VIJAY KUMAR & ORS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Three appellants, namely Vijay Kumar son of Arjun Lal, Oma @ Omakant @ Vinod Kumar son of Arjun Lal and Mahesh Kumar son of Kalu Ram along with nine other accused, namely Jagdish son of Ramnath, Makhkhan Lal son of Arjun Lal, Babu Lal son of Prabhati Lal, Ghanshyam son of Jhabarmal, Ramchandra, Yadram, Prakash @ Om Prakash, and Kalu Ram son of Ramnath, and Mrs. Vimli @ Vimla daughter of Arjun Lal, were tried by the court of Additional Session Judge (Fast Track) No.2, Sikar. The said court vide impugned judgment dated 30.9.2003, had acquitted nine persons, namely Jagdish son of Ramnath, Makhkhan Lal son of Arjun Lal, Babu Lal son of Prabhati Lal, Ghanshyam son of Jhabarmal, Ramchandra, Yadram, Prakash @ Om Prakash, and Kalu Ram son of Ramnath, and Mrs. Vimli @ Vimla daughter of Arjun Lal. However, the trial court convicted the appellants, namely Vijay Kumar son of Arjun Lal, Oma @ Omakant @ Vinod Kumar son of Arjun Lal and Mahesh Kumar son of Kalu Ram under Section 302 read with Section 34 IPC. The court held that since the accused are less than five in numbers, hence no unlawful assembly was constituted, therefore, had applied Section 34 IPC. The appellants, however, were acquitted for the offence under Sections 147, 148, 336, 323/149 and 307/149.

(2.) The trial court rejected the prayer made by Oma @ Omakant @ Vinod Kumar that due to retrospective operation of the amendment made in the Juvenile Justice Act, 2007, he is to be declared delinquent juvenile in conflict with law. The trial court having held the appellants guilty of offence under Section 302/34 IPC, sentenced them to undergo life imprisonment with fine of Rs. 1000/-; in default thereof to undergo six months' rigorous imprisonment.

(3.) Mr. A.K. Gupta, the learned counsel for the appellant has submitted that this Bench has to answer following three questions:-