S.C. Vyas, J. - (1.) This criminal appeal is directed against the judgment passed by 1st Additional Sessions Judge, West Nimar (Badwani) in S.T. No. 265/90 on dated 21.2.1994 whereby and wherein the appellants were found guilty for the offence punishable under sections 148 and 326 read with section 149 of the I.P.C. and sentenced with R.I. for one month and three years with fine of Rs. 1,000/- respectively. They have also been ordered to undergo further three months R.I. in default of payment of fine.
(2.) Short facts of the case are that on 12.7.1996 at about 6.00 p.m. in the evening Khema (P.W. 1) along with witnesses Bhatu, Rupsingh and Urfibai were coming from Rajpur weekly market and were going towards their village Umariya, when they reached near Umariya Phata then appellants came there. Appellant Bheemda was armed with an axe whereas other appellants were having stones in their hands. Appellant Bheemda assaulted on complainant Kema P.W. 1 and caused injury on his head by the axe. When witness Bhatu came to save Khema then Bheemda caused injury to him also on his head. When Urfibai came to save them then appellant Chandar Singh pelted stone on her and caused injury on her leg. Remaining appellants also pelted stones, which caused injuries to Khema and other persons. Then witness Kunwar Singh and Gulab etc. came there, seeing them appellants fled away from there. Khema (P.W. 1) lodged FIR Ex. P-1 at police station-Rajpur on the same day at about 6.55 p.m. Offence punishable under sections 147, 148, 341 and 307 was registered against the appellants and injured persons were sent for medical examination. One incised wound on the left ear of Khema was found for which X-ray examination was advised. Similarly one incised wound on the right frontal area along a contusion on the left forearm was found on the person of Bhatu and he was also referred for X-ray examination. On incised wound on left leg and a contusion of right side chest was found on the person of Urfibai. On X-ray examination fracture of frontal bone of Bhatu was found. Dying declaration of Bhatu was also recorded by Tehsildar, Badwani on 15 July. Witnesses were examined under section 161 of Cr. P.C. and after completing other formalities of investigation appellants were charge-sheeted before concerning Court. After committal they were tried by learned Additional Sessions Judge. During trial appellants pleaded innocence and false implication, but learned Sessions Judge found them guilty and convicted and sentenced them as aforesaid.
(3.) Learned Counsel for the appellants Senior Advocate Shri Z.A. Khan submitted that as per the allegations of prosecution the incident happened all of a sudden, without pre-meditation and, therefore, appellants could not be convicted with the help of section 149 of I.P.C. or for the offence punishable under section 148, I.P.C. He submitted that the prosecution witness was returning from a weekly market and they were intercepted in the way all of a sudden, as per prosecution story. He has further submitted that only appellant Bheemda @ Bheem Singh was having an axe in his hand and only against him prosecution alleged that because grievous hurt to witness Bhatu. Learned Counsel submitted that the statement of Bhatu was recorded by Tehsildar during investigation as dying declaration, but because he was alive, therefore, this statement can be used as his previous statement and in this statement he attributed his head injury to appellant Chandar Singh and stated that Chandar Singh was having an axe at the time of incident, whereas during his examination in the Court he stated that appellant Bheemda caused injury on his head by means of an axe. Learned Counsel submitted that this contradiction is fatal to the prosecution and on the basis of this material contradiction the story of the prosecution becomes fully doubtful.;