BABULAL & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused-petitioners are aggrieved by the order dated 17.09.2003, passed by the learned Judicial Magistrate, First Class, Laxmangarh, District Alwar, whereby the learned Magistrate while granting the benefit of Sec. 4 of the Probation of Offenders Act ('the Act', for short), had convicted the petitioners for offences under Sections 452 and 323 IPC, and also by the judgment dated 29.01.2005, passed by the Additional Sessions Judge, Laxmangarh, District Alwar, whereby the learned Judge has upheld the former order.

(2.) Briefly the facts of the case are that on 25.09.2001, Rakesh Kumar Jain (PW-2) submitted a written report at Police Station Govindgarh regarding an incident that had occurred on the same date at 9 O'clock in the morning. In the report, he alleged that while he was in his house, his neighbours, the accused-petitioners, entered his house with farsies and lathies. He further claimed that he was pulled out of his house and thereafter Laxmi Narayan had hit him over the head and on his hand with a farsi. He further alleged that other co-accused persons also assaulted him with lathies and with fists and blows. He further claimed that the accused-persons took away his gold chain and his wrist watch. According to him, those who rushed to his rescue were also assaulted by the petitioners. On the basis of the said written report, the police chalked out a formal FIR, FIR No.105/2001 for offences under Sections 451, 323, 341 and 379 IPC. In order to buttress its case, the prosecution examined seven witnesses and submitted few documents. In defence, the petitioners did not examine any witness. After going through the oral and documentary evidence, vide judgment dated 17.01.2003, the learned trial court convicted the petitioners for offences under Sections 542, 323 and 324/34 Penal Code and also gave them the benefit of Sec. 4 of the Act. Aggrieved by the said order, the petitioners filed an appeal before the learned Judge. However, vide judgment dated 29.01.2005, the learned Judge confirmed the order dated 17.01.2003. Hence, this petition before this Court.

(3.) Mr. S.S. Sunda, the learned counsel for the petitioners, has vehemently contended that as there is an evidence that the police was verbally informed about the incident, therefore, the verbal information should have been treated as a FIR. Secondly, there are certain contradictions in the testimonies of the witnesses. Therefore, the conviction is unsustainable. Thirdly, both the trial court as well as the appellate court have not appreciated the evidence in proper manner.