SUBHASH CHANDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by fourteen accused assailing judgment of the learned Additional Sessions Judge (Fast Track) Alwar dated 24/2/2003 passed in Sessions Case No.40/2001 (15/1996) whereby, accused-appellant No.1-Subhash Chandra was convicted for offences u/Ss.148, 302 and 324/149 IPC whereas, rest accused-appellants were convicted for offences u/Ss.148, 302/149 and 324/149 IPC. Accused-appellant No.1-Subhash Chandra was sentenced to imprisonment for life for offence u/S.302 IPC simplicitor and additionally with a fine of Rs.5,000/-, in default of payment whereof, he was awarded sentence to further undergo rigorous imprisonment of one year. Remaining accused appellants were sentenced to imprisonment for life with a fine of Rs.2,000/- and in default whereof, they were awarded sentence to further undergo rigorous imprisonment for one year for offence u/S.302/149 IPC. Each of the accused appellants was sentenced to rigorous imprisonment of three years with fine of Rs.500/- for offence u/Ss.148 and 324/149 IPC and in default of payment thereof, additional sentence of three months rigorous imprisonment was awarded to each of them. All the sentences were ordered to run concurrently.

(2.) THE investigation in the present case was initiated on the basis of the written report (Exb.P.9) submitted by complainant Chunnilal to S.H.O. Police Station Ramgarh dated 12/11/1995. It was alleged therein that when Lal Singh S/o Panna Lal started constructing a shop, certain persons objected to raising of the construction. Accused after pre-planning came there armed with guns and country made pistols and attacked him and the entire Mali community of village Malpura from different directions. Fourteen of them were on the roof of the old school building namely; Subhash Chandra, Kundan Lal, Jitendra Kumar, Madan Lal, Kewal Kumar, Komal Kumar, Rajendra Kumar @ Billu, Pawan Kumar, Purshottam, Girraj Prasad, Mukesh, Radhey, Mulakhraj and Baldev Prasad @ Kalu. Remaining fourteen climbed the roofs of Mulakhraj, Krishna Lal and Somnath. THEy were Subhash Chandra, Kundan Lal, Jitendra Kumar, Kewal Kumar, Madanlal, Komal Kumar, Rajendra Prasad @ Billu, Pawan Kumar, Purshottam, Girraj Prasad, Mukesh Kumar, Radhey, Mulakhraj and Baldev Prasad @ Kalu. Accused Subhash Chandra exhorted all the accused that a lesson be taught to these malis. Subhash Chandra opened fire, which hit Tulsi Saini near his eyes. Tulsi died on the spot. THEreafter, remaining accused started firing indiscriminately at the members of the complainant party. Firing went on for about 2 to 2" hours. THEy also pelted stones. Thirteen persons namely; Hajari, Chotu, Lal Singh, Phool Singh, Jamna, Radha, Moti, Sadhu Ram, Bhukiya, Ratan Lal, Omichand, Madanlal and Gurudutt Singh received injuries. THEy were all taken to hospital. Mohan Lal Saini (PW10), Ramdayal (PW7), Laxminarayan (PW6) and Khemchand (PW12) witnessed the incident.

(3.) SHRI S.R. Bajwa, learned senior counsel argued that three empty cartridges were recovered from place 'F' as per the site plan. It is also alleged that firing took place from place 'T' to place 'S'. Regarding two recovery memos i.e. Exb.P5 and Exb.P6, it is submitted that PW4 Dr.Amar Singh Rathore has opined in the postmortem report that metallic piece of bullet was recovered from the body of the deceased, which was handed over to the police personnel which fact he has also reiterated in the statement given before the court but that piece of metal has not been sent to the forensic science laboratory, which was essential to connect the bullet with the fire arm. Even otherwise, a bullet can be fired only from a rifle whereas, recovery of the fire arm that has been made in the present case from accused No.1 Subhash Chandra is that of country made 12 bore gun, which possibly cannot fire a bullet. Similarly, another 12 bore katta has been shown to have been recovered at the instance of accused-appellant Girraj Prasad vide Exb.P117. In the same manner, recovery of one country made gun and one empty cartridge of 12 bore has been shown to have been made at the instance of accused Kewal Ram vide Exb.P.119. One country made katta has been shown to have been recovered at the instance of accused Mulakh Raj vide Exb.P79. One country made katta of 12 bore has been shown to have been recovered at the instance of accused Madanlal. It is thus clear that metallic piece, which has been found in the body of deceased Tulsi cannot be connected with any of the fire arms recovered at the instance of five of the fourteen accused appellants before this court. It therefore creates a serious doubt about the prosecution story. PW6 Laxminarayan has stated that while there were ten persons standing on chhata firing at place 'X', five persons were on the ground in lane adjacent to the said building. It is therefore possible that any one of them might have also fired therefore it is not clear as to who would be responsible for this injury, which led to death of Tulsi. Learned Senior counsel stated that at any rate, accused-Subhash Chandra cannot be convicted for offence u/S.302 IPC simplicitor because he has not been connected with the injury said to have been responsible for the death of Tulsi.