Sunil Kumar Garg, J. - (1.) This is an appeal on behalf of the accused-appellants against the judgment and order dated 25.3.1983 passed by the learned Sessions Judge, Bikaner in Sessions Case No. 69/81 by which he convicted each accused-appellant under section 459 IPC and sentenced each of them to undergo one year Rigorous Imprisonment.
(2.) It arises in the following circumstances:- On 16.9.1979 at about 9.00 a.m., PW 6 Meghraj lodged an oral report Ex.P/8 in the Police Station Gajner District Bikaner stating inter alia that he has been working as Munim with the Contractor Dayakisan in the village Guda for the last one and half year. Before one month, a dispute arose between him and accused-appellant-Sadul Singh over a watch and since then he and his men had enmity with him. On 15.9.1979 at about 9.00 p.m. he reached the village Guda where there is a house of Contractor Dayakishan, in which, PW 2 Tolaram was living as a tenant and after taking food he slept over the roof of that house. At that time, PW 3 Khemaram and PW 7 Leelsingh were also sleeping with him. At about 12.00 in the midnight, somebody called him then he asked, who is there. Then, at about 3.00 a.m. when he was slipping on the roof, he was beaten by somebody on his head, then he woke up and saw that accused-Sadul Singh, Safi Khan and Choriya, who were having lathies in their hands, were beating him. When he got up he was caught hold by accused-Sadul Singh and rest of the accused-appellants beat him severely. He and PW 7 Leelsingh made hue and cry, then PW 3 Khemaram went there and called PW 4 Purkharam. Thereafter, all accused- appellants ran away after jumping over from the roof. On this report, police registered the case and startled investigation. PW 6 Meghraj was got medically examined and his injury report is Ex.P/7, which shows that he received 22 injuries on his person and his X-ray report is Ex.P/2, which shows that he received fracture of proximal phalanx of left little finger. After usual investigation, police submitted challan against accused-appellants in the Court of Magistrate and thereafter, the case was committed to the Court of Sessions. On 11.3.1982, the learned Sessions Judge, Bikaner framed charge under section 459 IPC against the accused-appellants, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as ten witnesses and got exhibited some documents. Thereafter, the statements of accused-appellants under section 313 Cr.P.C. were recorded and one witness was produced in defence by accused-appellants. After recording evidence and conclusion of trial, the learned Sessions Judge, Bikaner came to the conclusion that accused-appellants have committed the offence under section 459 IPC and thus, vide his judgment and order dated 25.3.1983, the learned Sessions Judge, Bikaner convicted and sentenced each accused-appellant in the manner stated above. Against the said judgment and order dated 25.3.1983 passed by the learned Sessions Judge, Bikaner, the present appeal has been filed by the accused-appellants.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused-appellants:- 1. That in the present case, it has not been established by the prosecution as to who caused grievous injury on the person of PW 6 Meghraj out of three accused-appellants, therefore, in absence of the charge under section 34 IPC, they could not have been convicted under section 459 IPC. 2. That roof of the house does not amount to entry into the building and thus, no case for the offence under section 459 IPC is made out. Hence, conviction and sentence passed against the accused-appellants are liable to be set aside.;