ANAND BABU Vs. SEEMA DEVI AND ANR

JUDGEMENT

(1.) This jail appeal has been filed by the appellantaccused challenging the order dated 29.9.2007 passed by Additional Sessions Judge, Bhadra, District Haunmangarh in Sessions Case No.3/2006 convicting and sentencing the appellant-accused as under:-

(2.) Brief facts of the case are that the on 6.9.2005 at 10:15 AM Shri Birbal Ram S/o Shri Hanuman by caste Jat Kulariya filed a written report in Police Station, Bhadra alleging therein that his younger brother Rajkaran was residing in his house along with his family in Ward No.2, Bhadra. On 5.9.2005, his brother Rajkaran was sleeping in the house of Vinod Naai R/o Sagara alongwith his family. His son Mahender was sleeping in a room, his elder son Ramratan, his wife and child were sleeping on the floor and one child was sleeping with grand-father Rajkaran, in the midnight of 5 and 6.9.2005, some unknown persons entered in the house of Rajkaran and brutally assaulted sleeping inmates by lathies and other weapons. Many persons became unconscious due to injuries sustained on the head, the unknown persons/burglars stolen their ornaments and cash, when the residents of colony came to know about the incident on next day in the morning at about 6 AM, they informed to the police and got the injured persons admitted in the hospital. During treatment Rajkaran and his brother- in-law Krishan Kumar died. On the said report, police filed an FIR No.298/2005 for the offence under Sections 460, 394, 302, 307 & 323 I.P.C. and started investigation, after investigation, the police filed charge-sheet against accused Jagdish and Sukhveer alias Kullu for the offence under Sections 460, 397, 398, 302, 307, 323 and 325/34 I.P.C., after assessing and appreciating entire evidence, learned trial court has passed the impugned judgment sentencing the appellant as stated hereinabove. Being aggrieved by the impugned verdict, the appellant-accused has preferred the instant jail appeal.

(3.) Learned counsel for the appellants has contended that the trial court has committed error and has not appreciated the evidence properly. The FIR does not disclose name of any accused person, despite at a subsequent stage, names of accused persons have been disclosed, which makes the prosecution story doubtful. The Magistrate conducted identity test parade, has not been produced in the evidence and the prosecution has failed to produce the report of the moulds of foot step and so far as recovery is concerned, it has been made from open area after a gap of several months, there is no motive established, recovery is forged, the appellant-accused persons are innocent and have not committed any offence, learned counsel has further argued that there cannot be clubbed conviction under Sections 460 and 302 I.P.C. because the provisions of Section 302 I.P.C. are thus covered under confines of Section 460 of I.P.C. The learned trial court has not appreciated the evidence in a just and correct way and have failed to prove the charge beyond reasonable doubt against the appellantaccused, so the appellants may be acquitted and their appeal may be allowed.