- (1.) TO question validity of the judgment dated 7.7.2003, passed by learned Additional Sessions Judge (Fast Track), Hanumangarh in Sessions Case No. 131/2002, this appeal is preferred.
(2.) BY the judgment impugned, learned Additional Sessions Judge convicted the accused appellants for the offence punishable under Section 302 read with Section 34 IPC and sentenced for life term with fine of Rs. 1000/ - each and further to go one month's simple imprisonment in even of default in depositing the fine. Learned Additional Sessions Judge also convicted the accused appellants for the offence punishable under Section 449 IPC and sentenced to undergo life imprisonment with fine of Rs. 1000/ - each and in default to further undergo one month's simple imprisonment. As per the record available, the prosecution case is that one Shri Kewal Singh son of Shri Mahendra Singh lodged a first information report at Police Station Peelibanga at 3:00 PM on 31.7.2002 with assertion that on 30.7.2002 at 7:00 PM accused Chhinda @ Gandhi and his brother Shambhu Bajigar came to his house armed with lathis and assaulted Harbans Singh, uncle of the complainant. The first lathi blow was given by Shambhu and on his falling down Gandhi too gave a lathi blow at his head and the back. At the time of incident complainant Kewal Singh, his father and his mother were also said to be present at the spot. As per the first information report, injured Harbans Singh was taken to hospital at Peelibanga and then he was referred for treatment to Hanumangarh hospital. Looking to his serious condition he was then taken to Bikaner hospital. A case accordingly was lodged under Sections 452 and 307/34 IPC. On death of Harbans Singh in the evening of 31.7.2002, allegation of commission of offences under Sections 449 and 302 IPC was also added and after usual investigation a charge sheet as per provisions of Section 173 Cr.P.C. was submitted before the competent court against the accused appellants. The case then was committed to the Sessions court and during the course of trial statements of 14 witnesses were recorded to support the prosecution case and for the same purpose 31 articles were exhibited. The accused appellants were put forth for examination as per provisions of Section 313 Cr.P.C. and they also defended themselves by producing DW -1 Swaroop Singh and DW -2 Meeto in witness box. In defence, nine articles were exhibited. Learned trial court, after considering the evidence available on record, convicted the accused appellants and sentenced them in the terms referred in preceding paras.
(3.) WHILE assailing validity of the conviction recorded, the arguments advanced by learned Counsel for the appellants are that: (1) the first information report (Ex.P/11) refers involvement of only two persons viz. Shambhu and Gandhi with the incident, but Pappu @ Patwari was included as an after thought at a belated stage and this factum makes the entire prosecution case unconvincing; (2) the occurrence of the alleged incident took place on 30.7.2002 at 7:00 PM whereas the first information report was lodged on 31.7.2002 and that too at 7:00 PM, i.e. after a lapse of 24 hours, but by making certain interpolation, the time of lodging the first information report was changed from 7:00 PM; (3) the first information report sent to the Magistrate on 1.8.2002 at 2:40 PM though the police station is just at the distance of one kilometer from the place of occurrence and this delay is absolutely unexplained; (4) immediately after occurrence of the incident police reached at the hospital but did not try to record statements of PW -11 Kewal Singh or any other witness though even injured Harbans Singh at first instance was examined by PW -2 Dr. Hariom Bansal; (5) there was no repetition of blows by any of the accused and, therefore, charge against them in no case travels beyond Section 326 IPC; (6) the lathis recovered on basis of disclosure made by the accused appellants were not having any blood stains and as per site plan Ex.P/12 and Ex.P/12 -A no blood was found at the place of incident, thus, as a matter of fact the prosecution case is quite doubtful; and (7) no effort was made by any of the person said to be present at the time of occurrence to rescue the deceased from the assailants.;