Alok Sharma, J. - (1.) THIS criminal appeal under Section 374 Cr. P.C. has been filed against the judgment dated April 20, 2009 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Kota. Thereby the appellants Om Prakash, Sheoji @ Shiv Ram and Sita Ram have been convicted under Section 307 /34 IPC and each sentenced to suffer Rigorous imprisonment for ten years and fine of Rs. 1000/ -. In default to pay the fine, to further suffer simple imprisonment for six months. The facts of the case are that the complainant Pw. 1 Manju submitted a written report Ex.P -1 on 5 -4 -2008, on which FIR No. 17/2008 (Ex.P -9) was registered at Police Station Bapawar, District Kota for the offences u/s. 147, 148, 149, 341, 504 and 307 IPC. The allegation against the accused was that on 4 -4 -2008 a "Jagran" was organised in the village Umarda by him. Of the villagers going for the said "Jagran", Nawal Kishore was stopped on the way by one Shaitan Singh and another, Sheoji and abused. The miscreants also pushed down the motor -cycle of one visitor Mahavir and his friends also on their way to "Jagran". The aforesaid visitors to the "Jagran", who had been harassed and abused narrated the matter to the complainant's husband Ramesh Chand. Thereupon Ramesh Chand in the company of Nawal Kishore and another went to the village of miscreants to admonish them and ask them to desist. Ramesh Chand along with his companions first went to the house of Bhanwar Singh but found nobody there. Then he sought ought miscreants at the house of Sitaram Nath. A quarrel and scuffle between Sitaram and Ramesh Chand followed. Ramesh Chand was then attacked with a Sword, a Gandasi, a Kuntia and sticks with the intention of killing him. It was stated that Om Prakash inflicted a Dharia blow to Ramesh Chand's head. Sheoji @ Shiv Ram inflicted a blow on Ramesh Chand's head by a Kuntia. Sitaram and his wife were stated to have beaten Ramesh Chand with sticks on his arms. Nawal Kishore, Ummed Singh, Meghraj, Dwarki Lal and Dinesh Kirad were stated to be witness who intervened in the matter. The intervention resulted into the accused fleeing. Ramesh Chand was rendered unconscious and left to die with blood oozing out from his head. The complainant -not herself a witness -stated that the facts detailed in the written report resulting in the FIR were narrated to her by Nawal Kishore. Investigation followed the FIR. Challan was filed against Om Prakash, Sheoji @ Shiv Ram, Shaitan Singh, Sitaram and Dropadi wife of Sitaram for the offences under sections 307, 326, 324, 323, 147, 148 and 149 IPC before the jurisdictional Magistrate. In due course after committal, the case come up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Kota and the accused were charged for offences under sections 148 and 307 read with 149 IPC. Charges were denied and the accused put to trial. The prosecution in support of its case examined 24 witnesses and exhibited 43 documents. The accused in their explanation under Sec. 313 Cr. P.C., denied the charges and stated that the entire prosecution case was based on false evidence and that they were falsely implicated. No defence witness was however examined. Reliance was however placed on five documents.
(2.) THE learned trial Judge on evaluating the evidence led before it and the submissions by respective counsel was pleased to acquit all the accused of the offence u/s. 148 and 149 IPC and also acquit the accused Shaitan Singh and Dropadi w/o Sitaram of the offence u/s. 307 /149 IPC. However the accused appellants Om Prakash, Sheoji @ Shiv Ram and Sitaram were convicted for the offence u/s. 307 /34 IPC. Sentenced as detailed above followed. Learned counsel for the appellant has submitted that the prosecution evidence on which finding of conviction has been arrived at by the learned trial court was not of requisite probative worth, fundamentally for the reason that the incident took place at 8.30 PM in the evening of 4 -4 -2008 when it was dark and without any proved source of illumination to render the prosecution witnesses ascribing specific injuries on Ramesh Chand to the accused untrustworthy. It has been submitted that over implication at the instance of prosecution witnesses and the malafides of prosecution case is evident from the fact that three head injuries were stated to have been caused to Ramesh Chand on the ocular evidence, when in fact from the medical evidence only two head injuries were proved. Counsel submits that the learned trial court has disbelieved the prosecution case with regard to commission of offences under sections 147, 148 and 149 IPC and also acquitted the accused Shaitan Singh and Dropadi Bai. It has been submitted that the learned trial court has however erred in invoking Section 34 IPC vis -a -vis the accused particularly Sitaram in spite of the legal precondition of prior meeting of minds being absent from evidence on record. It has been further submitted that there is no evidence of the medical witnesses that the injuries to the head of Ramesh Chand were sufficient in the ordinary course of nature to have caused death and consequently, if at all, the accused Om Prakash and Sheoji @ Shiv Ram could have been convicted, only for an offence u/s. 326 and Sitaram only for an offence under Section 323 IPC. It has been further submitted that the trial court overlooked the genesis of the incident where the injured Ramesh Chand and others had admittedly gone looking for the accused appellants without any good reason and appeared to have been the aggressors.
(3.) HAVING heard learned counsel for the parties and considered the impugned judgment dated 20 -4 -2009 under challenge in this appeal. Also scanned the material evidence available on record. The obtaining factual situation is as under: - 1. A "Jagran" was being held at the instance of newly elected Sarpanch Manju and her husband Ramesh Chand on the evening of 4 -4 -2008. 2. The visitors to the Jagran on the way were accosted and harassed by Shaitan Singh and Sheoji @ Shiv Ram. 3. The harassed visitors Pw. 9 Nawal Kishor and Pw. 6 Mahavir and his friends complained to the injured Ramesh Chand with regard to obstruction being created in the way of those who were seeking to congregate at the "Jagran". 4. On the complaint of the visitors with regard to obstruction and harassment on the way to the "Jagran" the injured Ramesh Chand along with Pw. 9 Nawal Kishore and Pw. 7 Dwarki Lal went looking for the accused at about 8.30 PM asking them to desist from obstructing and harassing or troubling the visitors to the "Jagran".;