RAJOO Vs. STATE OF RAJASTAN

JUDGEMENT

(1.) THIRTEEN accused persons viz. Raju, Ocarina, Serial, Ghewaria, Moti, Jairam, Hanuman arid six other accused (acquitted by the trial court) were tried by the learned Additional Sessions Judge. No. 1, Jodhpur in connection with an occurrence which took place on March 26. 1975. In the course of that occurrence, the 'jhumpa' of P. W. . 4 Kesia was set to fire; and P. W. 1 Dhanrii, P. W. 2 Dalla. P. W. 3 Kisturi, P. W, 4 Kesia, P. W. 5 Sohanki, P. W. 6 Khinwada were injured at the hands of the accused. The learned Judge acquitted all the accused of all the charges, punishable under Sections 148 and 452 IP. C, He convicted the accused-appellant Raju under Section 436 I. P. C. , and sentenced him to four years' rigorous imprisonment, and to pay a fine of Rs. 100/; in default of the payment of which to further undergo rigorous imprisonment for a period of four months. In addition to that he was convicted under Sections 323 and 323 read with Section 149 I. P. C, and was sentenced to six months' rigorous imprisonment. He was also convicted under Section 147 I. P. C. and was sentenced to four months' rigorous imprisonment, and to pay a fine of Rs. 50/-; in default of the payment of which to further undergo rigorous imprisonment for one month. The remaining appellants viz. Godariya, Seriya, Ghewariya, Moti and Jairam were acquitted of the charges punishable under Section 436 read with Section 149 I. P. C. Each of them was convicted under Sections 323 and 323 read with Section 149 I. P. C, and sentenced to six months;' rigorous imprisonment. In addition to that each of them was convicted under Section 147 I. P. C. and sentenced to four months' rigorous imprisonment and to pay a fine of Rs. 50/-; in default of the payment of which to further undergo one month's rigorous imprisonment. The substantive sentences in the case of each of the appellant have been ordered to run concurrently. The accused Harman was convicted under Sections 323, 323/149 and 147 I. P. C. but the benefit of Section 4 of the Probation of Offenders Act was extended to him. The remaining six accused were acquitted by the learned Additional Sessions Judge.

(2.) TERSELY speaking and shorn of all unnecessary, details the prosecution story in a nutshell is that the accused persons had an impression that the members of the complainant party were running brothel houses affecting adversely the moral of the other residents of the village. On March 26, 1975 all the accused including the appellants formed themselves into an unlawful assembly, the common object of which was to give a beating to Khinwada and his other relations so that they may be driven out of the village vicinity. It is alleged that nearly at 10 p. m. all of them, after being armed with 'gedies', came to the place where the members of the complainant party used to reside. They threw stones and thereafter, entered into the premises where P. W. 1 Dhanni, P. W. 2 Dalla, P. W. 3 Kisturi, P. W. 4 Kesia and P. W. 5 Sohanki and P. W. 6 Khinwada were sleeping. The accused persons belaboured the members of the complainant party and accused Raju set fire to the hut of P. W. 4 Kesia. A first information report of this occurrence was lodged by P. W. 6 Khinwada at the Police Station, Pipar City at 10. 30 p. m. P. W. 8 Avtar Singh registered a case against the accused, and came on the scene of occurrence. He found the 'jhumpa' of P. W. 4 Kesia burning. According to him all the articles lying inside the 'jhumpa' including the doors of the 'jhumpa' were burnt to ashes at the time when he reached the spot. A site-plan Ex. P. 8 and the site-inspection memo Ex. P. 9 were prepared on the spot on March 27, 1975 by P. W. 8 Avtar Singh. The injured persons Were clinically examined by P. W. 7 Dr. P. P. Gandhi, and their injury reports are Ex, P. 2 to Ex. P. 7. The Police after usual investigation submitted a challan in the Court of Munsiff-Magistrate, Bilara, who committed all the thirteen accused for trial to the Court of learned Sessions Judge, Jodhpur and thereafter, the case was transferred to the Court of learned Additional Sessions Judge, No. 1, Jodhpur. The accused pleaded not guilty to the charge. 2-A. The prosecution examined nine witnesses in support of their case, out of whom P. W. 1 to P. W. 6 are the injured persons and the eyewitnesses of the occurrence. P. W. 7 Dr. P. P. Gandhi was examined to prove the injuries sustained by P. W. 1 to P. W. 6. P. W. 8 Avtar Singh is the Investigating Officer of this case and P. W; 9 Bhinyaram is the Panchanama witness who was declared a hostile witness. The accused persons denied their complicity in the crime and examined four witnesses in support of their defence The learned Judge held the defence witnesses unreliable. Placing reliance on the statements of the eye-witnesses, the first information report Ex. /p. 1, and the statement of P. W. 7 Dr. P. P. Gandhi, the learned Judge convicted, the accused-appellants as mentioned above The convicted accused except Harmah have come up in appeal before this Court,

(3.) MR. Bhansali, learned Counsel for the accused-appellants, has vehemently challenged the findings of the trial court. He urged that there are certain outstanding features which are sufficient to throw doubt on the entire prosecution case. It has been urged that the prosecution' witnesses are interested and partisan witnesses and that the occurrence could not have taken place in the manner suggested by the prosecution. It was not possible for the witnesses to exactly locate the person as to who out of the thirteen accused persons set fire to the thatched roof of the 'jhumpa'. It was further urged that a large number of persons had come in the 'ger' and it was not possible for the witnesses to state as to whose stone hit the particular person. In the first information report Ex. P. 1 the parentage of the thirteen accused persons has been mentioned whereas P. W. 6 Khinwada admitted in cross-examination that he knew the parentage of only five or six accused persons. He was given an opportunity to explain the discrepancy appearing in his statement recorded in the trial court, and the first information report, but the witness failed to. explain it, According to the learned Counsel this discrepancy is suggestive of the fact that the first information report of this occurrence was lodged after the Investigaing Officer had appeared on the scene of the occurrence and not at the time when it is purported to have been filed, and that the Jhumpa' which is said to have been set on fire cannot be termed to be a built house for human dwelling, or a place for the custody of property. The learned Counsel for the State has supported the judgment of the trial court.