STATE OF RAJASTHAN Vs. LALDEEN

JUDGEMENT

(1.) THESE three appeals have been directed against the judgment of the learned Sessions Judge, Jodhpur dated 7.9.79 in Sessions Case No. 61/78 whereby he convicted accused Laldeen, Hazira, Nihaldeen s/o Mahendra Khan, Gafoor and Nihaldeen s/o Hakim Khan under Section 304 Part -II IPC, in the alternative, under Section 304 Part -II read with Section 149 IPC, and sentenced each of them to undergo rigorous imprisonment for 8 years. Accused Gafoor and Nihaldeen s/o Hakim Khan were also convicted under Section 324 IPC and accused Laldeen, Hazira and Nihaldeen s/o Mahendra Khan under Section 324/149 IPC and sentenced to two years R.I.

(2.) THE State of Rajasthan has questioned the acquittal of the accused persons under Section 302 IPC through D.B. Criminal Appeal No. 594/79 Accused Nihaldeen and Gafoor have preferred Appeal No. 455/79 and the other three accused Hazira, Nihaldeen s/o Mahendra Khan and Laldeen have preferred Appeal No. 453/79 challenging their convictions. All the. three appeals arise out of one and the same judgment and, therefore, they have been heard together and they are being disposed of by this common judgment.

(3.) THE learned Sessions Judge framed charges under Sections 148, 302, 302/149 and 324/149 against accused persons. Accused Nihaldeen s/o Hakim Khan and Gafoor were charged with the offence under Section 324 IPC also. All the five accused pleaded not guilty and claimed trial. The prosecution examined 14 witnesses. Out of them PW2 Ismail, PW 11 Kayamdeen and PW 13 Mehaideen are the eye -witness to the occurrence. Ismail and Mehardeen also sustained injuries in that occurrence. PW 3 Subhan Khan, PW 12 Bachukhan are also eye -witness who happened to be at the place of occurrence for some work. PW 1 Dr. M.L. Paniya had held autopsy on the body of Yarukhan and had prepared the post -mortem report Ex.P -1. PW 4 Hamdeen, PW 5 Kayamdeen s/o Iskhan, PW 6 Sikander and PW 7 Fakrekhan are 'motbirs' who were associated by the police during investigation. PW 8 Badriprasad had registered the case on receiving the statement of Kayamdeen from the Dy. S.P. PW9 Kishanlal and PW 14 Jalam Singh are the Investigating Officers. PW 10 Sultan Singh had taken sealed packets pertaining to this case to the Forensic Science Laboratory, Jaipur. Accused in their statements under Section 313 Cr. P.C. denied accusation. They examined four witnesses in defence. DW 1 Durg Singh has been examined to prove the plea of alibi of accused Nihaldeen s/o Hakim Khan, DW 3 Jamaluddin and DW 4 Mehmood Khan have been examined to support the defence version that the members of the complainant party had attacked them. DW 2 Hart Singh, Sarpanch of the village has deposed to have seen the site just after the occurrence. The learned Sessions Judge heard the arguments of both the parties. He held that Yarukhan had met homicidal death. He further held that the prosecution has not been able to establish the charge under Sections 302 or 302/149 IPC. Holding that the act of the accused fell in the third part of Section 299 IPC, he convicted all the five accused person's under Section 304 Pat -II read with Section 149 IPC. The learned Session Judge further found that accused Gafoor and Nihaldeen s/o Hakim Khan had caused hurt by sharp edged weapon to Ismail and Mehardeen. He, therefore, convicted them under Section 324 IPC, and the other three accused under Section 324/149 IPC.