VISHNU KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellant Vishnu Kumar has been convicted under section 325 I.P.C. but has been released on probation on his entering into a bond in the sum of Rs. 3000/- (Rupees three thousand) with a surety in the like amount for a period of two years by the learned Sessions Judge, Partapgarh by his judgment dated 2-2-1979. He has also been directed to pay a sum of Rs. 300/- (rupees three hundred) by way of compensation to the injured Shyamlal. Aggrieved of this he has come up in appeal.

(2.) The prosecution story briefly stated is like this. On 5th February, 1978, at 3.05 P.M., one Mangilal Joshi, resident of Dhanet Kalan lodged a First Information Report at Police Station Chittorgarh stating that on the night of 4th February, 1978 between 12 and 1 P. M, his son Shyamlal was at his well, where a Motor had been installed and a room had been construed, to keep watch, when the accused Hazari, Mohan and Vishnu came there armed with lathies. A torch light was thrown at Shyamlal, whereupon he came out of the room. He saw the three accused armed with lathies and as soon as he came out, the accused persons started beating him with lathies. Shyamlal raised cries which attracted. Hazarilal, Bansi Ram and Jamnalal, who came to his rescue. It was also stated in the F.I.R. that while beating Shyamlal the accused were saying that his (Shyamlals) father had filed a suit regarding the land against them and therefore, they would decide the matter there and then. After rescuing Shyamlal, Hazari Lal and others brought him to his house where some DESI treatment was applied to him and later he was taken to the Chittorgarh Hospital, he was said to be unconscious and after he regained the consciousness this report was being filed. After registering the case and carrying out investigation the police put up a challan against the three accused for offences under Section 307 and 323, I.P.C. The matter was, therefore, committed to the Court of Session. Charges under Sections 307, 325 and 323, I.P.C. and in the alternative for offences under sections 307, 325 and 323 read with section 34, I.P.C. as also a charge under section 447, I.P.C. were framed against them. The accused pleaded not guilty, therefore, they were tried. At the trial the prosecution examined 7 witnesses and produced a number of documents, the accused pleaded alibi and also produced 9 witnesses in support of their plea. One Shri Ugar Singh Tehsildar, Chittorgarh was examined as a Court witness. The learned Sessions Judge acquitted the other two accused of all the charges and also acquitted the present appellant Vishnu Kumar from the charges under section 307 and 447, I.P.C. but convicted him under section 325, I.P.C. and gave him the benefit of probation.

(3.) I have heard the learned counsel for the appellant and the learned Public Prosecutor and have gone through the record of the case. It has been urged by the learned counsel for the appellant that the learned Sessions Judge has disbelieved the major part of the prosecution case, he has disbelieved the alleged three eye witnesses, he has also, therefore, acquitted the other two accused holding that their presence at the spot was not established and their plea of alibi was believable. He has, however, convicted the present appellant Vishnu Kumar on the basis of testimony of the injured Shyamlal and in doing so he has ignored some salient features of the case. It those features and circumstances are taken into account, Shyamlals statement also becomes unreliable and the conviction of the present appellant could not have been based on it. The learned Public Prosecutor has, however, supported the finding of the learned Sessions Judge.