- (1.) ANIL Sharma and Yogesh, the two appellants were tried for the charges under secs. 147, 148, 302, 302/34, 302/149, 323, 323/34 and 323/149 I. P. C. by the Sessions Judge, Banswara, vide judgment dated August 21, 1987 the learned Judge convicted ANIL Sharma under section 147 and 323 I. P. C. and sentenced him one year R. I. and a fine of Rs. 500/-, in default of payment of fine to undergo six months R. I. on the first count and one year's R. I. and a fine of Rs. 500/-, in default of payment of fine to undergo six months R. I. Yogesh appellant was convicted under sections 302, 148 and 313 149 I. P. C. and was sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to undergo fifteen days R. I. on the first count, one years R. I. on the second count and six months R. I. on the third count with an order that the substantive sentences of the two appellants shall run concurrently.
(2.) THE remaining nine co-accused were held guilty under section 147 and 323/149 I. P. C THEy were however given benefit under the Probation of Offenders Act and were bound down for maintaining peace and be of good behaviour for a period of one year. Appellant Anil Sharma and Yogesh have preferred two separate appeals against their conviction and sentences. As the two appeals arise out of the same judgment, we propose to dispose them of by a common judgment. On November 18, 1983 Virendra Singh Chobisa's foot got pressed by the foot of Mahendra Singh (P. W. 7) while he was coming out of the Office of the Govt. College, Banswara after verifying the Form. Virendra Singh hurled abuses to him at which Mahendra Singh slaped him. That caused annoyance to Virendra Singh and his companions and they started moving with Lathis. On the next day i. e. on Nov. 19, 1983 there was a Camp consisting of forty-fifty students for Rastiya Samaj Sewa [n. S. S. ] and Shri S. M. Khan and J. C. Puri (P. W. 24) were the Professors Incharge of the camp. On Nov. 20, 1983 at about 12. 30 or 12. 45 p. m. the students of the Camp were taking lunch in the Varandah of the Laboratory. Pushpendra Singh (P. W. 2), Shivendra Singh (P. W,3), Mahendra Singh (P. W. 1), Prithvi Pal Singh (P. W. 8), Surendra Singh (P. W. 9), Bhanwar Singh (P. W. 10) and Rajendra Singh (P. W. 11) were sitting in one row and in the front row Dharmendra Singh deceased was sitting. At that time eight or ten students armed with lathis and wire chain went there. Anil Sharma asked them to come out. When they did not come out, the miscreants entered the varandah. Anil Sharma inflicted a Lathi blow to Dharmendra Singh. Deepak threw stone towards Dharmendra. Dharmendra fell down. Anil Sharma inflicted a lathi blow to Shivendra Singh (P. W. 3 ). On account of this there was stamped and the students of the Camp tried to run away hither and thither. As soon as Dharmendra Singh got upto run away, Yogesh plunged the knife into his chest. Dharmendra Singh cried and fell down. Yogesh ran away from there along with the knife. Pushpendra Singh (P. W. 2), Shivendra Singh (P. W. 3), Rajendra Singh (P. W. 11), Prithvipal Singh (P. W. 8), Surendra Singh (P. W. 9), Bhanwar Singh (P. W. 10) and Mahendra Singh (P. W. 7) and others took Dharmendra Singh in unconscious condition in a Tempo to the hospital where the Doctor declared him dead. Mahendra Singh son of Moti Singh (P. W. 7) and Pushpendra Singh son oft Hadmat Singh went to the police Station Banswara and lodged the oral report which reduced into writing is Ex. P/2. Case was registered against the appellants and others. The post mortem examination of the dead body of Dharmendra Singh was conducted by Dr. Balmuk and Upadhyay, Medical Jurist, M. G. Hospital, Banswara. The Doctor prepared the postmortem examination report Ex. P/16. He noted following injuries on the dead body: (1) Abrasion on Lt. Vertebra 3/4" x 1/2" i. e. on spinus process. (2) Abrasion in Lt. lower lateral side of chest 2" x 1 1/2" epideus peale off. (3) Ante mortem Transverse incised wound wedge shaped on 5th intercostal space just outer to Lt. mid clavicular line - "wedge edge of wound towards sternum side of size 2 cm x 1 cm x cavity deep (with effusion of blood in retrosternal parts) going towards medial side and slightly towards Upperside of thoracic cavity outer end of wound is 2" lower to Lt. Nipple area on dissection just outer to sternum the medial and of wound is. According to the Doctor injuries No. 1 and 2 might have been caused while shifting the dead body from one place to another. Injury No. 3 was ante mortem and could be caused by knife. Injury No. 3 according to the Doctor was sufficient to cause death in the ordinary course of nature. The Doctor also examined Shivendra Singh on the same day and noted following injury on his person: Red bruise faint at the medial border of crest of spine of left scapula 1 3/4" x l/2"transversly situated simple blunt. The injury report is Ex. P/4. Azad Sharma (P. W. 25), Station House Officer, Kotwali Banswara went to the site and proceeded with the investigation. Yogesh appellant was arrested on May 2, 1984 vide Memo Ex. P/26 and Anil Sharma on January 23, 1984 vide Memo Ex. P/12. In pursuance of the information furnished by Yogesh appellant one knife was recovered and in pursuance of the information furnished by Anil Sharma one stick was recovered. Upon completion of necessary investigation charge-sheet against the two appellants and others was filed in the court of Judicial, Magistrate, Banswara. The learned Magistrate committed the case to the Court of Sessions. The learned Judge charge sheeted the appellants and on their denial of the charges, proceeded with the trial. In their statements under section 313 of the Code of Criminal Procedure, the appellants denied the allegations levelled against them and stated that because of the unpleasant relations between the two groups they have been falsely implicated. Five defence witnesses were examined to State that the appellants were not amongst the persons who attacked the complainant party on the day of the incident. The learned Judge placed reliance on the prosecution witnesses and passed the judgment under appeal.
(3.) WE heard Mr. N. N. Mathur, learned counsel for Yogesh appellant. Mr. S. K. Goel, learned counsel for appellant Anil Sharma and Mr. Vijay Singh Chaudhary, learned Public Prosecutor for the State and carefully examined the record of the case. Mr. N. N. Mathur, learned counsel for appellant Yogesh has assailed the landings of the learned trial Judge on a number of grounds. It has been argued that the F. I. R. could not have been such a detailed one within the short span of the occurrence had there been no intention to implicate a number of students residing in Rajput Hostel. It has been strenuously contended that the eye witnesses do not inspire confidence and there are material contradictions in their statements before the Police and statements at the trial. It has-been stressed that all the interested witnesses have been examined where as independent witnesses who have been examined from the defence side were not produced from the prosecution side because of the fear of the true facts coming on record. The findings of the learned trial Judge has also been assailed on the ground that S. M. Khan Professor Incharge of the Camp has not been examined despite his presence being admitted at the site and Jagdish Chandra Puri (P. W. 24) who has given true statement has not been believed because his statement does not implicate the appellants and the other accused. The incident is said to have taken place on November 20, 1983 at 1 00 P. M. at Banswara Government College. The F. I. R. has been lodged by Mahendra Singh (P. W. 7) accompanied by Pushpendra Singh (P. W. 2) on November 20 1983 at 1. 30 P. M. at Banswara Police Station. if the witnesses were there then there was nothing unnatural on their narrating all the facts before the Police at the time of furnishing information. ;