LAL CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Challenge in both the criminal appeals filed under Section 374 of the Code of Criminal Procedure on behalf of accused-appellants, namely, Lal Chand (Appeal No.385/2015) and Mahaveer (Appeal No.357/2015) has been made to the judgment and order dated 17.04.2015 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Baran, in Sessions Case No.36/2010 arising out of F.I.R. No.102/2010, Police Station Anta, District Baran for the offence under Sections 307, 34 of the Indian Penal Code, Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act of 1989') and Section 3/25 of the Arms Act, whereby the trial court convicted and sentenced the accused-appellants in the following manner:- <FRM>JUDGEMENT_165_LAWS(RAJ)8_2018_1.html</FRM>

(2.) Facts giving rise to these appeals are that one Ram Kumar (PW-24), Assistant Sub Inspector, Police Station, Anta, recorded a 'parcha bayan' (Exhibit P-21) of one Omprakash Meena on 02.05.2010 at 10:45 PM, and on that basis F.I.R. No.102/2010 (Exhibit P-22) was recorded at Police Station Anta, District Baran, for the offence under Sections 307, 34 IPC and Section 3(ii)(v) of the Act of 1989 in connection with an occurrence alleged to have taken place on 02.05.2010 at 07:55 PM. As per the 'parcha bayan', Omprakash Meena, the complainant, stated that he was resident of Lisadi and was serving as a salesman on the liquor shop situated in village of Lisadi'. On that date at about 07:55 PM, one Mahaveer Dhakad R/o Bamuliya, came there. He was drunk. Mahaveer demanded from the complainant an English wine of 'officers choice'. The complainant told him that by that time the shop was closed. Upon this, Mahaveer called Lal Chand Dhakad, who reached there in half-an-hour. Jagannath also came there with Mahaveer. Jagannath had 'jodala' in his hand and Lal Chand was armed with a 'katta' (country made gun). Lal Chand opened fire from 'katta', which hit on the right side of abdomen of complainant Omprakash, as a result of which blood started oozing out of his abdomen. It was further stated therein that Madan Mohan S/o Sitaram Meena and Jodhraj S/o Ramkalyan, both residents of Bamuliya, were also present, and they witnessed the occurrence. Mangilal S/o Ramkishan Meena brought him and got admitted in the hospital. It was further stated that had Mangilal brought him, he would have definitely died. It may be significant to note that Omprakash Meena during his treatment died on 22.05.2010 due to septicemia and cardiac and therefore, the police added the offence punishable under Section 302 of the IPC. A charge-sheet against the accused-appellants was filed for the offence under Section 302 read with Section 34 of the IPC, Section 3(1)(ii)(v) of the Act of 1989 and Section 3/25 of the Arms Act. Since the case was triable by the Court of Sessions, it was made over to the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran. Charges against the accused for the aforesaid offences were framed, which they denied and claimed trial. The prosecution produced as many as 28 witnesses and 26 exhibits to substantiate its case. The defence though produced 5 exhibits but did produce any witness. The trial court convicted and sentenced the accused-appellants in the manner indicated above. Hence, these two separate appeals have been filed on behalf of the accused-appellants.

(3.) Mr. Arvind Kumar Gupta, learned Senior Counsel for the accused-appellants, argued that the trial court has erred in law in recording the findings of conviction of the accused-appellants, which are contrary to the material placed on record and the same are based on surmises and conjectures. The 'parcha bayan' of Omprakash is said to be recorded by Ram Kumar (PW-24) on 02.05.2010 at 10:45 PM and on that basis the F.I.R. was registered by him on that date at 11:00 PM, yet the F.I.R. reached the area Magistrate at Anta, District Baran, on 04.05.2010 at 10:30 AM with a delay of two days. If he was taken to a private hospital for treatment, record of the same has been produced and therefore, an adverse inference ought to have been drawn against the prosecution that the deceased had died due to lack of proper treatment. This clearly proves that the F.I.R. is a concocted and fabricated document and that the allegations in the FIR are nothing but an afterthought. It is evident from the statement of Ram Kumar (PW-24) that no such 'parcha bayan' was given by Omprakash and rather he himself wrote the story afterwards, owing to which the registration of the FIR was delayed and the same reached the area Magistrate belatedly on 04.05.2010 at 10:30 AM. Ram Kumar (PW-24) has, in his cross-examination, admitted that he had arrested Jodhraj and Madan Mohan in the cross-case registered at the instance of the accused party. He also admitted that he found the car of accused Mahaveer in burnt and broken condition in the river adjoining the place of incident. Mukhtyar Ali (PW-10) has admitted that he had taken the photographs of the car as well as the burnt motorcycle vide Exhibit P-30 in the cross-case. The car was damaged.