KAILASH DAN Vs. STATE OF RAJ.

JUDGEMENT

(1.) - This appeal is directed against the judgment of conviction and order of sentence dated 13.08.1991 passed by the learned Additional Sessions Judge, No.1, Jodhpur in Sessions Case No.68/1987, titled as the State of Rajasthan Vs. Kailash Dan and Anr. , whereby appellant Kailash Dan was convicted for the offence under Sec. 326 Penal Code and sentenced him for 3 years' rigorous imprisonment with fine of Rs.50, in default whereof to further undergo for 15 days' simple imprisonment. It was also ordered that the period for which appellant remained in custody during investigation and trial, same shall be adjusted in the principal sentence. Appellant Gulab Dan was convicted for the offence under Sec. 323 Penal Code and was released on probation for a period of one year on his executing a personal bond and surety bond for Rs.5000.00.

(2.) From the perusal of the record of the learned trial court, it reveals that Mahendra Singh (PW-1) submitted a written report Ex.P/1 before the Station House Officer, Police Station, Shashtri Nagar, Jodhpur stating therein that on 23.03.1987, at about 10:45 AM, a she-goat belonging to him was being beaten by the sons of Jawahar Dan and he asked them not to do so. Thereafter Jawahar Dan, Kailash Dan, and Gulab Dan started pelting stones and when Dalip and his other brothers came out of house, abuses were hurled by the accused. Appellant-accused Kailash Dan went inside his house and brought a sword and inflicted a sword blow on the head of Dalip. Gulab Dan inflicted Lathi blow on the hand of Dalip and Jawahar Dan threw the stones towards him. When Mahendra Singh intervened, he was also hit by stone. The incident was witnessed by Praveen, Daulat Ram and Bharat Bhusan.

(3.) On the basis of this information, FIR No.61/1987 was registered for the offences punishable under Sections 307, 336, and 323 Penal Code at Police Station, Shashtri Nagar, Jodhpur and investigation was commenced. After investigation, charge-sheet for the offences punishable under sections 307, 323 and 325 read section 34 Penal Code was filed on 12.06.1987 before the learned Additional Chief Judicial Magistrate, No.1 Jodhpur. Since the offence under Sec. 307 IPC was exclusively triable by the Court of Sessions, therefore, learned Additional Chief Judicial Magistrate, after complying the provisions envisaged under Sec. 207 Crimial P.C., committed the case to the court of learned Sessions Judge, Jodhpur on 12.08.1987 as per the provisions of Sec. 209 Crimial P.C. Learned Sessions Judge assigned the case for trial to the learned Additional Sessions Judge, No.1, Jodhpur (hereinafter referred to as 'the learned trial court'). The learned trial court after hearing framed charge under Sec. 307 Penal Code against accused Kailash Dan and under Sections 307 read with section 34 and 323 Penal Code against accused Jawahar Dan and Gulab Dan for which they denied and claimed for trial.