UCHI ALIAS GOPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a criminal appeal under Section 374(3) Cr. P.C. against the judgment dt. 26 -7 -1978 of learned Sessions Judge, Ajmer convicting and sentencing the accused appellants as under: Uchi alias GopalUnder Section 452 I.P.C. 2 years RI and a fine of Rs. 200/ - and indefault of payment of fine further 1 month'Rigorous Imprisonment;Under Section 324 for 2 years RI and a fine of Rs. 200/ - incausing simple hurt to default of payment of fine, furtherBheronlai 1 month' RI;Under Section 324 for 2 years RI and a fine of Rs. 200/ - and incausing simple hurt to default of payment of fine, 1 months RI;ShivratanUnder Section 27 of One years' RI and a fine of Rs. 100/ -inArms Act default of payment of fine 15 days RI;Under Section 394 5 years RI and a fine of Rs. 300/ - indefault of payment of fine, further 2months RI;Manna alias Brahma PrakashUnder Section 324 2 years' RI and a fine of Rs. 200/ - inrea d with Section 34, I.P.C., 114. default of payment of fine, further RI forI.P.C. for causing hurt to 2 months;Bheron LalUnder Section 324 for 2 years RI and a fine of Rs;200/ - in defaultcausing hurt to Shiv Ratan of payment of fine further 1 months RI;Under Section 394. I.P.C. 5 years RI and a fine Rs. 300/ - in default,further 2 months RI. All the sentences were to run concurrently.

(2.) BRIEFLY , the facts of the case are that PW 3 Bheru Lal lodged an FIR at Police Station, Sadar Kotwali Ajmer on 6 -10 1976, where in, it was stated that the appellants criminally trespassed in his shop when he was sitting there at about 5.45 p m. It was alleged that appellant Uchi alias Gopal demanded a sum of Rs. 1000/ -. He was armed with naked sword. Appellant Munna alias Braham Prakash said that if money is not paid, he will kill him. Appellant Uchi then gave two blows with sword to Bherulal When Shivratan s/o Bheru Lal attempted to intervene, two blows were given to him by Uchi with sword. A case was, therefore, registered under Sections 307/452 I.P.C. and Section 27 Arms Act. The appellants were arrested and after usual investigation, a charge sheet was submitted against them. Learned Magistrate committed the case to the court of Sessions. The charges under Sections 452, 394, 307 I.P.C. and Section 27 Arms Act were framed against Uchi. Charges under Sections 452, 394, 307/34 and 114 I.P.C. were framed against appellant Munna. The appellants denied the charges and claimed to be tried. Learned Sessions Judge after recording evidence of the prosecution, examining the accused persons under Section 313 Cr. P.C. and after hearing arguments of both the sides, found the accused appellants guilty and convicted and sentenced them as indicated above.

(3.) LEARNED Counsel for the appellants contends that the trial court has failed to appreciate the evidence produced on behalf of the defence. The prosecution witnesses have also failed to explain the injuries on the person of appellant Munna and one injury on the person of appellant Uchi. This, therefore, clearly shows that no reliance should be placed on the statements of so -called eye witnesses produced on behalf of the prosecution. It has been pointed out that the eye witnesses of the occurrence have been produced on behalf of the defence also, which have been ignored. It is further pointed out that DW 2 Shri V.D. Bhargava, Advocate had sent the information Ex. S/9 to the Superintendent of Police, Ajmer regarding the correct version of the occurrence under 'certificate of Posting' (Ex. S/A/10). D.W. 5 Kailash has stated that his shop is opposite to that of Bheru Lal and was closed on the day of occurrence. He has pointed but that Ex SA/11 is the copy of order of learned Munsif and Judicial Magistrate No. 3, Ajmer, where by charges against Bheru Lal and Shiv Ratan were framed under Sections 324 and 324/34, I.P.C. regarding the same occurrence. He, therefore, contends that all the evidence, documentary and oral, produced on behalf of the defence clearly prove that the version given in the FIR and by the witnesses produced on behalf of the prosecution is totally unreliable. He has pointed out that the learned trial court has failed to appreciate that a new case totally different from the one described in the FIR has been developed by the prosecution at the trial. In the FIR, both the appellants were shown to have criminally trespassed in the shop of Bheru Lal However, at the trial stage Bheru Lal has stated that Munna never entered his shop and when both the appellants came therefor the first time, Uchi was not armed with naked sword as mentioned in the FIR. Bheru Lal has stated in his statement that the sword was subsequently brought by Munna and given to Uchi, which casts serious doubt on the veracity of the prosecution case. It is pointed out that PW 7 Shiv Ratan says that appellant Munna entered the shop, but PW 3 Bheru Lal denies the same. There is thus, material contradiction in the statements of the eye witnesses produced on behalf of the prosecution. lt is further pointed out that the learned Sessions Judge has failed to appreciate that PW 3 Bheru Lal has stated that the sword was brought by appellant Munna after the demand of money was made, whereas the other witnesses have deposed that when threat was given and money was demanded, Uchi was armed with sword. This according to the learned Counsel, amounted to material inconsistency in the story of the prosecution, benefit of which ought to have been given to the appellants. Learned Counsel has also pointed out that the learned trial court has failed to appreciate that the place of occurrence is busy market, but not a single witness of the locality has been produced to support the prosecution story. Even, the Investigating Officer did not examine any shopkeeper of the market on the day of occurrence, i.e., 6 -7 -1976 It was only on 11 -10 -1976 that he examined PW 8 Keshav, PW 11 Ram Kishan and PW 4 Padam Chand. These witnesses have deposed on oath that their statements were not recorded by the Police. This, therefore, shows that the Investigating Officer has wrongly shown to have recorded their statements and thus, the investigation has not been conducted fairly. It is contended that the prosecution has produced only the interested witnesses. PW 5 Bhanwar Lal is the Muneem of Bheru Lal, PW 6 Satya Prakash is brother -in -law of Shiv Ratan, who is son of Bheru Lal. PW 1 Prabha Chand, PW 2 Suresh Chand and PW 6 Satya Prakash are friends and PW 10 Shrigopal is on inimical terms to the accused. Therefore, their testimony should have been viewed with caution and ought to have been corroborated by the independent witnesses. It is pointed out that PW 2 Suresh Chand and PW 1 Prabha Chand as per their own version are interested witnesses as they are shown to be the chance witnesses. They are interested in PW 3 Bheru Lal is also evident from the fact that they were present on 6 -10 1976 at the time of occurrence and also on 7 -10 1976 when the site plan was prepared and again on 25 -10 -1976 when the alleged recovery of the sword was made. However, the learned trial court has not believed the recovery of the sword. Therefore, the testimony of these witnesses itself becomes doubtful. Even though PW 1 Prabha Chand and PW 2 Suresh Chand were examined in the court on 25 -8 -1977, but they were present in the court on 27 -9 -1977 also when PW 3 Bheru Lal was examined. It is, therefore, urged that the trial court has erred in holding the accused appellants guilty and' they deserve to be acquitted.