BABLU Vs. STATE OF RAJSTHAN

JUDGEMENT

(1.) This DB Cr. Appeal under Section 374 Cr.P.C., has been filed against the judgment and order dated 8.8.2003 passed by Additional Sessions Judge (Fast Track), No.1, Kota in Sessions Case No. 27/2003 whereby the present appellants have been convicted and sentenced as under:-

(2.) The brief facts giving rise to this appeal are that Ramdayal (PW/16) gave a Parchabayan, Ex.P/26 on 28.9.2002 at 2.55 AM in the hospital, on which FIR Ex.P/27 was registered on 29.9.2002 at 2.00 PM at Police Station Mahaveer Nagar, Kota. It has been stated in the Parchabayan that on 27.9.2012 at 8.30 PM, complainant Ramdayal (PW/16) along with his brother-in-law Dhanraj and another Ramdayal S/o Mangilal (PW/18) were taking tea on the roof of the house of Ramdayal S/o Mangilal (PW/18). PW/12 Mooli Bai wife of Ramdayal was also present at that time. They heard some noise at the entrance gate, they came down and saw that accused persons along with one-two persons armed with sword, Gandasi and Dhariya were outside the house. Thereafter, accused persons arrived at their roof from the roof of adjoining house and started beating Dhanraj and the complainant. Dhanraj rushed to the ground-floor, there also appellants and accused persons attacked Dhanraj, he sustained injuries. Dhanraj died due to injuries. The contention of the complainant is that he has also sustained injuries. The incident has been witnessed by Ramdayal and his wife also. On this FIR No. 416/2002 has been registered for the offence under Sections 147, 323, 452, 307, 302, 148 and 149 IPC. Case was registered and after investigation, charge-sheet has been filed against the appellants. The case was committed to the Sessions Judge and it was transferred to Additional Sessions Judge (Fast Track) No.1, Kota. The charges have been framed against the appellants for the offences under Section 352, 302, 149, 326, 325 and 323 IPC which was denied by the accused persons and they claimed to be tried. To prove the case against the present appellants, prosecution has examined PW/1 Deen Dayal, PW/2 Mukesh, PW/3 Ram Bharosh, PW/4 Pappu @ Pramod Kumar, PW/5 Ram Charan, PW/6 Dr. Ashok Moondra, PW/7 Babu Lal, PW/8 Sultan, PW/9 Smt. Munni Bai, PW/10 Ghanshyam, PW/11 Bhagwan Dass, PW/12 Smt. Munni Bai, PW/13 Shri Ramesh, PW/14 Gajraj Singh Solanki, PW/15 Niranjan Kumar Gautam, PW/16 Ram Dayal, PW/17 Dharam Raj, PW/18 Ram Dayal S/o Mangilal, PW/19 Narayan Lal, PW/20 Dr. Govind Gupta, PW/21 Hansraj, PW/22 Hazari Lal, PW/23 Laddu Lal, PW/24 Jagdish, and PW/25 Naim Mohammad, PW/26 Dinesh Kumar, PW/27 Phool Chand, PW/28 Shankar, PW/29 Kalulal, and PW/30 Shiv Charan and exhibited documents Ex. P/1 to P/72. The accused appellants have been examined under Section 313 and in defence no witness has been produced but to support his case, the defence has relied on Ex.D/1 to D/5. After conclusion of trial, the present appellants have been convicted and sentenced as indicated above. The present appellants along with one other accused Pappu S/o Chitarlal has also been convicted for the offence under Sections 148, 452 and 302 IPC. Pappu S/o Chitarlal has been stated to be absconding. Hence this appeal has been preferred by the above three appellants.

(3.) The contention of the present appellants is that the whole story is concocted one. Admittedly, there was no enmity between deceased Dhanraj, Ramdayal and the present appellants. Dhanraj came there from Anta along with Ramdayal (PW/16), nobody was knowing that Dhanraj would come on that day at the place of Ramdayal S/o Mangilal (PW/18). FIR is ante-time, police reached the spot immediately after 10 minutes and they have recorded the statements of witnesses. PW/12 Smt. Munni Bai has stated that she narrated the story to police which was reduced in writing and her thumb impression was also taken on it. It was the First Information Report of the incident which has been withheld by the prosecution. FIR reached to the Court after 12 hours; the higher authorities reached the spot immediately but they have not been produced. Statement of Ramdayal has been taken at 2.55 AM whereas the incident was of 8.30 PM and Ramdayal was conscious. There was no reason to record his statement after significant delay. In injury report of Ramdayal (Ex.P/16), wounds have been shown to be stitched, prior to the stitching of wounds, no injury report has been prepared. The witnesses are not reliable. PW/9 Munni Bai has been disbelieved rightly by the court below. PW/12 Munni Bai has locked herself in bathroom hence it was not possible for her to see the incident and PW/18 Ramdayal S/o Mangilal, other alleged eye-witness, has ran away to the house of Sultan from where it was not possible for him to see the incident and only eye-witness remains is PW/16, Ramdayal who is not a reliable witness. He remained on the roof and it was not possible for him to see the incident which has taken place on the ground floor. The case of the prosecution is that accused came on the roof of PW/18 Ramdayal S/o Mangilal through the roof of Sultan but Ramdayal's house is constructed only one storey whereas Sultan's house is double storey and it was humanly not possible to come down from the roof of Sultan to the house of Ramdayal S/o Mangilal (PW/18). There is significant improvement and contradictions in the statement of witnesses, none of the witnesses are truthful hence the present appellants be acquitted from the offence.