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Rajasthan High Court · body

2008 DIGILAW 1586 (RAJ)

Bharat Mal Meena v. State of Rajasthan

2008-07-01

MAHESH CHANDRA SHARMA

body2008
Honble SHARMA, J.–Since the controversy involved in all the three criminal appeals, arise out of the same FIR number and same Judgment, hence, they are being decided by this common Judgment. (2). By filing instant criminal appeals under section 374 Cr.P.C., the accused appellants have challenged the Judgment of conviction and sentence dated 31.7.1986 passed by learned Sessions Judge, Jaipur District, Jaipur (for short `the learned trial Court) in Sessions Case No. 14/1983, whereby the learned trial Court convicted and sentenced the accused appellants as under: S. 326 IPC (Accused appellant Sawai Singh): Four years Rigorous Imprisonment, Rs. 500/- fine. In case of default in payment of fine, he shall undergo six months Rigorous Imprisonment. S.326/149 IPC (Accused appellants Onkar, Bhagota, Bharatmal and Bhalla): Two years Rigorous Imprisonment, Rs. 300/- fine. In case of default in payment of fine, they shall undergo two months Rigorous Imprisonment. S. 323/149 IPC (Accused appellant Sawai Singh, Onkar, Bhagota, Bharatmal & Bhalla): Three months Rigorous Imprisonment, Rs. 200/- fine. In case of default in payment of fine, he shall undergo one month Rigorous Imprisonment. S. 147 IPC (Accused appellants Sawai Singh, Onkar, Bhagota, Bharatmal & Bhalla): One year Rigorous Imprisonment. All sentences were ordered to run concurrently. (3). Brief facts of the case, as set up by the prosecution are that on 29.3.1982, complainant Babu Singh, submitted a written report at P.S. Pragpura, alleging therein that yesterday at about 4:00 PM, there was not exchange between accused Sawai Singh and accused party. Thereafter when Babu Singh, Bajrang Singh started accused persons namely; Sawai Singh, Onkar, Dhansi, Gyarsa, Bhagata, Bharatmal, threw stones on them, the result of which Bajrang Singh sustained stone injury. When Ghasi Singh came to know about the injury of Bajrang Singh he came on spot, Sawai Singh gave farsi blow on his head due to which Ghasi Singh fell down. Bharat Lal Meena gave lathi thinsa to Babu Singh, Bhagata caught hands of Babu Singh and other accused persons gave beating to him. (4). The police on the basis of this written report, registered an FIR for the offence under sections 324, 147, 148 and 149 IPC and started investigation. (5). The police after investigation submitted challan against the accused persons for the offence under Sections 147, 149, 336, 307 and 326 IPC. (6). The learned trial Court framed the charges against the accused appellants. (5). The police after investigation submitted challan against the accused persons for the offence under Sections 147, 149, 336, 307 and 326 IPC. (6). The learned trial Court framed the charges against the accused appellants. They pleaded not guilty and claimed to be tried in the matter. (7). The prosecution in support of its case produced as many as 11 witnesses and certain documents were exhibited. Thereafter, the statements of the accused appellants u/S. 313 CrPC were recorded. (8). The learned trial Court after hearing both the parties convicted and sentenced the accused appellants vide Judgment 31.7.1986 as mentioned above. The accused appellants being aggrieved with the impugned Judgment of conviction and sentence have preferred the instant criminal appeal. (9). Mr. A.K. Gupta, learned counsel appearing for accused appellants Bharat Mal Meena and Baldev @ Balla, submits that the prosecution has failed to give explanation about the injuries that where accused persons sustained injuries during occurrence. He submits that prosecution witnesses have made improvements and contradictions in their testimony. He submits that PW.2 Pooran Mal has not supported the case of the prosecution and has been declared hostile. He submits that the presently accused appellants have falsely been implicated by the police. Lastly he submits that the story of prosecution regarding place of occurrence is absolutely doubtful because as per the site plan prepared by the I.O., the occurrence took place in front of the house of accused Sawai Singh and blood was found there on the spot. The prosecution witnesses during their evidence in trial changed the place of occurrence and stated that occurrence took place near shop of one Madan. In this way, the prosecution witnesses have changed the story and place of occurrence which makes whole prosecution story doubtful and no reliance can be placed on such evidence. Thus, the learned trial Court has erred in convicting and sentencing the accused appellants. (10). Mr. G. Bardar, learned counsel appearing for accused appellants namely; Onkar and Bhagota submits that PW. 2 Pooran Mal has not supported the case of the prosecution and has been declared hostile. He submits that PW. 6 Harikishan has admitted in his cross-examination that he had not seen any quarrel between the parties. He submits that rest of the alleged eye witnesses are interested persons and there are material contradictions and inconsistencies in their statements. 2 Pooran Mal has not supported the case of the prosecution and has been declared hostile. He submits that PW. 6 Harikishan has admitted in his cross-examination that he had not seen any quarrel between the parties. He submits that rest of the alleged eye witnesses are interested persons and there are material contradictions and inconsistencies in their statements. He submits that the prosecution has failed to give explanation about the injuries that where accused persons sustained injuries during occurrence. he submits that the story of prosecution regarding place of occurrence is absolutely doubtful because as per the site plan prepared by the I.O., the occurrence took place in front of the house of accused Sawai Singh and blood was found there on the spot. The prosecution witnesses during their evidence in trial changed the place of occurrence and stated that occurrence took place near shop of one Modan. In this way, the prosecution witnesses have changed the story and place of occurrence which makes whole prosecution story doubtful and no reliance can be placed on such evidence. He submits that appellants have wrongly been convicted with the aid of Section 149 IPC. He submits that a cross case regarding same occurrence is pending against the complainant side which is clear from the statement of PW.3 Babu Singh and PW. 9 Kishorilal, A.S.I. Thus, the learned trial Court has erred in convicting and sentencing the accused appellants. (11). Mr. R.P. Singh, learned counsel appearing for accused appellant Sawai Singh submits that the prosecution has suppressed the genesis of occurrence. He submits that the prosecution witnesses are interested one. He submits that the learned trial Court misconstrued the law on the point of injuries of accused received during the same occurrence. The appellant received injuries on his arm, back, knee and a Dharia was plied on him which created real and reasonable apprehension of death or grievous hurt. He submits that as per PW. 7 Raghuveer Singh, I.O. and site plan Ex. P. 1, blood was found at a distance of 10 steps in-front the house of appellant but prosecution witnesses changed the spot during trial depositions as near Madans shop. He submits that Babu Singh deposed to have been hurt in the occurrence but no M.L.R. of his name was filed. He cannot be attached that worth or weight. P. 1, blood was found at a distance of 10 steps in-front the house of appellant but prosecution witnesses changed the spot during trial depositions as near Madans shop. He submits that Babu Singh deposed to have been hurt in the occurrence but no M.L.R. of his name was filed. He cannot be attached that worth or weight. He submits that the prosecution witnesses have made improvements, omissions and contradictions in their testimony. Lastly, he submits that PW.2 Pooranmal. Thus, the learned trial Court has erred in convicting and sentencing the accused appellant. (12). All the learned counsel appearing for the accused appellants jointly submit that PW1 Mahaveer Singh is not an independent witness. They further submit that the appellants are aged one and sole earner of their family. Mr. Gupta, submits that appellant Bharatmal Meena is a government servant. Thus, this Court while deciding present appeals, ought to have taken lenient view. (13). Per contra Mr. B.N. Sandhu, learned PP submits that the learned trial Court has rightly convicted and sentenced the accused appellants. Thus, no interference is required to be made in the Judgment passed by learned trial Court. (14). I have heard learned counsel for the accused appellants as well as learned PP for the State and carefully gone through the entire material made available to me. (15). A bare perusal of the evidence clearly reveal that the prosecution witnesses have made improvements and contradictions in their testimony regarding place of occurrence as also eye witnesses of the occurrence, which makes the story and charge of the prosecution doubtful. Prosecution has also failed to explain the injuries which the persons from the side of accused, sustained. In view of above, the impugned Judgment passed by learned trial Court, in my considered view, requires modification. (16). Taking into consideration entire facts and circumstances of the case, I am of the opinion that the ends of justice would be met if the sentence is reduced to the period already undergone by them. (17). In the result, the appeals are partly allowed and the impugned Judgment of conviction and sentence dated 31.7.1986 passed by learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 14/193, is maintained but the sentence is reduced to the period already undergone by them. The fine imposed upon the appellants is also set-aside. The appellants are on bail, their sureties and bail bonds are discharged. The fine imposed upon the appellants is also set-aside. The appellants are on bail, their sureties and bail bonds are discharged. (18). The impugned Judgment of the trial Judge shall stand modified as indicated above.