NISHA GUPTA - (1.) THESE three Criminal Appeals arise out of a common judgment, hence are decided by this common judgment. All these appeals have been preferred under section 374 Cr.PC against the judgment dated 17.02.2004 passed by the Additional Session Judge (Fast Track) No.1, Alwar in Sessions Case No.54/2001(60/2000) whereby the accused -appellants have been convicted and sentenced as under: - Appellants -Jagmal Singh, Mahendra, Deshraj,Surendra Yadav and Chandan Under section 302/149 IPC: Imprisonment of life with fine of Rs. 2000/ -each, in default of payment of fine to further undergo rigorous imprisonment of one year. Appellant -Rohitash Under section 302 IPC: Imprisonment of life with fine of Rs. 5000/ -, in default of payment of fine to further undergo rigorous imprisonment of one year Appellants -Jagmal Singh, Mahendra, Deshraj,Surendra Yadav, Chandan and Rohitas Under section 148 IPC: Rigorous imprisonment for three years with fine of Rs.500/ -each, in default of payment of fine to further undergo simple imprisonment for three months Under section 323 IPC: Rigorous Imprisonment of one year Under section 447 IPC: Rigorous Imprisonment of three months Appellants -Jagmal Singh, Mahendra, Deshraj,Surendra Yadav and Rohitas Under section 324/149 IPC: Rigorous Imprisonment of three years with fine of Rs.500/ -each, in default of payment of fine to further undergo rigorous imprisonment of three months Appellant -Chandan Under section 324 IPC: Rigorous Imprisonment of three years with fine of Rs.500/ -each, in default of payment of fine to further undergo rigorous imprisonment of three months
(2.) THE short facts of the case are that on 15.3.2004, complainant Somdev PW15 lodged a written report Ex.P/18 at 7.15 PM before Police Station, Udyog Nagar, Alwar stating therein that he and his uncle Prabhudayal and Dev Prakash were digging holes for fixing the electric pole. At that time, Mahendra, Rohitash, Jagmal Singh, Surendra, Chandan, Smt Ramrati, Smt Hansa Devi, Chhaganlal and Pradeep Kumar came there having sticks and farshi in their hands and had started beating with them. His sister -in -law Sarla, sister Suman and father Dharmchand came there to intervene, they have also been beaten, other persons from village also came there, then accused persons ran away. Due to beating, Prabhudayal died on the spot. On this, FIR No.87/2000 was registered for the offences under Sections 147,148,302 and 447 IPC and after investigation charge sheet has been filed against the present appellants. Charges have been framed against Rohitash and Mahendra for the offences under Sections 147,148, 302, 302/149, 323/149, 324/149 and 447 IPC and against appellant Deshraj for the offences under Sections 147,148, 302/149, 323,323/149, 324,324/149 and 447 IPC and against appellant Jagmal Singh for the offences under Sections 147,148, 302/149, 323/149,324/149 and 447 IPC and against appellants Surendra Yadav and Chandan under Sections 147, 148, 302, 302/149, 323/149, 324/149 and 447 IPC. They denied the charges and claimed trial. The prosecution has examined witnesses namely PW1 Dr.Amar Singh Rathore, PW2 Rohitash, PW3 Babulal, PW4 Bhagwansahay Saini, PW5 Jansi, PW6 Tilakraj, PW7 Parshuram, PW8 Suman, PW9 Smt. Sarla, PW10 Mahendra, Pw11 Dharmchand, PW12 Banwarilal Gupta, PW13 Devendra, PW14 Radheyshyam, PW15 Somdev, PW16 Dev Prakash and PW17 Bhagwandas. Prosecution has relied upon Ex.P/1 to Ex.P/36. Statements of accused persons under section 313 Cr.PC have been recorded. Defence has relied upon documents Ex.D/1 to D/20. No oral defence evidence has been produced. After conclusion of the trial, the appellants have been convicted and sentenced as above, hence this appeal. The contention of the appellants is that prosecution has miserably failed to prove charges against the appellants. Deshraj has not been named in FIR and no specific allegation has been alleged against him. 9 persons have been alleged in the occurrence whereas Prabhudayal has received only two injuries. Allegations of overt -acts are only against Rohitash and Mahendra and that too are not corroborated with the medical evidence. Prosecution witnesses have not supported the participation of Surendra Yadav and Chandan in the incident. Witnesses have stated in their favour that they were not participating in the incident. They were mere spectators and their only mistake is that they have not intervened to save the complainant party. All the witnesses are relative witnesses and their presence is unnatural. Cross first information report has also been lodged and appellants Jagmal Singh, Rohitash and Deshraj have also suffered injuries and further contention is that the case does not travel beyond section 304 Part -I as the incident has occurred at the spur of moment without any premeditation of mind. Admittedly, complainant party was digging holes for fixing electric pole and dispute was as regard to place where electric pole could be fixed. The deceased has received only one fatal injury and injuries to other injured persons are only simple in nature. Per contra, contention of learned Public Prosecutor is that prosecution evidence is consistent on the point that appellants armed with weapons have inflicted injury to Prabhudayal and when PW8 Suman, PW9 Smt. Sarla, PW11 Dharmchand, PW15 Somdev and PW16 Dev Prakash came there to intervene, they have been beaten and all these witnesses have also suffered injuries hence their evidence cannot be disbelieved or ignored and there is no infirmity in the finding of court below.
(3.) HEARD the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. PW15 Somdev has lodged the FIR and his contention is that on 15.3.2000 at 5 PM, he, Prabhudayal and Devprakash etc. were digging holes to fix new transformer in their land, at that time, appellants named and other persons came there. Rohitash inflicted tanchiya blow on the temporal bone of the deceased whereas Mahendra has inflicted farshi blow on his head. Chandan and Surendra caught hold of Prabhudayal. Chandan inflicted Farshi blow to Dev Prakash. Deshraj inflicted lathi blow to Dev Prakash. Suman PW8, Smt. Sarla PW9 and Dharmchand PW11 also came to intervene there and they have also been beaten. He has further contended that he lodged FIR Ex.P/18 of the occurrence. PW16 Dev Prakash who is other injured eye witness has also stated that Rohitash inflicted tanchiya blow on the temporal bone of his father. Mahendra has inflicted farshi blow to Prabhudayal. His further contention is that Deshraj and Chandan caught hold of his father and Chandan also inflicted farshi blow to him and Deshraj inflicted lathi blow on his right leg. Other eye witness PW11 Dharmchand has stated that Rohitash inflicted tanchiya blow at temporal bone of Prabhudayl and Mahendra inflicted farshi blow on his head. He has also stated about the role of Deshraj, Jagmal Singh and Chandan etc. He is also the injured eye witness. PW8 Suman Yadav and PW9 Sarla, the eye witnesses are also consistent on the point that Rohitash inflicted tanchiya blow to Prabhudayal on temporal bone. Mahendra has inflicted farshi blow on his head. PW1 Dr. Amar Singh Rahore has conducted post mortem of deceased Prabhudayal and found two injuries on his person which are as under: 1.Lacertated wound 7x4 cm left temporal bone deep red clotted blood - fracture of left temporal bone seen. 2.Lacerated wound 6x1/2 cm scalp deep left fronto parietal skull red clotted blood. ;