Paramjeet Singh, J.:-

CRM-68756-2012

1. Allowed, as prayed for, subject to all just exceptions.

CRR-3639-2012

2. Challenge in the present criminal revision is to the judgment dated 22.08.2012 passed by Additional Sessions Judge (I), Bhiwani whereby judgment of conviction and order of sentence passed against respondent no.6-Rishi Ram have been set aside and he has been acquitted of the charges framed against him whereas judgment of conviction against respondents no.2 to 5 has been upheld but they have been released on probation.

3. In brief, the facts relevant for disposal of instant revision are to the effect that on 22.05.2003, on getting a wireless message that Gajanand (PW 1) was admitted in General Hospital, Bhiwani, in injured condition, the police party reached the hospital. The police party, after obtaining the opinion of the doctor, recorded the statement of Gajanand. Gajanand reported that he is a resident of village Sirsa Ghoghra. He is an employee of electricity department. On 21.05.2003, at about 7.00 p.m. While he was on his way from his fields to his house and reached near the canal, accused Rishi Ram, Pawan Kumar, Hanuman and Jai Bhgwan waylaid him. Rishi Ram was armed with 'gandasi' and Pawan Kumar was armed with 'lathi'. Rishi Ram gave a 'Lalkara' that they would teach him a lesson for constructing a house on their plot. Rishi Ram gave a 'gandasi' blow on his left arm. Pawan gave a lathi blow on his chest. Hanuman gave him fist blows. Chiman, Sanjay and Ramdhari also joined them and gave him fist blows. He raised alarm, which attracted Ratipal and Ram Charan, who rescued him from the assailants and accused left the spot. On his statement (Ex.PW 1/A), DDR No. 11 dated 22.05.2003 was recorded and on 24.05.2003, formal FIR was lodged. The investigation was set into motion. After investigation, the police filed the challan.

4. In support of its case, the prosecution examined complainant-Gaja Nand as PW 1, Ram Charan as PW 2, Dr. Dara Singh as PW 3 and ESI Surjeet Singh as PW 4.

5. Statements of accused under Section 313 Cr.P.C. were recorded. All the incriminating evidence appearing against the accused was put to them. They denied the same and pleaded false implication. In their defence, the accused examined Rati Pal as DW 1, Gautam Kumar as DW 2 and Sube Singh as DW 3.

6. The trial Court, vide judgment dated 02.07.2010, convicted all the accused under Sections 148, 323 and 324 read with Section 149 of the Indian Penal Code (for brevity, 'IPC') and vide order dated 03.07.2010 sentenced them to undergo as under:

7. Against that, respondents no.2 to 5 and respondent no.6 filed two separate appeals before Additional Sessions Judge (I), Bhiwani, who allowed the appeal filed by accused-Rishi Ram (respondent no.6) and acquitted him of the charges framed against him and affirmed the conviction of remaining accused, however, set aside the order of sentence and released them on probation. The findings recorded by the lower Appellate Court are as under:

"19- As per the prosecution, the occurrence had taken place on 21.5.2010 at about 7.00 p.m. Accused Rishi Ram has taken the defence that he was not even present at the place of occurrence. He has examined the Sarpanch of the village. However, the trial Court has brushed aside the testimony of defence witness without any cogent reason. The trial court has also overlooked the fact that there was enmity between the parties as the complainant had been convicted under section 307 IPC at the instance of the accused. On the other hand, accused have admitted the occurrence, but they have taken the stand that only Hanuman and Pawan were involved in the occurrence. In these circumstances, I am of the considered view that the presence of Rishi Ram was doubtful at the spot. There is a great tendency among people to implicate those who are in government job. This is done to ruin the opponents.

20- Having considered the evidence on the record, I am of the considered view that whereas the conviction

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