DALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE five appellants - -Dalu, Prabhu, Deva, Uda and Smt. Chandi have preferred this appeal against a judgment of the Additional Sessions Judge, Chittorgarh, dated 25.4.1986, whereby the appellants were found guilty under Sections 148, 325/149 and 304 Part -II read with Section 149 of the IPC. For the offence under Section 148 of the IPC, each one has been awarded rigorous imprisonment for two years. For the offence under Section 325/149, IPC, three years' rigorous imprisonment, a fine of Rs. 100/ - and additional simple imprisonment for one month, in lieu of fine, has been awarded. Seven years' rigorous imprisonment, a fine of Rs. 100/ - and additional simple imprisonment for one month each, in lieu of fine, has been awarded for the offence punishable under Section 304 Part -II, IPC read with Section 149 of the IPC. Principal sentences have been ordered to run concurrently.

(2.) THE incident allegedly occurred on 3.10.1981, at 6 P.W., in the territory of village Chogavadi, about 5 kms. away from Police Station, Gangrar. According to the prosecution story, PW -6 Narain Singh, PW -7 Megha, PW -8 Gopi and the deceased Chatra were returning from Chittorgarh, after attending a Court case in the Court of S.D.M., Chittor, to their village Nimari Khera. Gopi and the deceased Chatra were riding on one bicycle. Narain Singh and Megha were riding on another bicycle. When they reached the place of occurrence, the five appellants were allegedly in wait and pounced upon them. Chatra and Gopi received injures. Narain Singh and Megha watched the whole incident, standing nearby. A hue and cry was raised and lot many people from village Chogavadi soon appeared on the scene. Seeing them, the five appellants took to their heels. The two injured persons, according to the prosecution story, were first carried to Gangrar by PW -14 Gordhan Singh and others and were then taken to Chittorgarh hospital for treatment. Meanwhile, the brother of the deceased Chatra (PW -1 Soji) and others were informed of the incident and, on next day, i.e., 4.10.1981, PW -1 Soji along with PW -4 Ratan Lal lodged the FIR (Ex.P/1) at Police Station, Gangrar, where a case under Sections 147, 341, 324 and 325 of the I.P.C. was registered. Seven days after the incident on 10.10.1981, Chatra died in the hospital, during treatment and, accordingly, Section 302 of the IPC was added and ultimately, a challan under Sections 147, 341, 325, 307, 302 read with Section 149 of the IPC was filed in the Court of the Judicial Magistrate, at Chittorgarh, from where it was committed to the said trial Court. Smt. Chandi was charged for the offences under Sections 147, 323, 325 and 302/149 of the IPC. The other four accused -persons were charged for the offences under Sections 148, 323, 325 and 302 of the IPC. The accused -persons pleaded not guilty to the said charges. The learned Additional Public Prosecutor then opened his case and examined PW -1 Soji, PW -2 Magniram, PW -3 Devilal, PW -4 Ratan Lal, PW -5 Nathu Singh, PW -6 Narain Singh, PW -7 Megha, PW -8 Gopi, PW -9 Devisingh, PW -10 Mohan, PW -11 Banshi Lal, PW -12 Amar Kanth, PW -13 Dr. R.D. Bhatt, PW -14 Gordhan Singh and PW -15 Dr. Uttam Singh, in support of the prosecution story. The statements of the five accused -persons were then recorded under Section 313 of the Cr.P.C. and all pleaded innocence and stated that on account of enmity of a land dispute, they have been falsely implicated. DW -1 Ratanlal, DW -2 Pyara, DW -3 Madhu and DW -4 Satish were examined, in defence. DW -1 Ratanlal deposed to the effect that from Chittorgarh to Chogavadi, where the incident took place, it takes more than four hours to reach. DW -2 Pyara, a resident of village Pipalia, deposed to the effect that the police had come to arrest Dalu, but Dalu, according to the witness, was in village Pipalia, for the whole of the day. No date has been given by the witness and it appears that he came to establish a plea of alibi in respect of Dalu to the effect that on the day of the incident, Dalu never left the village during the day and, thus, could not be present, at the place of the occurrence. DW -3 Madhu deposed that he saw Gopi, Chatra and 2 -3 Banjaras consuming liquor and then fighting with each other. According to the witness, the accused -persons were not there. DW -4 Satish, a resident of village Bassi, has stated that the appellants Devaji and Udailal, on 3.4.1981, were with him at his house to attend a party.

(3.) THE contention of the learned Counsel for the appellant is two -fold; firstly, he has argued that the assailants were unknown persons and could not be recognised and that was the reason that no FIR was filed on 3.10.1981. Since there was enmity with the appellants on account of a land dispute, they were implicated, after due deliberation and the FIR (Ex.P/1) was filed against the appellants by PW -1 Soji who is a brother of the deceased Chatra. The learned Counsel has contended that the report (Ex.P/1) actually was not filed on 4.10.1981, but was filed actually, on 5.10.1981 and was antedated, in order to reduce the period of inordinate delay. In this respect, my attention has been drawn to the formal FIR (Ex.P/4) which reached the concerned Magistrate on 5.10.1981. In the alternative, the learned Counsel has argued that the number of the assailants has been inflated and innocent persons (including Smt. Chandi) have deliberately been added in order to put to harassment as many as persons, including the said unmarried sister of Dalu and Prabhu. The learned Counsel has also argued that the finding of guilt under Section 304 Part -II of the IPC is unsustainable and at the most, finding of guilt under Section 325 or 325/34 could be recorded. The learned Public Prosecutor has tried to support the conclusions drawn by the learned trial Court.