RAJESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal against the Judgment of the learned Additional Sessions Judge, Sirohi dated 9-6-1981 whereby the learned lower court has held accused-appellants Rajesh and Rampal guilty of the offence under Section 396 IPC and has sentenced them to imprisonment for life together with a fine of Rs. 500/- and in default, to undergo 6 months' rigorous imprisonment. Although, the learned lower court has held that these accused-appellants are guilty of the offence under Sections 397 and 399 IPC also but they have not been separately sentenced for these offences because they have been sentenced under Section 396 IPC. However, accused Rajesh, Prabhudayal and Sheri have been acquitted of the offence under Sections 120B read with Section 397 IPC.

(2.) The facts giving rise to this appeal briefly stated are: that Kalu Ram and Kashiram belong to village Moongthala situated in the jurisdiction of P.S. Abu Road. Kashiram is the Sarpanch of Gram Panchayat, Moongthala. Kaluram is Kashiram's elder brother. It is alleged that they are the rich people of the village. Kashiram's family lived in the midst of the Abadi whereas Kaluram's family started living just outside the village Abadi. It is alleged that accused Prabhudayal's sister Savitri was married with one Richhpal Mali belonging to village Aaval Village Aaval is situated near village Moongthala. Accused Prabhudayal lived there for about one and half years. He belongs to village Tijara in District Alwar. It is alleged that Prabhudayal Mali hatched a conspiracy with one Sheri, Rajesh and Omi to commit robbery in the house of Kaluram in the month of October, 1978. It was given out to the accused persons by Prabhudayal that the family of Kaluram and Kashiram possessed of two kilograms of gold and one and half maunds of silver It appears that Omi and Rajesh are Bavaries by-caste and so, they did not like to share the wealth with accused Prabhudayal and, therefore, they told him that they will not commit robbery at that time. It is alleged that at that time, accused Rajesh, who was armed with a country made pistol, concealed that pistol in the field of PW 12 Abdul. The pistol (Article 16) and three cartridges (Articles 17 to 19) were noticed by PW 12 Abdul and he produced them before PW 25 Bhagwandass, SHO, who seized them vide memo Ex. P 28. It is alleged that accused Omi and Rajesh then went towards Kachh-bhuj side along with Sheri. Prabhudayal could read their intention and, therefore, in order to take revenge from them, he wrote a letter to Kashiram on 24-10-1978 that a dacoity will be committed at his house. On receiving this letter, Kashiram handed it over to the Police with an application. However, no dacoity took place upto 31-10-1978 It is alleged that one of the brothers of Kaluram and Kashiram viz., Kishorilal lived at Swaroopganj. His son's marriage was fixed on 3-12-1978 and so, the entire family of Kashiram as also Kaluram, his wife and two sons of Kaluram's son Poonamchand went to attend that marriage at Swaroopganj. Poonamchand and Gokulchand, who are sons of Kaluram along with Mst. Narangi, wife of Poonamchand and her two daughters remained in village Moongthala, Mst. Bhanwari wife of Gokul Chand has gone to her parents and she was there for the past about two months. It is alleged that in the night intervening 4th and 5th December. 1978, these four accused-persons alongwith 2-3 others came to the house of Kaluram, broke the shutter of the main gate and entered into his house. One of the accused stood at the main gate, as a guard, armed with a pistol. It is alleged that accused Rajesh was armed with pistol. The other accused-persons who were armed with the arms of the cots entered into the house of Kaluram in which Gokulchand was sleeping in a room adjacent of the kitchen. Mst. Narangi and her two daughters were sleeping in the kitchen and Poonam Chand was sleeping in the shop. Almost, all their boxes containing clothes etc. were lying in the Kitchen. A lantern was kept hanging outside the Oasari during the night when these persons entered into the Chowk of the house. When all this took place, the street dogs started barking whereby Mst. Narangi woke up She told her husband who was sleeping in the shop, which is adjacent to the kitchen, and a window existed without door in between kitchen and the shop from which discernible, that why the dogs are barking. Thereafter, she saw towards the Chowk and found some persons standing there She also noticed that the lantern which was kept hanging was lying on the ground of the Chowk and some persons were flashing the torch. She immediately raised a cry 'CHOR CHOR BHAGO BHAGO' etc. which attracted the attention of PW 5 Maghsingh, whose house is situated just near her own house and PW 14 Sankalsingh, who was working as Head Master in the Middle School, Moongthala. The movement of these persons was also noticed by PW 23 Fattaram, Upsarpanch of the Gram Panchayat who was requested to sleep outside the house of Kashiram Sarpanch because Kashiram went with his entire family to Swaroopganj. On hearing these cries and on noticing the movement of these persons (accused party), these persons started towards the house of Kaluram but the man who was standing outside the house, abused & told them to keep themselves away from the place of the occurrence or else he will shoot them. On hearing these threats, they retreated from that place. It is alleged that the accused-persons knocked the doors of the kitchen and asked Mst. Narangi to open the door. Poonamchand also came into the kitchen and they tried to block the opening of the doors but the accused persons pushed the doors with great force and thereby, the gates of the kitchen opened. The accused-persons then gave beating to Mst. Narangi and Poonam Chand and asked them to show their wealth. In the meanwhile, they took out the boxes from kitchen, broke their shutters and scattered the entire articles lying therein. Some cash was taken away which was lying in one box and some clothes were also taken away and then they started beating Poonam Chand in order extract information from him where the wealth was concealed. On seeing this, Mst. Narangi told them not to beat her husband and volunteered to show the place where the wealth was lying. It is alleged that Gokulchand came out of his room and he too was beaten and pushed back in the room and was threatened to keep quite. He then remained inside the room and in the meanwhile, Mst Narangi pointed out to the accused-persons the place where her own ornaments were concealed. There, a hole was dug in the ground and then her ornaments were taken out which consisted of one golden Chain, Shishphool, Singarpatti, Tika and Bajubandh etc. They were weighing about 11 tolas in weight. The accused persons then dug another hole in the ground after removing one stone but nothing was found. They then came out of Kitchen and then went inside the room of Gokul Chand. They started beating Gokulchand and asked him to show his wealth. When Gokul Chand did not show the place where his wealth was concealed, the accused persons started beating him. Mst Narangi then went inside the room of Gokul Chand and tried to rescue him and told the accused persons not to beat Gokul Chand and she again voluntered to show the ornaments of Gokul Chand's wife Mst. Bhanwari and she pointed to the place where they were concealed.

(3.) The accused persons then dug a hole in the ground and took out the ornaments of Mst. Bhanwari also. After taking out the golden ornaments of Mst. Bhanwari which too were weighing about 11 tolas, they again went inside the shop of Poonam Chand and asked him to show where two and half maunds. Silver was lying because as per them he was possessed of that quantity of silver. Poonam Chand told them that he is not possessed of two and half maunds silver whereupon, accused Rajesh aimed his pistol towards Poonam Chand, and asked him either to disclose the place where the silver has been concealed or else he will kill him. When Poonamchand told them that no silver was there the accused Rajesh fired his country-made pistol of 303 bore and that fire hit Poonamchand. Poonamchand immediately fell down on the ground and succumbed to his injuries It is alleged that the accused who was armed with pistol was accused Rajesh & one of the accused who gave beating to Mst. Narangi Gokulchand & Poonamchand with the arm of the cot was accused Rampal. The others, who were there, were helping them in beating and taking a search of the house but they could not be identified. However, both these witnesses, i.e., PW 7 Mst. Narangi and PW 8 Gokul Chand have categorically stated that they were more than five in number and when Poonam Chand fell down and succumbed to the pistol injury received by him, the accused persons left the place of the occurrence. Thereafter Mst. Narangi and Gokul Chand raised a hue and cry that Poonam Chand has died. On hearing this PW 5 Magh Singh, PW 14 Sankal Singh and PW 23 Fatta Ram and many others went to the place of the occurrence and found that all the belongings of Kalu Ram's family were scattered, in the Chowk, kitchen and the shop. Poonam Chand was lying dead in the shop and Mst. Narangi and Gokul Chand have also received number of injuries. On this, PW 14 Sankal Singh went to the Police Station, Abu Road and lodged a written report (Ex. P 38) at about 5 a.m. and on the basis of which, the formal FIR (Ex. P 39) was drawn.