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2012 Supreme(Raj) 278
(Rajasthan High Court)
Jaipur Bench
Vijendra @ Gorkha & Anr. Vs. State of Raj. (Kothari, J.)
HON'BLE RAGHUVENDRA S. RATHORE, J.
HON'BLE S.S. KOTHARI, J.
Vijendra @ Gorkha & Anr.
Versus
State of Rajasthan
D.B. Criminal Appeal No. 102 of 2005, decided on 29.02.2012
Gajanand Yadav, M.K. Kaushik with Subhash Sharma, for Appellants;
Javed Choudhary, P.P., for State;
Sushil Pujari for A.K. Gupta, for Complainant
Headnote:Penal Code, Secs. 302, 323 read with Sec. 34 — Basing conviction on the testimony of witnesses who are close relative — Produced no independent witness — Held — A witness is normally to be considered independent unless he/she springs from sources which are likely to be trained and ordinarily a close relation would be the last to screen the real culprit and fabely implicate on innocent person — For want of clinching evidence, the plea of alibi cannot be accepted — Only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate Court can interfere with the order of acquittal. (Paras 8, 16, 37)
Appeal partly allowed. State appeal and Revision dismissed.
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Appellant : Vijendra alias Gorkha
1. Under Section 302 IPC:
Life imprisonment and fine of Rs. 1000/-. In default of payment six months simple imprisonment.
2. Under Section 323 read with 34 IPC:
Six months simple imprisonment.
Appellant: Sumer Singh alias Dholia
1. Under Section 302 read with 34 IPC.
Life imprisonment and fine of Rs. 1000/- in default of payment six months simple imprisonment.
2. Under Section 323 read with 34 IPC:
Six months simple imprisonment.
All the sentences were ordered to run concurrently.
D.B. Criminal Appeal No. 349/2005, State of Rajasthan vs. Surendra Singh & another has been filed on behalf of the State under Section 378(1) and (3) Cr.P.C. challenging the acquittal of Surendra Singh alias Kaliya and Hazari Lal from the offences under Section 302 read with Section 34 and Section 323 read with Section 34 IPC in the aforesaid Sessions Case.
D.B. Criminal Revision No. 15/2005, Arun Kumar vs. State of Rajasthan and others has been filed under Section 397 read with Section 401 Cr.P.C. by Arun Kumar, the complainant, challenging the acquittal of the accused persons namely Surendra Singh alias Kaliya and Hazari Lal in the aforesaid Sessions Case from offences under Section 302 read with Section 34 and Section 323 read with Section 34 IPC.
As all the aforesaid cases are against one judgment, they are being decided by this common judgment.
2. The facts of the case are that Arun Kumar S/o Shree Chand, resident of Satdiya submitted a written report Ext. P.1 on 10.5.02 to Sh. Zulfeekar Ali, S.H.O. Police Station Singhana at K.C.C. Hospital, Khetri alleging therein that on 9.5.02 he was in his `Chobara' and his elder brother Anil Kumar, Sarpanch was sitting in the back portion of his Haveli with Randheer. They were talking to each other. At about 10.00 P.M. he heard noises of his brother coming from the Haveli. He switched on the lights of the room. He saw that, armed with weapons, Vijendra alias Gorkha S/o Dayanand, Surendra S/o Dayanand, Sumer Singh S/o Dayanand, Suman W/o Vijendra alias Gorkha, residents of Satdiya, alongwith Hazari Lal, Mukul Singh and Chote Lal, sons of Gajanand, were beating his brothers. Randheer intervened and received injuries. He went to the spot where Bahadur and Kanwar Singh also arrived. The aforesaid persons also beat up his brother, Anil, who died as a result of the beating.
3. On the aforesaid report Ex. P.1 FIR No. 143/2002 for offences under Sections 147, 148, 149, 341, 323, 302 IPC Ext. P. 35 was registered and the police conducted investigations. During the investigations, the statements of witnesses were recorded. Arun Kumar and Randheer were got medically examined. The postmortem of Anil Kumar was got conducted. The police recovered clothes of the deceased Anil Kumar and bloodstained earth. Information was given under Section 27 of Indian Evidence Act by accused Hazari Lal, Vijendra Singh alias Gorkha, Sumer Singh alias Dholia and Surendra Singh alias Kaliya on which knives and lathis were recovered. The recovered articles were deposited in the Malkhana of Police Station Singhana and were subsequently sent for examination to FSL. On conclusion of the investigation, the police submitted a report under Section 173 Cr.P.C. against Vijendra alias Gorkha, Surendra alias Kaliya Sumer Singh alias Dholia and Hazari Lal for offences under Sections 302, 323 and 34 IPC. The learned Judicial Magistrate committed the aforesaid accused persons for trial to the learned Additional Sessions Judge, Khetri.
4. After hearing the parties, th
