SUBRAN & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgement dated 21.4.2007 by which the learned Additional District and Sessions Judge (Fast Track) No. 3, Bharatpur Camp Bayana in Sessions Case No.28/2006 has convicted the accused-appellants in the following manner:

(2.) Brief facts giving rise to this appeal are that on the basis of parcha bayan (Ex.P1) of one Suresh recorded on 17.12.2004 at General Hospital, Bharatpur, a first information report bearing no. 247/2004 for offence under section 147, 148, 149, 323, 341 and 302 IPC was registered and investigation commenced. It was alleged in the report that day in the morning at 6.00 AM, he (Suresh)and his brother Vishnu had gone to their fields near river. Ajit @ Baniya, Sumran, Ramboli, Sunita, Sonu @ Sohanlal, Naresh and Jagdamba were already there. Ajit Singh inflicted a baank blow on Vishnu while Sumran inflicted a spade blow on the person of informant. Sonu was armed with danda and Jagdish was armed with katta. Naresh inflicted a danda blow. Jagdamba was also armed with a farsa. He inflicted a farsa blow on Vishnu while Ajit inflicted a farsa blow on his hand. Jagdamba inflicted a farsa blow on his person. Thereafter, Jagdamba fired from katta, which passed through feet of informant. He became unconscious and he was taken to Bharatpur Hospital where he regained consciousness. Ajit was also armed with baank. His cousin brother Kishori was in the field of Sumran and he saw the entire incident. His brother Vishnu died in the hospital. The postmortem of the body of deceased Vishnu was conducted and the doctors opined that the cause of death was coma along with shock brought about as a result of ante mortem injury to skull and brain, multiple fractures and cutting of blood vessels of left knee joint as mentioned in the postmortem report, which was sufficient to cause death in the ordinary course of nature. During the course of investigation, accused-appellants were arrested and after completing the investigation, police filed the challan for offence under section 147, 148, 149, 323, 341, 325 and 307 IPC. Charges were framed for offence under section 148/149, 323/149, 341, 325/149, 302 and 302/149 IPC. Accused denied the charges and claimed to be tried. Prosecution produced as many as 18 witnesses along with 33 documents. The accused were examined under Section 313 Cr.P.C. and they produced 3 witnesses and 24 documents in their defence. After hearing both the parties, the learned trial court convicted and sentenced the accused-appellants vide impugned judgement in the manner as stated above. Hence this appeal.

(3.) Shri Biri Singh Sinsinwar, learned senior counsel for the appellants argued that the learned trial court has erred in law in not correctly appreciating the evidence in the instant case. Parcha bayan (Ex.P1) of Suresh (PW1) was recorded at 3.30 PM on 17.12.2004. On the basis of parcha bayan, an FIR No. 247/2004 was registered at Police Station Uchchain on 17.12.2004 at 6.30 PM. Panchnama (Ex.P3) was prepared on 17.12.2004 at 12.40 PM in the presence of Laxmikant (PW15), Bhagwan Singh (PW16), Kishori (PW13), who happened to be the brothers of deceased and Girija Kant. The prosecution produced Kishori (PW13) as eye witness of the incident but he has not informed the Investigating Officer Manoj Singh (PW14), who prepared panchnama at that time, about the accused persons, who gave beating to the deceased Vishnu and Suresh. Though the incident has taken place on 17.12.2004 in early hours, Suresh (PW1) was medically examined on 17.12.2004 at 1.30 PM. He was fully conscious and he put his signatures on the injury report. At that time also Suresh (PW1) did not utter anything about the incident either to the doctor or to the Investigating Officer, who prepared the panchanama or to other persons. Therefore, no reliance can be placed on the pancha bayan (Ex.P1) of the injured Suresh. Learned senior counsel further submitted that in the parcha bayan allegations were levelled against seven persons. The prosecution did not choose to file challan against three persons. Neither the complainant, nor the Public Prosecutor took any action for making rest of the persons as accused. It was mentioned in the parcha bayan that it is Ajit Singh, who inflicted a baank blow on the person of Vishnu and Subran inflicted a spade blow on the skull of the injured. It was also alleged that Jagdamba was armed with farsa and katta both and he used both the weapons. There is no specific allegation against Jagdamba of inflicting the injury on the person of deceased. This parcha bayan did not bear the right thumb impression though he put his signatures on his injury report. From this, it is clear that parcha bayan has been manipulated later on. Hence no reliance can be placed on such parcha bayan.