ORDER :

1. The petitioners convicted by Court of Judicial Magistrate (First Class), Rashmi, District Chittorgarh in Criminal Regular Case No.36 of 1998 vide judgment dated 07.09.2001 and his conviction and sentence having been confirmed vide judgment dated 10.09.2002 by the appellate court of Additional Sessions Judge No.1 Chittorgarh in Criminal Appeal No.56 of 2002 punishable under Section 341, 323 read with 34 and 394 read with 34 of the Indian Penal Code, 1860 (for short “the IPC”) has filed the present revision petition before this Court.

2. The facts as available on record are that a First Information Report (ExP-1) dated 10.01.1998 was registered by Complainant Ogar Singh (PW-1) at Police Station Rashmi, District Chittorgarh to the effect that on 08.01.1998, while returning after purchasing 2 Kgs. of fishes from Hafiz Khan at Arani Pond, complainant and his companion Bhagwat Singh were intercepted by Ganesh, Magniram and Radheyshyam near wall of the pond. They demanded the fishes, but complainant refused to hand it over. On this, Ganesh Jat snatched the fishes from complainant, all the three accused beat the complainant and his friend Bhagwat Singh with bamboo sticks. Rs.5,000/- were also snatched from the pocket of pant of the complainant. Ganesh Jat also had a knife. Due to beating, both of them received many injuries. Hafiz Khan and Banshilal intervened and rescued them. Thereafter both of them returned to their village, but due to fever caused by beating they could not lodge FIR on time.

3. Charge-sheet was filed against all the three accused after completion of the investigation. Accused Ganesh died during the trial and accordingly the proceedings qua him stand abated.

4. The prosecution produced as many as 12 witnesses in support of the case. After trial, the trial court convicted Magniram and Radheyshyam for offence punishable under Section 341, 323 read with 34 and 394 read with 34 of the IPC and sentenced them to undergo imprisonment for a period of 7 days, 1 month and 6 month respectively for said offences along with fine and default clause.

5. In appeal, conviction and sentence awarded by the trial court was upheld.

6. Learned counsel for the petitioners has raised the argument that the story built by the prosecution on the basis of the complaint is concocted. In fact no such incident had taken place. It is alleged that there are serious defects and anomalies in deposition of complainant Ogar Singh (PW-1) and both independent eye-witnesses Banshilal S/o Shivji (PW-8) and Hafiz Khan (PW-10), who did not support the prosecution version.

7. Witness Bherulal (PW-6) and Bhagwanlal (PW-7) in their statements recorded in the court denied recovery of alleged looted cash amount of offence from Magniram in their presence. They were declared hostile. Similar was position in statements of Ramlal (PW-) and Pappu (PW-12), who also did not support prosecution version. They were also declared hostile and cross-examined by the prosecution.

8. As per the prosecution case, accused Ganesh Jat was carrying a knife, however, there was nothing either in the complaint or in the evidence brought on record that the same was ever used and it has not even been recovered during the trial. Further, recovery of Rs.2,000/- at the instance of accused Magniram was also seriously doubtful as both witnesses of said recovery have been declared hostile and no investigation was carried out recording the remaining looted cash amount.

9. It is further argued that both the courts below have failed to appreciate evidence in proper perspective and have wrongly recorded conviction. Hence, he prayed to set aside the judgment of conviction and sentences imposed by the courts below. Lastly, it is prayed that in view of legal infirmities in judgment of the trial court as also the appellate court, the petitioners are entitled to be acquitted, he contended.

10. On the other hand, learned Public Prosecutor submitted that entire prosecution version has been duly supporte