DAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal under Section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 29th May, 2003 passed by the Additional District & Sessions Judge (Fast Track), Kama District Bharatpur in Sessions Case No. 50/2002 whereby accused-appellants Dan Singh son of Fateh Singh and Mohammada son of Ateh Singh have been convicted and sentenced as under:Dan Singh: Under Section 302 IPC Imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine to further undergo six months simple imprisonment. Mohammada: Under Section 302 IPC Imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine to further undergo six months simple imprisonment. Under Section 3/25 2 years rigorous imprisonment and Arms Act fine of Rs.1,000/-, in default of payment of fine to further undrgo six months simple imprisonment.

(2.) Briefly stated, the facts are that PW-4 Ashu son of Sher Khan complainant submitted a written report on 17.9.1995 at 3.15 p.m. (Ex.P-4) in the police station Kama with the averments that on the day of incident at about 10.00 a.m. in the morning, his father Sher Khan was taking care of crops in the field and at that time accused appellants Dan Singh and Mohammada were found taking the crops of Jwar and Bajra and on raising an objection to it and further on being told by the deceased to them that the deceased had taken the case and won upto the level of Board of Revenue, Ajmer, therefore, they should not do injustice to him. On hearing the objection both the accused appellants, namely; Dan Singh and Mohammada shouted and called Rassan, Dunda son of Fateh Singh, Safat son of Dan Singh, Deenu, Ajji son of Dan Singh, Ghuggan son of Fateh Khan Mev and Jhejhpuri Nijjar son of Ghuggan Mev to kill his father. All the above persons with the common intention came there with deadly weapons like lathi, ballam, pharsa and guns along with cartridges. The accused Mohammada and Dan Singh opened fire at deceased Sher Khan which hit the deceased in his left hand. The pallets thereof entered at the back of deceased. On account of gun fire injury caused by 3 pallets, Sher Khan, the father of the complainant, fell down and died at the spot. It was also alleged that the incident was seen by Islam and Saheb Khan. It is also stated that the dead-body was brought by them in Kama Hospital. The post-mortem on the deadbody be got done and accused be dealt with according to law without any further delay. On the above report FIR No. 148/95 under Section 302 IPC was registered and investigation commenced. During the course of investigation, formal FIR Ex.P-5 was registered. Ex.P-1 site plan of the incident with its descriptionwas drawn, Ex.P-2 inquest report,Ex.P-3 seizure memo of two empty cartriges of 12 bore were prepared on 17.9.95. Postmortem was performed on the dead-body of the deceased by PW- 5 Dr. Pramod Bansal. In the opinion of the doctor, death was the result of shock and hemorrhage due to injuries sustained on right lung, spleen and liver which was caused by fire arm and were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Accused Mohammada gave information which was recorded in Ex.P-13 and accused Dan Singh gave information which was recorded in Ex.P-15. In pursuance of the information given by the accused Mohammada on 15.2.1996 vide Ex.P-11 recovery of 12 bore country made gun was made in the presence of PW-13 Rehmat, the gun was recovered from a thatched house of accused, the site plan, memo of recovery of gun is Ex.P-12. No recovery could be made on the information given by accused Dan Singh under Section 27 of the Evidence Act on 4 1.10.1995 and 3.10.1995 respectively. Clothes of the deceased, one 12 bore K.F. Special Cartridge, one 12 bore Shaktiman express cartridge, 24 lead pellets and one 20 bore country made SBBL gun in sealed condition were sent to the FSL. On examination, it was found that the gun is serviceable fire arm but definite time of its last fire could not be ascertained. It was also found that the cartridges sent were not fired from 12 bore SBBL gun sent for examination. In relation to 24 lead pellets on examination, it was found that the same could have been fired from country made SBBL gun. No blood group on the articles could be determined. After completion of investigation chargesheet was filed against accused appellants Dan Singh and Mohammada. No charge-sheet was filed against the persons whose names were stated by the complainant in report Ex.P-4. The matter came up for trial in due course before the Additional District & Sessions Judge, Deeg who framed charge against the accused-appellant Dan Singh under Section 302 IPC and against accused-appellant Mohammada under Section 302 IPC and 3/25 of the Arms Act to which the accused denied and claimed trial. The matter was transferred subsequently to the court of Additional District & Sessions Judge (Fast Track), Kama who recorded the statement of 14 witnesses on producing them before the court by the prosecution and several documents were marked exhibits. After close of the prosecution evidence in the statement recorded under Section 313 Cr.P.C. both the accused stated that they were 5 falsely implicated in the case. Both the accused have further stated that they were not in the village and on 19.9.1995 they were informed that PW-4 Ashu and others gave beatings to Fajru and Hasan. Accused Mohammada has also stated that he lodged FIR against the complainant party.

(3.) After hearing final submissions, the learned trial court has convicted and sentenced the accused as indicated here-inabove vide judgment and order dated 29.5.2003. Hence, the present appeal has been filed.