GYAN SINGH Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur, who has thereby convicted accused-appellant Gyan Singh for offence u/Sec. 302 IPC simpliciter and a fine of Rs. 1,000 and in default of payment of fine, he was to further undergo simple imprisonment of six months, accused-appellant Shiv Singh was convicted for substantive offence u/Sec. 307 IPC and sentenced to undergo simple imprisonment of four years with fine of Rs. 1000 and in default whereof six months simple imprisonment. The rest of the accused-appellants i.e. Rajveer, Indal Singh and Prabhu Dayal along with Shiv Singh were convicted for offence u/Sec. 302 with the aid of Section 149 IPC and were awarded same sentence as given to the accused-appellant Gyan Singh. Similarly, all other four accused-appellants namely; Gyan Singh, Rajveer, Indal Singh arid Prabhu Dayal, except Shiv Singh were convicted for offence u/Sec. 307 with the aid of Section 149 IPC and were awarded the same sentence as was given to accused Shiv Singh for his conviction for the substantive offence of Section 307 IPC. All the accused-appellants were convicted for offence u/Sec. 459 IPC and sentenced to simple imprisonment of four years and fine of Rs. 1000, in default of payment of fine, they were required to further undergo simple imprisonment of six months. Accused-appellant Gyan Singh was additionally convicted for offence u/Sec. 3/25 of Arms act and sentenced to simple imprisonment of one year with fine of Rs. 1000, in default whereof, he was to further undergo simple imprisonment of six months. All the accused-appellants were convicted for offence u/Sec. 460 IPC and sentenced to four years simple imprisonment with a fine of Rs. 1,000, in default whereof, they have to undergo simple imprisonment of six months and were also convicted for offence u/Sec. 147 IPC, they were sentenced to one year's simple imprisonment and for offence u/Sec. 148 IPC, they were sentenced to one year's simple imprisonment. Brief facts of the case are that complainant Vikram Singh S/o. Dhujiram lodged a written report Ex. P/14 on 2.5.97 at PS Chiksana alleging therein that in the night of 1.5.97 he was sleeping at a distance of 15-20 yards from his brother Gopal in his house. In the night at around 1.00 a.m. he got up on hearing the sound of fire shot and saw Prabhu, Indal, Rajveer, Gyan and Shiv Singh armed with weapons standing, near the cot on which his brother-Gopal was shouting that Prabhu has fired on his chest. Then Prabhu told Shiv Singh to kill his bhabhi Smt. Devi and thereupon Shiv Singh opened fire and injured her. It is alleged that Prabhu, Rajveer, Indal and Shiv Singh were having kattas in their hands and Gyan was armed with farsa. When they were going outside, 4-5 persons were also seen standing outside but he could not identify them because of the darkness. Prabhu was shouting that today they have killed him and now they will see who dared come to oppose them. Informant raised hues and cries thereafter, Surjan, Ramesh, Subhash, Pappu and other neighbours reached over there.

(2.) The police on the basis of the aforesaid written report registered a regular first information report for offence u/S. 147, 148, 149, 452 and 307 IPC. During the course of investigation, however, the injured Gopal died, therefore offence u/Sec. 302 IPC was added. Eventually on completion of investigation, charge-sheet was filed against as many as ten accused for offence u/Sec. 147, 148, 149, 307, 302, 459, 460, 120B, 118, 176 IPC and 3/25 of Arms Act. Charge against the accused-appellant Gyan Singh was framed for substantive offence of Section 302 IPC and Shiv Singh for substantive offence of Section 307 IPC, but they along with other accused were alternatively charged for aforesaid offences with he aid of Section 149. Additionally, all the accused were charged under Section 147, 148, 459 and 460 IPC. Accused-appellants denied the charges and claimed to be tried. The prosecution produced 34 witnesses and exhibited 56 documents, whereas defence produced only 2 witnesses and did not produce any document. The learned trial Court on completion of trial, acquitted accused Maya, Guddi, Roopwati and Vijay and convicted and sentenced the aforesaid five accused-appellants in the manner indicated above. Hence, this appeal.

(3.) Shri Mohd. Rahil Kalam, learned counsel for the appellants has argued that the prosecution has utterly failed to prove guilt of the appellants beyond reasonable doubt inasmuch as there are material contradictions in the statements made by the prosecution witnesses. As per the evidence of prosecution, Vikram Singh (P.W. 13), younger brother of deceased Gopal on the day of incident was also sleeping on the nearby cot when deceased was allegedly fired by the accused. Smt. Devi, widow of the deceased (P.W.-11) has stated that his son Ranjeet, younger brother-in-law Vikram and elder brother-in-law Laxmi Karan were immediately sent to the police station for giving information about the incident. Ex. D/13A is the report entered in the police rojnamcha about the incident. All that was stated was that some miscreants have attacked their house and since the prosecution witnesses are admitting that all the accused are known to them from before and that on that very evening Gyan Singh had come to the house of deceased Gopal where they together had drinks and dinner, therefore, it sounds quite unnatural why he could not name the miscreants while informing the police. The Investigation Officer Mahaveer Singh Solanki (PW 30) has also admitted that when initially the information was given to him by Vikram Singh, he did not tell him the name of accused, who were named only for the first time in written report Ex. P/14 submitted at 5.35 a.m. The prosecution witnesses had carried the deceased and the injured wife Smt. Devi (P.W. 11) on tractor, but on the way, they were met with Mahaveer Singh Solanki (PW 30). SHO, Police Station Chiksana Shri in Jeep who then carried them in jeep to hospital at Bharatpur. Mahaveer Singh Solanki (PW 30), SHO, Police Station Chiksana has stated that he stayed with them throughout night till 5.35 a.m. in the morning, but they did not tell him the names of the accused. It is contended that Mahaveer Singh Solanki (PW 30) has admitted that deceased was their informer and that he used to give them information about the accused and the crimes not only with regard to the incidents in the State of Rajasthan, but also in adjoining States of Uttar Pradesh. He has stated that deceased Gopal was formerly Sarpanch of the Gram Panchayat and it is therefore quite possible that he may be having enmity with several persons and dacoits and they would have attacked their house. The accused-appellants have thus been falsely implicate.