JHANDU KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SINCE these two appeals are directed against one and the same judgment of the Sessions Judge, Bikaner dated August 20, 1974, they were heard together and are decided by a common judgment. By the judgment aforesaid, the learned Sessions Judge convicted six persons, viz., Jhandu Khan, Safi, Yusuf, Gulam Nabi, Ramjan and Shamekhan under Sections 138, 323 and 448, IPC. Accused Jhandu Khan was further convicted under Section 455, IPC. Except accused Jhandu Khan, all other (five in number ) instead of being sentenced to any punishment, were released on probation of good conduct. Accused Jhandu Khan was sentenced to four month's rigorous imprisonment with a fine of Rs. 50/ - under Section 455, I.P.C., three month' rigorous imprisonment with a fine of Rs. 50/ - under Section 323, I.P.C. and two month' rigorous imprisonment with a fine of Rs. 50/ - under Section 148, I.P.C. All of them were acquitted of the offence under Section 307, IPC. Accused Jhandu Khan has come -up in appeal to challenge his conviction and sentence while the grievance of the State is that the accused persons were wrongly acquitted of the offence Under Section 307, IPC.

(2.) VERY few facts need narration for the disposal of this appeal. Briefly stated, the prosecution case is that at about 6.00 A.M. on July 14, 1973, thirteen persons in all went to the house of PW 1 Ismail situate in Garsariya Mohalla, Bikaner. The door of the house was bolted from inside The bolt was removed. The miscreants then made an assault on Ismhil and the members of his family and landed blows to them. A report of the occurrence was lodged at about 6.30 A.M. on the same days. The police registered a case and after usual investigation submitted a challan against the six accused persons named above and one Mst. Fatma wife of accused Jhandu Khan in the Court of Additional Munsif and Judicial Magistrate, Bikaner, who committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 148, 307/149, 449 to and 323, IPC against time, which they pleaded not guilty and faced the trial. In defence they placed a counter -story that the members of the complaint party forcibly came to the house of accused Jhandukhan and made an assault on them, resulting in serve injuries to them. On the conclusion of the trial, the Sessions Judge was of the opinion that no case under Section 307, I.P.C. was made out. There was no incriminating material as against accused Mst. Fatma. Mst. Fatma was acquitted of all the charges while the remaining six accused persons were convicted as mentioned at the very out -set. Accused Jhandu Khan was sentenced as mentioned above while the remaining five were let -off on probation of goods conduct. We have heard Mr. P.P. Chaudhary learned counsel for the accused persons and Dr. S.S. Bhandawat the learned Public Prosecutor. We have also gone through the case file carefully.

(3.) THOUGH it has been mentioned in the FIR Ex. P 1 that the door of the house was bolted from inside and the bolt was removed by the accused persons, it has not been mentioned in Ex. P 1 that the bolt was removed by the accused Jhandu Khan. Apart from that, we entertain serious doubts whether the door of the house was in fact bolted from inside ? The occurrence is said to have taken place at 6.00 a.m. on July 14, 1973. At 6.00 in July, there is much light and sun -shine. People wake -up much before this time. Ismail is a Tongawala. His wife, at the time of the occurrence, was providing fodder to the mare. In these circumstances it can be well inferred that the door of the house must have been open and was open when the accused made the entry. We, are, therefore, unable to maintain the conviction of accused Jhandu Khan under Section 455, IPC. At the most, he should have been convicted along with co -accused under Section 448, IPC. We, therefore, set -aside the conviction of accused Jhandu Khan under Section 455 and instead convict him under Section 448, IPC.