offence he was sentenced to undergo imprisonment for life and to fine of Rs.100/-, for the latter offence accused respondent Sawa was sentenced to undergo imprisonment for one year. Two other co- accused were convicted under Section 323, IPC and were released on probation.

(2.) Background facts in a nutshell are as follows : On the intervening night of 12th and 13th May, 1995 at about half past 12 the accused respondents and co-accused Sundara and Reshma were roaming in village fair where they met Deeta (hereinafter referred to as the deceased, Gena (PW-2, Narsa (PW-3, Uda (PW-5) and Soma (PW-9). There were other 10-12 persons along with the accused respondents. Sawa and Nana were armed with knives and the remaining were having stones in their hands. The accused persons came from the side of Devalchora. As soon as they were spotted by the complainant party the latter ran towards Merpur road, upon which Bada, Sundara and Reshma threw stones towards them causing injuries to Gena and Soma felling them down. Deceased and Narsa PW-3 were caught by accused persons. Accused respondents Sawa and Nana inflicted knife injuries on the back of Deeta causing bleeding. In the meantime Narsa (PW-3) fled towards the fair and was chased and injured by Bada and Sundara causing knife injuries by which he fell down bleeding. In the melee Deeta died and Narsa fell unconscious. A First Information Report (in short the FIR) to the above effect was lodged at 12.45 a.m. on 13.5.1995 by Dhanna (PW-1). After usual investigation five persons were charged and challaned in the court below for offences punishable under Sections 302/34, 302/149, 324/149, 325/149, 323/149, IPC. Upon pleading not guilty and claiming trial the prosecution examined 18 witnesses and exhibited 28 documents. In statements given under Section 313 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) accused persons denied all the incriminating evidence appearing against them and pleaded false implication. No defence evidence was produced. Thereafter the learned trial court convicted and sentenced the accused respondents as stated above.

(3.) The trial court placing reliance on the injured witnesses PWs 1 to 3 and 9 recorded conviction and sentence as noted above. Accused respondent preferred appeal before the High Court. The High Court was of the view held, accepting the plea of the respondents that in the FIR and the statement made during investigation, PW1 had stated that accused Nana and Sawa had assaulted the deceased. But during trial he stated that the attack was by Nana and Bada. To similar effect was the evidence of PWs 2 and 3.