- (1.) This judgment will dispose of the aforementioned appeals arising out of a common incident dated 16.3.1998 which had become the subject matter of FIR No. 45/98 registered under Section 395, 396, 307, 324, 323 and 120B IPC and 3/25 of the Arms Act, at Police Station Diggi District Tonk. Accused Ramjilal, Makkhan, Pappu, Sayra, Babu, Mahendra Soni, Kalyan Singh, Ram Singh and Birbal i.e. 9 persons had been set up for trial in the first instance. Vide judgment dated 12.8.2004 all the accused persons except Birbal, had been convicted for the offence punishable under Sections 395, 396, 302 read with 149, 147, 148, 323, 307 read with 149 of the IPC. The accused Babu, besides above, had also been convicted and sentenced for offences punishable under Section 3/25 of the Arms Act. Accused Mahendra Soni, Kalyan Singh, Ram Singh, Pappu and Ramjilal were sentenced as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment and a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 302 read with 149 IPC; (iii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 395 read with 396 IPC; (iv) Five year's rigorous imprisonment and a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 307 read with 149 IPC; (v) One year's rigorous imprisonment for the offence punishable under Section 323 read with 149 IPC. The accused appellant Makkan was sentenced as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for offence under Section 395 read with 396 IPC; (iii) Five year's rigorous imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 307 IPC; and (iv) One year's rigorous imprisonment for the offence punishable under Section 323 read with 149 IPC. Accused Sayra had been sentenced to undergo as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 302 IPC; (iii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 395 read with 396 IPC; (iv) Five year's rigorous imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 307 read with 149; and (v) One year's rigorous imprisonment for the offence under Section 323 read with 149 IPC. The accused Babu had been sentenced as under:- (i) Two years' rigorous imprisonment for the offence punishable under Section 148 IPC; (ii) Life imprisonment along with fine of Rs. 1000/- in default whereof to further undergo rigorous imprisonment for one year's for the offence under Section 302 read with 149 IPC; (iii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 395 read with 396 IPC; (iv) Five years' rigorous imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for offence under Section 307 read with 149 IPC; (v) One year's rigorous imprisonment for the offence under Section 323 read with 149 IPC; and (vi) Three years' rigorous imprisonment along with a fine of Rs. 100/- in default whereof to further undergo rigorous imprisonment for three months for the offence punishable under Section 3 read with 25(1)(b) of the Arms Act; All the sentences were to run concurrently and benefit of Section 428 Cr.P.C. as in accordance with law had been given. Accused Ramjilal, Makkan, Sayra and Pappu have challenged this order vide criminal appeal no. 1027/04; Ram Singh and Babu have challenged this order of conviction and sentence vide criminal appeal No. 908/04; while Mahendra Soni and Kalyan Singh have challenged the order of conviction and sentence vide criminal appeal No. 251/05.
(2.) Accused Birbal, after the commencement of trial before the learned Additional Sessions Judge (Fast Track) No. 1, Tonk, absconded and could be arrested only on 1.11.2004 and produced before the court on 13.1.2005 and his separate trial was conducted after his arrest. Vide impugned judgment dated 31.8.2006, he had been convicted for the offence punishable under Section 395 read with 396, 307 read with 149 and 147, 323 of the IPC and he had been sentenced as under:- (i) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 395 read with 396 IPC; (ii) Five years' rigorous imprisonment along with fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for offence under Section 307 read with 149; and (iii) One year's rigorous imprisonment for the offence under Section 147, 323 IPC. All the sentences were to run concurrently and benefit of Section 428 Cr.P.C. as in accordance with law, was given. However, he has acquitted of the offence under Section 302 of the IPC. This judgment and order of sentence was challenged by Birbal vide criminal appeal No. 1018/06.
(3.) The facts as culled out by the prosecution are as follows:- On 16.3.1998 at about 8.30 p.m. SHO Police Station Diggi Shri Banwari Lal, PW. 4, on receipt of a telephonic information Exhibit P. 135 (rapat rojnamcha) to the effect that some miscreants were creating nuisance in the temple Kalyanji Maharaj, reached there, PW 10 Basanti Lal, a member of pujari family of the temple, gave a written report Exhibit P1 alleging that after completion of evening aarti and offering of bhog at about 8.00 p.m., he along with his brother Rajendra PW. 17, uncle Ram Swaroop PW. 15, and other family members, went to the western side of the temple known as 'parikrama' for having their food (prasadi). His brother Yaduraj PW. 34 was made to sit on the takhat on the gate of the temple whereas his sister Shakuntala, nephew Jeetu PW. 30 and niece Shimla PW. 28 were sitting near the gate of garbhgrah (main temple). They were about to start dinner (prasadi), a gunshot noise from the side of garbhgrah was heard and scared Shimla came crying that dacoits had come to the temple. On hearing this they rushed towards the garbhgrah and saw one person going out of garbhgrah with the 'mukut' and 'sirpech' of Kalyanji Maharaj and two persons were seen threatening Yaduraj and others on a gunpoint. Rajendra chased and caught hold of the miscreant running with 'mukut' and 'sirpech' and sister Shakuntala tried to snatch it from him. The scuffle started and immediately, four to six more miscreants armed with weapons came and dragged Shakuntala to the Garuda Chowk. Four five gunshots fired by them injuring Shakuntala (deceased), Jeetu PW 30, Rajendra PW 17, Ram Swaroop P/w 15 and Yaduraj PW. 34. Shakuntala fell in the chowk and complainant Basantilal was also threatened on a gunpoint by one of the miscreants wearing a maroon suit. Another fire shot injured a lady. Meanwhile his brother Rajendra PW. 17, apprehending that they may again go to the garbhgrah, bolted it from inside whereas his uncle Ram Swaroop tried to shut the middle door of the temple but the miscreants did push the same the he could not. The gunshots fired by the miscreants also injured Laxman (deceased), Ram Rattan and others. The mob chased the miscreants but could catch hold of only two of them who disclosed their names as Ram Singh and Birbal and the names of their other companions were disclosed as Makkan Meena, Madan Meena, Pappu Meena, Badri Meena, Babu Meena, Shambhu Meena and Sayra Meena, all residents of Sanwalpura, Sikar. Names of Prakash Meena of Nayabas, Sikar and Mahendra Soni of Jadiawas, Sikar, were also disclosed by them. According to the complainant the miscreants ran towards the rear side of the temple after the mob tried to chase them and on checking the temple 'sirpech' was found missing.;