PREM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal as well as criminal revision petition are both directed against the judgment and order dated 30.09.2003 passed by Additional District and Sessions Judge(Fast Track) No. 3, Bharatpur (hereinafter referred to as 'the trial court'), whereby the trial court has convicted 12 accused-persons and acquitted remaining 18. Criminal Appeal No. 1464/2003 has been filed by 12 accused-appellants assailing their conviction and sentence recorded by the trial court vide impugned judgment whereas Revision Petition No. 1189/2003 has been filed by the complainant- Dinesh questioning the correctness of judgment passed by the trial court whereby it acquitted remaining 18 accused-persons. The trial court by the impugned judgment has convicted accused-appellants Prem and Ram Narain for offences punishable under Sections 148, 302, 302/149 and 452 IPC. The trial court has also convicted Ram Narain for offences punishable under Sections 323/149 and 325/149 IPC. All the other accused-appellants; namely-Narpati; Daulat; Bhoop Singh; Soni Ram; Vijay Singh; Sabo @ Sahab Singh; Naresh; Shyam @ Brijesh; Guddu @ Devendra and Vishambhar, for offences punishable under Sections 147, 148, 452, 323/149, 325/149 and 302/149 IPC. Accused-appellants, convicted under Section 302 and/or 302/149 IPC, have been sentenced to life imprisonment with fine of Rs. 2,000/-, in default whereof, to further undergo simple imprisonment of six months. Accused-appellants, convicted under Section 452 IPC, have been sentenced to five years' rigorous imprisonment with fine of Rs. .500/-, in default whereof, to further undergo two months' simple imprisonment. Besides, accused-appellants, for their conviction under Section 148 IPC, have been awarded sentence of three years rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo two months simple imprisonment. Those accused-appellants, convicted under Section 325/149 IPC, have been sentenced with five years' rigorous imprisonment with fine of Rs. 1,000/-, in default whereof, to further undergo three months simple imprisonment. Those, convicted under Section 147 IPC, have been sentenced with two years' rigorous imprisonment. The accused-appellants, convicted under Section 323/149 IPC, have been sentenced with one year's rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo three/two months simple imprisonment.

(2.) Factual matrix of the case, essential for deciding the appeal as well as revision petition, is that a Parcha Bayan(Exhibit P-9) was given by Dinesh(P.W.1) at 6.10 P.M. on 04.03.1991 to Gainda Lal Yadav-ASI(P.W.23) at General Hospital, Bharatpur, alleging therein that on that day at 9.00 A.M., while Dinesh was taking food, in the Varandah of his house and his neighbour Ayodhya Prasad was drenching the newly constructed walls of his house, in order to moister them, accused Soni Ram, Ram Narain, Prem, Bhajan Lal, Ajay, Vijay, Radho, Sabo, Keshav, Narpat, Vishambhar, Bhoop, Doli, Radhey Shyam, Guddu, Shyam, Naresh, Vijay, residents of Ganwadi and 20-25 people of that village came and entered the house of Ayodhya Prasad and pulled him out in the lane. Accused Ram Narain brought out licensed gun of Ayodhya Prasad from his house. When these persons entered the house of informant Dinesh, he went into hiding and accused Prem took away licensed gun of Kamal from there. As the informant apprehended for his life, he ran towards fields where he told his uncle Shiv Ram and brother Kamal about the incident, who at that time were cutting "Laha" crop(Mustard). All these persons chased the informant towards the fields. The informant Dinesh, Kamal, Shiv Ram, upon seeing them, ran towards Nagla of Nand Ram(a small village). They scaled the stairs and went up on the roof of house of Man Singh Faujdar. At that time, Ram Narain and Prem fired shots from the guns, which hit Kamal. He further asserted that he, as also Shiv Ram, were assaulted with lathies. Lathi blows were dealt on his head, hands and foot by Guddu, Shyam and Vishambhar. He also stated that Soni Ram and Doli Patwari gave Pharsa blows on the person of Kamal, who was lying down. Kamal died on the spot and other persons of the village also suffered injuries. Dead body of Kamal was removed to Village Ganwadi. It Was also stated that incident in question had been seen by the males and females of Nagla Nand Ram.

(3.) On the basis of aforesaid Parcha Bayan(Exhibit P-9), a formal FIR No. 103/1991 (Exhibit P-81) was registered at Police Station Sewar for offences punishable under Sections 147, 148, 149, 323, 307, 452, 380 and 302 IPC. The Police filed challan against 23 accused persons, but kept investigation pending under Section 173(8) Cr.P.C. against some other accused persons; namely-Radha Kishan, Vishambhar, Naresh, Guddu, Shyarh and Mukut. The police, in its initial conclusion, did not file any challan against accused Ram Narain and Doli Patwari concluding that they were not present at the scene of occurrence, on account of former being hospitalised and latter being on duty. Learned trial court framed charges against 23 accused-persons on 07.08.1992 for various offences, which were later amended in the manner that for some of the accused charge under Sections 302/149 and 148 were also framed. Thereafter, an application under Section 319 Cr.P.C. was filed by the complainant. The trial court, while allowing that application vide order dated 13.01.2003, added and summoned seven accused persons, who were let off by the police, namely Ram Narain, Naresh, Shyam @ Brijesh, Guddu @ Devendra, Vishambhar, Doli Patwari, Radho @ Radha Kishan to face the trial for the aforesaid offences. Thereafter, nine prosecution witnesses, who were earlier examined, were re-examined. The prosecution, in support of its case, examined 27 witnesses and got 98 documents exhibited. Thereafter, statements of the accused-persons under Section 313 Cr.P.C. were recorded wherein they pleaded innocence. The defence produced 18 witnesses and exhibited 36 documents. The trial court vide its judgment dated 30.09.2003 acquitted 18 accused-persons of the charges framed against them and convicted 12 accused-persons and sentenced them in the manner indicated hereinabove. The accused so convicted and sentenced have come in appeal assailing their conviction and sentence whereas the complainant has filed revision petition against acquittal of 18 accused-persons by the trial court.