GURDEEP SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been preferred against the judgment dated 25.2.1993, passed by learned Additional Sessions Judge, No. 2, Sriganganagar, in Sessions Case No. 12/91, whereby he convicted the appellant for the offence under Sec. 307, I.P.C, and sentenced him to seven years' rigorous imprisonment and a fine of Rs. 200.00, in default of payment of fine, to further undergo rigorous imprisonment for one month. He, however, acquitted him of the offence under Sec. 148, IPC. He further acquitted six co-accused persons of the offence under section 147, Penal Code and section 307 read with section 149,1.P.C. but found co-accused Mohan Lal guilty of Offence under section 232, Penal Code and instead of sentencing him for imprisonment, released him on probation.

(2.) Stated in succinct, the relevant facts for disposal of this appeal are, that on 10.10.90 at 11:00 p.m., PW 5 Dilawar Singh lodged an oral report to the Station House Officer, Police Station, Hindumalkot, alleging that there was a dispute regarding way passing through his field, which he had already closed, that on that day at about 9dX) p.m. when he was standing near the door of his house, appellant Gurdeep Singh, alongwith six co-accused persons came there on a Tractor and told him that they will teach him a lessor for obstructing their way and that he asked them to stop by raising his hand and that thereupon the appellant fired from his pistol towards him, causing injury on his left lumbar region. He further informed that his brother Harmeet Singh, who was standing besides him, also challenged the assailants and that thereupon co-accused Hardeep Singh dealt a 'gandasi' blow on has left leg. He further informed that all the assailants were shouting that they would kill him. On this oral report, the Station House Officer drew the First Information Report Ex.P/2, registered a case under sections 17,148,307 and 149,1.P.C. and under section 27 of the Arms Act and, after usual investigation, filed the challan against the appellant and six co-accused persons in the court of learned Munsif and Judicial Magistrate, Sriganganagar, who in his turn, committed the case to learned trial Judge. The appellant was charged for offences under sections 148 and 307, Penal Code while the other co-accused persons were charged for offences under sections 147, 307 read with 149 IPC. The appellant and co-accused denied the indictment. The prosecution examined as many as ten witnesses. The appellant in his plea recorded under section 313, Crimial P.C., denied the circumstances appearing against him in the prosecution evidence and asserted that he neither fired nor any pistol was recovered at his instance. He claimed that members of the complainant party were aggressors, who had inflicted grievous injuries to co-accused Hardeep Singh and Mohan Lal and, for which a cross case was registered. No oral evidence was adduced in defence. The learned trial Judge held that from the prosecution evidence, it was not established that the appellant alongwith six co-accused persons, had formed an unlawful assembly having a common object of Committing minder of PW 5 Dilawar Singh and, that on the other hand, it was a case of free-fight. He further held that since the appellant had fired from his revolver from a distance of ten feet, causing injuries to Dilawar Singh, resulting in fractures of his 11th and 12th rib, it was manifest that he intended to commit his murder. He, accordingly found him guilty for offence under section 307, Penal Code and sentenced in the manner indicated above.'Hence this appeal.

(3.) I have heard Mr. M.K. Garg, learned counsel for the appellant and the learned Public Prosecutor and carefully perused record of the lower court in extenso.