SHOUKAT GHOSHI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SHOUKAT Ghoshi, Prashant @ Dabbu and Vishambhar, appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur, who vide judgments dated December 3, 2002 and March 11, 2004 convicted and sentenced them as under: Vishambhar: Under Section 302 IPC: To suffer life imprisonment and fine of Rs. 1000/ -, in default to further suffer one month simple imprisonment. Shoukat Ghoshi and Prashant @ Dabbu: Under Section 302/34 IPC: Both to suffer life imprisonment and fine of Rs. 1000/ -, in default to further suffer one month simple imprisonment.

(2.) IT is the prosecution case that on May 11,1994 at 11.45 PM at General Hospital Bharatpur informant Rakesh (PW. 2) handed over a written report (Ex. P -1) to SHO Police Station Kotwali Bharatpur stating therein that around 11 PM while his brother Hari Shankar @ Babbal was proceeding with the procession organised on the occasion of 'Parshuram Jayanti', some unknown youngesters arrived near the house of Indira Bansal Vakil and took Babbal to the chowk of Subrati Ghoshi. After sometime Babbal came rushing to the road in an injured condition and fell down. He was removed to hospital where he was declared dead. It was further stated that Om Prakash Gaur, Chidiya, Banti @ Sanjeev and Anil had seen -the assailants. On that report a case under Section 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and after completion of investigation charge sheet was filed against appellants Shoukat Ghoshi and Vishambhar only. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur. Charges under Sections 302 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. No witness in support of their defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants vide judgment dated December 3, 2002. After Prashant @ Dabbu was nabbed, separate charge sheet was filed against him and he was tried separately by learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur. Charges under Sections 302 and 302/34 IPC were framed against Prashant @ Dabbu, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Section 313 Cr.P.C., Prashant @ Dabbu claimed innocence. One witness in support of his defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced Prashant @ Dabbu vide judgment dated March 11, 2004. Since both these appeals relate to the incident occurred on May 11, 1994, we proceed to decide these appeals by a common judgment. We have heard learned Counsel for the appellants, learned Public Prosecutor and learned Counsel for the complainant.

(3.) LEARNED Counsel for the appellants criticised the impugned judgment from various angles and urged that the prosecution has suppressed the genesis of the incident therefore it can be inferred that the incident had not occurred in the manner as suggested by the prosecution. It was also contended that the incident had taken place all of sudden without any premeditation and so many persons were participating in the procession, therefore the charges against the appellants are not established beyond reasonable doubt. Moreso, no case under Section 302 IPC is made out against the appellants. It is also canvassed that appellants did not share common intention therefore the conviction under Section 302/34 IPC deserves to be set aside. Per contra, learned Counsel for the complainant, and learned Public Prosecutor, supported the finding of learned trial Judge and urged that appellants were rightly convicted and sentenced.