NISHA GUPTA,J - (1.) THIS DB Cr. Appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 22.12.2006 passed by Additional Sessions Judge, Kekri Distt. Ajmer in Sessions Case No. 16/2003 whereby the present appellants have been convicted and sentenced as under: - under Section 148 IPC: to undergo one year simple imprisonment. Under Section 302/149 IPC: - to undergo life imprisonment with fine of Rs. 5,000/ - each and in default thereof to further undergo additional one year simple imprisonment. Under Section 307/149 IPC: - to undergo 7 years simple imprisonment each and to pay a fine of Rs. 5000/ - and in default of payment of fine to further undergo one year simple imprisonment. All the sentences were ordered to run concurrently.
(2.) THE short facts of the case are that on 27.9.2002, Naurat Mal (PW/25) has lodged a written report Ex.P/21 at Police Station, Sarwar, Distt. Ajmer stating therein that at about 8.00 PM, he along with Rameshwar Vaishnav, Jignesh, Jeetu and Badri Vaishnav who is resident of Sironj were offering prayers in the temple, at that time, Bhanwar Das and 21 other persons named in the report came there in a tractor having sticks, axe, kusiya and sword in their hands attacked them. Badri suffered injuries on his head and various other injuries. Badri died on the spot. Rameshwar Vaishnav, Jignesh and Jeetu intervened, they also suffered injuries in the scuffle and on hearing cries, Bheru, Rajesh, Shivraj and Mahaveer came there to intervene and on seeing them accused persons ran away in the tractor. Further, it has been stated that Nitendra and Geeta has also suffered injuries in the incident. On this report, FIR No. 195/2002 has been registered for the offence under Sections 147, 148, 307, 302, 323 and 341 IPC against 22 persons. After investigation, charge -sheet has been filed against 14 persons. Charges have been framed against the appellants for the offences under sections 147, 148, 302/149, 307/149, 347 and 324 IPC which was denied by the accused persons and they claimed for trial. To prove the case against the present appellants, prosecution has examined PW/1 Ramesh Chand, PW/2 Mahaveer, PW/3 Shivraj, PW/4 Rameshwar, PW/5 Mahaveer S/o Sugna, PW/6 Bheru Jat, PW/7 Raghuveer Singh, PW/8 Sheoji, PW/9 Ladu Singh, PW/10 Ganesh, PW/11 Jitendra, PW/12 Ramprasad, PW/13 Rameshwar, PW/14 Jignesh, PW/15 Nitendra, PW/16 Mst. Geeta Devi, PW/17 Datar Singh, PW/18 Ganpat Lal, PW/19 Sanjay Kumar, PW/20 Naval Kishore Sharma, PW/21 Sheoji, PW/22 Lalaram, PW/23 Ratan Singh, PW/24 Dr. R.K. Mathur, PW/25 Naurat Mal Vaishnav, PW/26 Gopal Singh, PW/27 Datar Singh S/o Ganga Singh, PW/28 Bhagwan Singh, PW/29 Amra Ram, PW/30 Bhanwar Lal, PW/31 Dr. R.C. Yadav, PW/32 Pradeep Singh Yadav and PW/33 Dr. Harvansh Singh Dua and also relied upon documents Ex. P/1 to P/99. The accused appellants have been examined under Section 313 Cr.P.C. No oral defence evidence has been produced, the defence has relied on Ex.D/1 to D/9. After conclusion of trial, the present appellants have been convicted and sentenced as indicated above.Hence this appeal has been preferred by the appellants. The contention of the present appellants is that the finding of the court below are against facts and record of the case and liable to be set aside. Initially, FIR was lodged against 22 persons whereas charge -sheet has been filed only against 14 persons. There is no injury of sharp weapon to any person whereas witnesses have specifically stated that the appellants were having sharp edged weapon and they inflicted injuries by sharp weapon. Thus the ocular evidence is not in conformity with the medical evidence. Badri was not the resident of village Borada. He came first time in the village and admittedly appelalnts were not having enmity with Badri. As per post mortem report (Ex.P/88) the only one injury to deceased found to be fatal, who caused the injury has not been conclusively proved by the prosecution. The cause of death is cumulative effect of two injuries whereas allegation against Lala Ram is of inflicting single injury, who caused second injury has not been proved thus, the case does not travel beyond section 325 IPC. The injury caused to the deceased is by blunt weapon and only linear fracture, the second injury could be caused by fall. All persons assembled there to offer prayers formation of unlawful assembly with common object cannot be attributed. Genesis of the case has been suppressed. Statement of witnesses are not consistent. Witnesses have admitted that at that time, lights were cut. When it was dark, it was not possible to identify accused appellants.Hence conviction of the appellants is bad in law and in alternative, it has been stated that there is no evidence that the appellants were party to the unlawful assembly.They cannot be convicted vicariously and Lalaram has inflicted only one injury whereas death has been caused due to cumulative effect of two injuries. Admittedly, occurrence has taken place in sudden fight and considering overall facts and situation, the case of the appellants does not travel beyond the scope of section 304 Part -II IPC.The other argument of the learned counsel for the appellants is that conviction under Section 307 IPC is bad in law as no injured has suffered any injuries which can be termed as dangerous to life.
(3.) PER contra, the contention of the learned Public Prosecutor is that all the witnesses are consistent on the fact that appellants came there armed in a tractor. They took Badri from old temple to new temple. Witnesses were not sure on the point that whether sharp side of weapon has been used and hence medical evidence could not be said to be contrary to the ocular evidence. Lalaram has inflicted fatal blow and other accused persons shared common object with him, they have rightly been convicted for Section 302/149 IPC. Heard learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case.;