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2012 DIGILAW 900 (RAJ)

Radhey Shyam v. State of Rajasthan

2012-04-11

NISHA GUPTA

body2012
JUDGMENT 1. - These revision petitions have been filed against the judgments of the appellate Court whereby the conviction and sentence of the present petitioners under Section 147, 452 and 323, 149 have been challenged. The petitioners Radhey Shyam and others, have been convicted for the offences under Section 147, 452 and 323, 323/149 Indian Penal Code and benefit of Probation of Offenders Act has been given and the compensation has also been awarded to Yogesh injured. Juvenile Deepak Sharma has been convicted by the Principal Magistrate, Juvenile Court and has been sentenced under Sections 147,323 and 447 Indian Penal Code and he has been given benefit of Section 15(1)(A) of the Juvenile Justice Act. 2. Brief fact of the case are that Hari Shanker lodged a written report on 3.5.1992 at Police Station Kotwali Jaipur stating therein that Yogesh was sitting behind his house. Petitioner Radhey Shyam and others, have entered into house after having cricket bat and knife in their hands. They assaulted Yogesh, who was shifted to the hospital. On this information, F.I.R. has been registered for the offences under Sections 147, 462, 323 Indian Penal Code After usual investigation, charge-sheet was filed. Seven witnesses have been produced in support of the prosecution case. The statement of the accused was recorded under Section 313 Criminal Procedure Code One witness has been produced in defence. 3. After hearing the parties, the trial Court has convicted the present petitioners and given benefit of Section 4(1) of the Probation of Offenders Act and Section 15(1)(A) of the Juvenile Justice Act and appeals have also been dismissed, hence these revisions. 4. The contention of the learned counsel for the petitioners is that conviction is bad in law as the Investigating Officer has not been examined in support of the prosecution and he has placed reliance on the judgments reported in the cases of Bhopal Singh & Ors. v. State of Rajasthan, 1989 (1) RLR 492 , and Pooran & Ors. 4. The contention of the learned counsel for the petitioners is that conviction is bad in law as the Investigating Officer has not been examined in support of the prosecution and he has placed reliance on the judgments reported in the cases of Bhopal Singh & Ors. v. State of Rajasthan, 1989 (1) RLR 492 , and Pooran & Ors. v. The State of Rajasthan, 1993 Cr.L.R. (Raj.) 393 where it has been held that no-examination of Investigating Officer is a serious infirmity, in the facts and circumstances of the case, the examination of the Investigating Officer was essential and, inference has been drawn against the prosecution for non-production of the Investigating Officer, but in the present case, there seems to be no infirmity in non-production of the Investigating Officer, as the injured himself has been examined and he has stated categorically about the incident. The complainant has also corroborated the prosecution story. The other witnesses, who are the natural witnesses Niranjan Joshi, Jaggu and Rajesh Kumar jain, have also supported the prosecution story and this occular evidence has been further corroborated by the evidence of Dr. Setal Jain and nothing could be rebutted by DW-1 Madan Lal who has only given a negative evidence that no incident has taken place in his presence. Hence looking at the above, non-production of the Investigating Officer could not be termed fatal in the facts and circumstances of the present case. 5. It was stated that the site plan has not been proved in the absence of statement of the Investigating Officer. The learned Public Prosecutor has submitted that PW-1 Hari Sankar has proved the site plan and the motbir witness PW-6 Rajesh Kumar has also proved the site plan. Hence it cannot be inferred that the site plan was not proved in the case and no objection has been raised during the cross-examination of these two witnesses in regard to preparation of site plan. Hence the contention of the petitioners is unacceptable. 6. It has also been stated that there are material discrepancies in the time of occurrence. F.I.R. (Ex.P-1) has been lodged by PW-1 Hari Sanker with the narration that incident has taken place at about 5 in the evening. Hence the contention of the petitioners is unacceptable. 6. It has also been stated that there are material discrepancies in the time of occurrence. F.I.R. (Ex.P-1) has been lodged by PW-1 Hari Sanker with the narration that incident has taken place at about 5 in the evening. In his statement, Hari Shankar has stated that the incident has taken place at 5.15 in the evening and Yogesh has stated that the incident has taken place at 5 in the evening and other witnesses have also stated so. Hence, there is no contradiction regarding the time of occurrence. 7. The learned Courts below have considered the prosecution evidence and rightly arrived at the conclusion which needs no interference. 8. Hence, there is no merit in these revision petitions and the same are hereby dismissed.Revision Dismissed. *******