KUNDAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal directed against the judgment of the learned Sessions Judge, Bhilwara, dated 27. 1. 78, whereby the learned lower court has convicted and sentenced the accused-appellants as under : - 1. Kundan (1) for offence u/s 147 and 353-6 months R. I. each. (2) for offence u/s 333 I. P. C. 3 years R. I. and a fine of Rs. 200/- and in default of payment of fine to further undergo 2 months R. I. 2. Dhanna, Ramgopal, Rameshwar, Mishri (1) for offence u/s 147 & 352 I. P. C. Each of them for 6 Nanda, months R. I. for each offence. (2) for offence u/s 333/149 I. P. C. 2 years R. I. & a fine of Rs. 100/- each and in default of payment of fine to further undergo one month R. I.

(2.) THE facts giving rise to this appeal briefly stated are that on 17. 4. 74, the wine contractor of Shahpura i. e. Shri Lal Chand submitted a report marked Ex. P. 2 to the Excise Inspector of Shahpura alleging therein that in village Rajyas certain Bavries, specially Kundan and Nanda were indulging in manufacture and sale of illicit liquor and if a search is made immediately incriminating liquor will be recovered and the accused persons responsible for it can be arrested. It is alleged that Ratan Singh, Excise Inspector immediately prepared a memo Ex. P. 13 (a) under section 47 of the Excise Act and proceeded to village Rajyas along with his two guards i. e. Mohan Lal and Dev Bux. Mahaveer s/o Choga, who is the servant of the wine contractor and Tehal Ram who is son of wine contractor Lal Chand accompanied them from Shahpura. THEy reached village Rajyas by bus on 17. 4. 74 at about 4. 30 p. m. THEy went to the house of Kundan and Nanda. Both of them were found present at their own residence. THEy then entered the guvadi of the house of Kundan and Nanda and found evidence of the existence of a wine-bhatti and some empty earthen pots which were alleged to have contained wash, were lying there. When they started enquiring from these two accused-persons about the illicit trade in country made wine it is alleged that Mishri, Rameshwar, Dhanna, Ram Gopal and some other Bavries came armed with lathies on hearing the noise of Kundan and Nanda. When these persons arrived there Kundan and Nanda also joined them and attacked the Excise Party. Looking to their aggressive intent, Excise Inspector Ratan Singh and Mohanlal guard immediately ran away from the guvadi and came out in the open. Tehal Ram and Dev Bux tried to escape from the other side but it is alleged that Nanda and his companions availed Shri Dev Bux and inflicted injuries to him with lathies and an arm of a cot. Kundan was armed with an arm of a cot and he inflicted a blow to Dev Bux which has resulted in a fracture. After that he fell down and later all the accused persons inflicted injuries to him. He became unconscious. After half an hour he regained consciousness and then he went to the hotel of Sohan Mah-raj situated on the bus stand. When Ratan Singh and others were informed that Dev Bux has been injured and he has gone to the bus stand they went in search of him. When they were going towards the bus stand all these six accused-appellants came in their way and even then they tried to attack the Excise Officials and their companions. However, one Sobhag Singh Rajpoot of that village interfered and saved the Excise Party from the impending attack. Ratan Singh and his companions then went to the bus stand. THEy found Dev Bux sitting in the shop of Sohan Maharaj THEy found him seriously injured. He was bleeding from the wounds. His clothes were soaked with blood. He was then carried on a by-cycle to Kanechan police chowki and from there he was taken to phulia village. THEre, no medical aid was available and therefore, the injured was shifted to Shahpura, where he was admitted in the hospital and medical examination of his injuries was conducted P. W. 5 Dr. C L. Dadich has found five injuries on his person. His injury report has been marked Ex. P. 4. His X-rays film has been marked Ex. P. 3 and the X-ray reading report has been marked Ex. P. 5. It is alleged that on 1 8. 4. 74 Excise Inspector Ratansingh went and lodged a written report Ex P. 4 at police station Phulia on the basis of which a rapat no. 11 was recorded in the Rojnamcha at police station Phulia at about 2. 30 p. m. which has been marked Ex P. 12. THE police literate constable was not competent to record the first information report and, therefore, he recorded a note on a sheet of paper and later when the head constable arrived at the police station, on the same day he registered a case under sections 353, 332, 324, 326 and 147 I. P. C. This note is part of Ex- P. 12. It is alleged that the Excise Inspector submitted with this report, the injury memo of injured Dev Bux marked Ex. P. 4, the complaint Ex. P. 2 made by Lal Chand and a copy of the original memo prepared by him under section 47 of the Excise Act, which has been marked Ex. P. 13. After the usual investigation, the case of the accused persons was challaned in the court of learned Munsif & Judicial Magistrate, Shahpura (Bhilwara) from where it was committed for trial to the learned Sessions Judge, Bhilwara. THE learned Sessions Judge charged the accused Kundan for the offences under sections 147, 333 and 353 I. P. C. whereas, the remaining accused persons were charged with the offences under sections 147, 333/149 and 353 I. P. C. THE accused persons did not plead guilty to the charges and claimed trial. Whereupon, the prosecution examined as many as eight witnesses in the case. THE statement of the accused persons were recorded under section 313. THEy examined D. W. 1 Mithu and D. W. 2 Harnath in their defence. After hearing the parties, the learned trial court decided the case as stated by me above. Aggrieved against this judgment all the six convicted accused persons have preferred this appeal.

(3.) I have given my most earnest consideration to the rival submissions made at the bar by both the sides. Initially it was the complaint Ex. P. 2 filed by Lal Chand, wine contractor which set the excise machinery into motion. P. W. 4 Tehal Ram, who is son of Lal Chand, has proved that it bears the signatures of his father Lal Chand at place A to B. Lal Chand himself has not been produced. P. W. 8 Ratan Singh has stated that it was Lal Chand who submitted the report Ex. P. 2. After going through the report, he came to the conclusion that the matter is urgent and, therefore, he preparred a memo under sec. 47 of the Excise Act and then he started for Rajyas accompanied not only by Ram Lal and Dev Bux excise guards but also by motbirs Tehal Ram and Mahaveer. Now the correctness of this statement of the testimony of Shri Ratan Singh has been seriously challenged by the learned counsel for the accused persons. The learned public prosecutor has however, vehemently supported it and submitted that it is a very reliable piece of evidence. I have now to decide how for this part of the testimony of P. W. 8 Ratan Singh can be relied and acted upon.