SARDARA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellants are convicted and sentenced as under (A) appellant Sardara, son of Harman (i) for S.302 IPC life imprisonment plus fine Rs.2,000/-, in default - six months rigorous imprisonment, (ii) S.394 IPC seven years rigorous imprisonment plus fine Rs.1,000/-, in default three months rigorous imprisonment, (iii) S. 25 Arms Act three years rigorous imprisonment plus fine Rs.500/-, in default two months' rigorous imprisonment, (B) appellant Chhotu @ Chhotiya, son of Prabhulal, (i) for S.302 read with S.34 IPC life imprisonment plus fine Rs.2,000/-, in default six months rigorous imprisonment, (ii) S.394 IPC seven years' rigorous imprisonment plus fine Rs.1,000/-, in default three months rigorous imprisonment, (C) appellant Harman @ Urariya, son of Uda @ Udaram, (i) S. 302 read with S.34 IPC - life imprisonment plus Rs.2,000/- fine, (ii) S.25 Arms Act three years rigorous imprisonment plus Rs.500/- - in default two months rigorous imprisonment. The appeal challenges above convictions and sentences.

(2.) Alleged incident and sequence of events, according to prosecution, are that on 27.08.2002, at about 4.30 afternoon, someone not disclosing his name, informed on phone to police station, Jaitaran that at "gochar" (pasture) land of village Talkiya, someone from bushes, fired and due to bullet injury, a person is dead. SHO PW 5, making entry at roznamcha entry No.1166, proceeded to place of occurrence, where at 6.30 p.m., Nemaram PW 12 told and informed him that he, Ratna Ram, Pancha Ram, Sohan and Chimna for grazing their cattle, starting ten days ago from village, on that day 27.8.02 arrived at this pasture land of village Talkiya, where three Harman, his son Sardara and son-in-law Chhotiya with guns in their hands, came from behind bushes and told him as to why herd at "gochar", so Nemaram PW 12 replied of taking away herd but these persons not conceding and threatening of not letting take herd, demanded money for liquor and when PW 12 declined, Sardara, snatched Rs.500/- from his pocket and all pushed him down, so PW 5, shoutingly called and runningly came there Ratan Lal and Sohan (PW 4) who, coming to know of the incident, when objected for it appellant Chhotiya slapped Ratan Lal and when PW 5 and Sohan intervened, all three gunned towards them, and Sardara fired on Ratna Ram who sustaining injury and pellets at chest, fell and died. Then PW 12, for protecting themselves, gave a blow of lathi at hand of Chhotiya, so his gun fell down which lying there and these persons went away, on shouts, Paras (PW 13) also came to whom they asked to go police station. PW 5, recording this statement of PW 12 as Ex.P4, making own endorsement, sending it with a constable to police station for registration of case, and commencing investigation (i) inspecting place of occurrence, prepared memo and site plan Ex.P5- prepared memos Ex.P7 and Ex.P8 of the state of dead body and injuries, (ii) seized and sealed there found a pair of shoes ("jooti") and "saafa" (turban), a ML gun and also a small piece of some gun preparing memo Ex.P6, (iii) collected and sealed sample of spread blood and also plain soil which was at place of occurrence. (iv) sealed, blood stained worn shirt, baniyan and dhoti of deceased. Post mortem performed by Dr. PW 1 on August 28th at 8.30 A.M. and report Ex.P1 prepared. Injuries of Nemaram examined and report Ex.P2 prepared by Doctor PW 1 in evening of 27.8.02.

(3.) Appellants Sardara and Chhotiya arrested on same day respectively at 11.00 p.m. and 11.10 p.m. and investigating officer PW 5, per disclosure and information of appellant Sardara recorded as Ex.P21, at instance of Sardara on 28.8.02, recovered from his hut-from below a camel pilan (seat used for camel ride) over which were cotton mattresses, - ML gun-of which was broken away was a small wooden portion of upper part this recovered gun seized and packet marked as "7" - prepared recovery memo and site of place are Ex.P22 and Ex.P23. Obtained information about Sardara and Harmana, of not having firearm licence and prosecution sanction Ex.P34 and 35. Appellant accused Harmana was arrested on July 31st, 03 and ML gun held by him at that time, was seized and sealed, preparing memo Ex.P36.