RAJU ALIAS RAJKUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appeals and revision petition have been filed against the judgment dated 12.9.2003 passed by Addl. District Judge (Fast Track), Sriganganagar, by which he convicted accused Raju alias Raj Kumar s/o Mohan Lal under sections 449, 302 IPC and section 3/25, 27(2), Arms Act, and accused Sonu alias Sohan Lal s/o Sita Ram under sections 449, 302/114 IPC and sentenced each accused under section 449 IPC to undergo rigorous imprisonment for ten years and fine of Rs. 500/-, in default of payment of fine to further undergo six months' simple imprisonment and under sections 302, 302/114, sentenced to life imprisonment and fine of Rs.1000/-, in default of payment of fine to further undergo one year's simple imprisonment, and accused Raju was further sentenced under section 3/25, Arms Act to undergo three years' rigorous imprisonment and fine of Rs.300/- and in default of payment of fine to further undergo three months' simple imprisonment and under section 27(2), Arms Act, to undergo seven years' rigorous imprisonment and fine of Rs.300/-, in default of payment of fine to further undergo three months' simple imprisonment, however, acquitted accused Raju alias Lala alias Lalit s/o Brijlal, Sandeep s/o Shrawan Kumar and Ravi Kumar s/o Ram Gopal from the offences under sections 302/114, 302/109 and 120-B IPC. All these appeals and revision arise out of common judgment, hence, they are being decided by this common judgment.

(2.) Brief facts of the prosecution case are that injured Anil gave dying declaration Ex.P/35 on 23.12.2001 at 6.40 p.m. to SHO PW.17 Arvind Kumar at Government Hospital, Gajsinghpur and alleged that on 23.12.2001 at 6.00 p.m., accused Raju and Sonu came at Jat Hostel and told him that he (Anil) has threatened Ravi to not to go in a particular street, on which he told that he had not threatened Ravi, then both of them told that let us compromise and thereafter, accused Raju fired on him by country made pistol, which hit on his right side of neck. At that time, Rakesh, Satbir, Nemichand, Praveen and Daulat Ram were there and out of them, Satbir, Nemichand and Rakesh took him to hospital. On this dying declaration (Parcha Bayan), a case was registered under sections 452, 307, 336 read with section 34 IPC and as on the very day, injured Anil Kumar died at 9.30 p.m., offence under section 302 IPC was added and after completion of investigation, challan was filed against all the five accused persons under the aforesaid offences in the Court of Judicial Magistrate, Padampur. The case was committed to the Court of Additional Sessions Judge, Karanpur and charges were framed against accused Ravi Kumar under sections 120-B and 302/114 IPC, accused Sandeep Kumar and Raju alias Lala alias Lalit Kumar under sections 120-B, 302/109 and 302/114 IPC, accused Sonu alias Sohan Lal under sections 120-B, 449, 302/109 IPC and accused Raju alias Rajkumar s/o Mohan Lal under sections 302, 449, 120-B IPC and section 3/25, 27(2), Arms Act. After recording some evidence, the case was transferred to ADJ (Fast Track), Sriganganagar. Prosecution examined eighteen witnesses and defence has examined one witness. After hearing arguments, three accused-persons have been acquitted and two accused-appellants have been convicted and sentenced as aforesaid.

(3.) Learned counsel for the accused-appellants argued that so called dying declaration. Ex.P/35 was neither made by deceased nor is in accordance with law and the statements of so called eye-witnesses are full of contradictions and improvements and cannot be believed, conduct of alleged eye-witnesses is unnatural and prosecution has intentionally suppressed FSL Report and prosecution has failed to prove any case against accused persons, even then the lower court has committed error in convicting two accused-appellants, hence, their appeal may be accepted and they may be acquitted of the charges. On the other hand, learned counsel for the complainant and the Public Prosecutor argued that the lower court has given cogent reasons for conviction, and judgment convicting two accused-appellants is in accordance with law and further argued that the prosecution has proved beyond reasonable doubt the case against rest of three accused persons but lower court has committed error in acquitting three accused-persons, hence, appeal of the accused-appellants be dismissed and rest of the three accused-persons may be convicted of the charges levelled against them.