BABU LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BABU Lal, Bhaga Ram and Durga Prasad, the appellants herein, along with seven other co-accused were tried before the learned Additional Sessions Judge No. 1 Sikar in Sessions Case No. 14/1999. Learned Judge vide judgment dated May 14, 2001 while acquitting co-accused persons, convicted and sentenced the appellants as under: - Durga Prasad: U/s. 448 IPC: To suffer rigorous imprisonment for six months. U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer two months simple imprisonment. BABU Lal and Bhaga Ram: U/s. 448 IPC: Each to suffer rigorous imprisonment for six months. U/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 5000/- , in default to further suffer two months simple imprisonment. Substantive sentences were directed to run concurrently. Finding of acquittal of seven co-accused persons has been assailed by the State of Rajasthan in appeal No. 674/2001, whereas the appellants have challenged their conviction and sentence in appeal No. 366/2001.

(2.) THE prosecution case as unfolded during trial is that on January 18, 1999 at 2. 45 PM the informant Banwari Lal (Pw. 2) submitted a written report (Ex. P-2) at Police Station Ranoli to the effect that on the said day around 7-8 AM while his father Mangu Ram was sitting at Kirana-shop along with Bodu Ram, Dhukal Ram, Babu Lal and Phool Chand, the accused Durga Ram, Bhaga Ram, Pokhar, Ashok, Babu Lal, Prahlad, Dala Ram, Gopal, Prabhu Ram, Chandra Ram, Mohan, Bhola Ram, Kalu Ram and 5-6 women armed with Pharsi. Sword, Axe and Lathis came and attacked on them as a result of which Mangu Ram, Babu Lal, Dhukal Ram, Bodu Ram and Phool Chand received injuries. Believing Mangu Ram dead the accused persons fled away. On that report a case was registered and investigation commenced and after usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Sikar. Charges under sections 147, 148, 452, 323, 307 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 26 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.

(3.) IT is well settled that to bring home charge of common intention, prosecution has to establish by evidence, whether direct or circumstantial that there was plan or meeting of mind of all accused. In the instant case as already noticed, the incident occurred on a spur of moment without any premeditation, therefore Section 34 IPC could not be invoked. The prosecution is also not able to establish the charge under Section 448 IPC beyond reasonable doubt. In regard to guilt of appellant Durga Prasad, we find that he assaulted deceased on head but confined to only one blow and did not repeat it. Durga Prasad himself sustained injury and he did not take undue advantage of the situation. Thus Exception 4 to Section 300 IPC is attracted and offence of Durga Prasad fall under section 304 Part I IPC.