2005 Supreme(Raj) 2953
RAJASTHAN HIGH COURT AT JAIPUR BENCH
F.C.Bansal, J.
Gopal & Ors. - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 1151 of 2002.
Decided On : 21-02-2005
For the Accused-Appellant:A.K. Gupta, Advocate.
For the State: S.N. Gupta, Public Prosecutor.
For the Complainant:Kamlendra Sihag for Biri Singh, Advocates.
Headnote:
Indian Penal Code, 1860 Sections 148, 307/149, 325/149, 324/149 and 323/149 - Appeal against conviction for the offences under sections 148, 307/149, 325/149, 324/149 and 323/149 Indian Penal Code - only 6 out of 14 persons named in the FIR were charged - witness who was injured gave statement as to the involvement and actions of M and G was found to be inconsistent and implausible - M supposedly given sword by U but U not charged and no charge proved against M and G - Remaining appellants not formed an unlawful assembly - Whether the injuries inflicted upon N were grievous and sufficient to cause death is not evidenced - no charge under Sections 307/149 and 325/149 is made out, only Section 324, Indian Penal Code remained applicable - Case of sudden fight resulting in simple sharp weapon injuries to N, caused by appellants S, R, H and D - Appellants G and M acquitted of all charges - Appellants R, H, S and D convicted under Section 324 Indian Penal Code and sentenced to period already undergone - Appeal allowed in part.
JUDGMENT
1. - The instant appeal is directed against the judgment and order dated 30.8.2002 passed by the 'earned Additional Sessions Judge (Fast Track), Jhunjhunu in Sessions Case No. 56/2001 whereby accused-appellants Gopal, Mahender Singh, Rajesh Kumar, Hajari, Shankarlal and Devaram have been convicted and sentenced each as under:- | U/s 148 IPC |
| R.I. for three years and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days. |
| U/s. 307/149 IPC |
| R.I. for ten years and a fine of Rs.1,000/-, in default of payment of fine to further suffer S.l. for one month. |
| U/s. 325/149 |
| R.I. for seven years and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days each. |
| U/s. 324/149 IPC |
| R.l. for the three years and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days. |
| U/s. 323/149 IPC |
| R.I. for one year and a fine of Rs.500/-, in default of payment of fine to further suffer S.l. for fifteen days. |
All the substantive sentences were ordered to run concurrently.
2. Briefly stated the facts of the prosecution case are that on 14.12.96 at about 11.30 a.m. PW11 Narendra Singh S/o Ummed Singh, by caste Rajput, R/o Kithana was going to the house of Indrapal from his house, when he reached near the shop of Dayanand situated in front of Gurdayal's house, accused Gopal caught hold of him from behind and thereafter the remaining appellants inflicted injuries with 'Sword' and 'Barchi' on his person. When PW12 Dalip Singh intervened to save Narendra Singh he was also caused injuries. The incident was seen by Leelu, Hanuman and Ummed Singh. Both the injured were taken to Chidawa hospital for treatment. PW12 Dalip Singh submitted written report Ex.P21 at PS. Chidawa at 8.00 p.m. on the same day. On the basis of written report Ex.P21 formal FIR Ex.P22 was registered and investigation commenced. On completion of investigation charge-sheet was filed against the accused appellants in the competent Court. In due course they came to be tried for the offences punishable under Sections 148, 307, 307/149, 323, 324 and 325 r/w Section 149 IPC. To prove these charges the prosecution examined as many as 13 witnesses. In their statement under Section 313 Cr.PC. the appellants pleaded innocence and false implication. In defence DW1 Ummed Singh was examined.
3. The learned trial Judge after hearing the final submissions, convicted and sentenced the accused appellants as indicated here-in-above.
4. I have heard the learned counsel for the accused appellants, learned Public Prosecutor for the State and have also perused the impugned judgment as also the prosecution evidence.
5. Learned counsel appearing for the accused appellants contended that it is a case of over-implication. In FIR allegations were made against 14 persons whereas charge-sheet was filed only against six persons. Learned counsel further contended that in view of the contradictory statements of PW11 Narendra Singh and PW12 Dalip Singh (both injured witnesses), involvement of appellant Mahendra Singh in the alleged crime cannot be held proved. As per the version of PW11 Narendra Singh while the remaining appellants were inflicting injuries on his person, appellant Mahendra along with Ummed came in a jeep, a sword was given to Mahendra Singh by Ummed and thereafter Mahendra Singh inflected injuries with sword on his neck and chest whereas as per the testimony of PW12 Dalip Singh, appellant Mahendra Singh was already with the remaining appellants. He did not state that appellant Mahendra had come in a jeep with Ummed. Ummed was named as one of the assailants in written report Ex.P21 but charge- sheet was not filed against him by the police. So far as appellant Gopal is concerned, it was stated by Narendra Singh and Dalip Singh that when the remaining appellants were causing injuries with their respective w
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