B. Prasad, J. - (1.) - These two appeals arise out of a decision of Sessions Judge Ganganagar, given on 27.3.99 in Sessions Case No. 73/96. Learned Sessions Judge by the impugned order convicted the accused appellant Ashok Shonki under Section 302 I.P.C. with the aid of Section 34 I.P.C. and acquitted the other two accused persons, namely, Balwant Kumar @ Bantia and Karni Doctor. Convicted accused Ashok @ Shonki has filed appeal against his conviction and sentence as awarded by the trial court. State Government has preferred appeal against the acquittal of Balwant Kumar @ Bantia and Karni @ Doctor. The prosecution case started on the basis of a First Information Report lodged by Surja Ram Nayak on 12.7.96. According to the first informant his younger brother Shanker Lal who lived in his neighbourhood was a waiter with a Tent House. On the fateful day, he was called by two or three persons in the night at about 10.00. He came out of the house alone. When he reached nearby the house of Satpal Soni then those persons killed him. Persons living in the neighborhood gathered there. Jamna wife of Shanker Lal also arrived there. First Informant also heard the noise. When he reached on the spot i.e. near the wall of Satpal Soni, he saw his brother Shanker Lal lying smeared in blood. Wife of the deceased was weeping badly there. On being asked, wife of the deceased informed that today Kalu S/0 20 Jagdish, owner of the tent house, from Padampur came about 6.00 p.m. in a - jeep. He was accompanied by two or three persons. She only knew the name of Kalu S/o Jagdish. She can identify the other persons only by looking at them. She sent these persons at the house of Panna Lal because Shanker Lal had gone there. In the evening when Shanker came at home, he informed his wife that he has taken a contract of Padampur Tent. He has to go to complete his work, he would return tomorrow or day after tomorrow. At about 10.00 p.m., three persons called Shanker Lal and he went with them. They were seen by the wife of Shanker Lal. These persons had killed his brother. Dead body is lying near the wall of Satpal Soni. On the above information, First Information Report was registered. Usual investigation were conducted. After investigation charge sheet was filed. Ultimately, the charge sheet was filed. The trial court conducted the trial after the case was made over to it. At the trial, prosecution examined 14 witnesses and rendered 47 documents in evidence. The accused in his statement given under Section 313 Cr.P.C. denied his implication. The trial court after considering the case of the prosecution found that the death was homicidal. The trial court then proceeded to inquire as to who were the possible assailants. After considering the prosecution case, considering the evidence of the witnesses produced at the trial court came to the conclusion that identification of accused by Jamana wife of deceased Shanker Lal is of no consequence. Because all the accused persons were known to her from before. The accused persons used to live in the neighbourhood and they frequented the residence of the deceased. Names of these accused persons were not narrated by the first informant and, therefore, in this background, the trial court considered the statement of P.W. 9 Smt. Lachhu, who had deposed that she had seen accused Ashok @ Shonki immediately after occurrence along with two other persons. Therefore, the trial court was of the view that Ashok @ Shonki is a person who can be convicted. As far as the cases of other two accused persons are concerned, the trial court discarded the testimony of P.W.9 Smt. Lachhu by saying that she was not known to these accused persons before the occurrence and no identification parade was conducted qua these accused persons by P.W.9 Smt. Lachhu. Therefore. accused Baiwant Kumar @ Bantia and Karni @ Doctor were acquitted and Ashok @ Shonki was convicted, under Section 302 I.P.C. with the aid of Section 34 I.P.C. Learned counsel for the appellant submitted that it is a case where the deceased has sustained two stab wounds and one blunt weapon injury. There is no eye-witness of the occurrence, therefore, it cannot be said by any direct evidence as to who the actual assailant was. The learned trial court also, therefore, was not prepared to hazard a conclusion that it was only the convicted accused who is responsible for inflicting the injury in question. Therefore. conviction has not been made out with the aid of Section 302 I.P.C. simplicitor. Conviction has been recorded with the aid of Section 34 I.P.C. and Section 34 only comes into operation when there is more than one person. Identity of the other persons has not been established. Identity of the accused Ashok @ Shonki too has been established on the basis of the testimony of P.W. 9 Smt. Lachhu. This witness in her statement has stated that her house is just back of the house of Shanker Lal. According to her she saw Ashok @ Shonki wearing white clothes when he was making his escape good after the incident. The recovery of clothes of Ashok @ Shonki are denim jeans with blue shade and shirt with checks. This description of the clothes of Ashok @ Shonki does not just match with the description given by the witness P.W. 9 Smt. Lachhu. Her testimony is not sufficient to conclude that it was Ashok who was seen by her. Learned counsel for the appellant further emphasised that the house of P.W. 9 Smt. Lachhu was just at the back of the house of the accused and the incident had taken place at some distance away from the house and there is no convincing feature which would suggest that after the incident the accused has gone at the back of the house of the deceased Shanker Lal. In fact, what has been said is that they had gone away. Therefore; possibility of this lady seeing the incident is unnatural. It was in the night and she was at her house. The place of incident is not close to her house where she can hear noise. She claims that she was at the top of her roof. Which is far from the place of occurrence. There is enmity existing in between this witness and convicted accused Ashok @ Shonki. In this background, the learned counsel for the appellant emphasised that testimony of PW.9 Smt. Lachhu cannot be considered to be sufficient to corroborate the testimony of Jamna wife of the deceased-Shanker Lal. She was available right from the word "go to inform the first informant about the name of the accused person". The names were not given immediately after the incident. They were given only subsequently. There is no circumstantial evidence available on record, to link the incident to the accused persons. Thus, the conviction of the accused appellant under Section 302 with the aid of Section 34 I.P.C. is bad in the eye of law. Thus, the accused appellant deserves to be acquitted of the charges levelled against him. Learned P.P. for the State urged that the conviction has rightly been recorded. There is sufficient evidence available on record to show that the accused persons had enough grudge against the deceased to accept a contract at lower rate. The case of the present appellant is not distinguishable from that of the accused persons, who are convicted by the trial court. Therefore, the learned P.P. emphasised that the manner in which the conviction of caused Ashok @ Shonki has been recorded is correct. The acquittal of Balwant Kumar @ Bantia and Karni @ Doctor be set aside and they should also be convicted for the charges levelled against them and conviction of Ashok @ Shonki should be sustained.
(2.) Learned counsel appearing for the accused appellants Bantia and Karma said that the trial court had committed on illegality in acquitting the accused respondents Bantia and Karnia because they were not named in the FIR. No person had seen the incident as an eye-witness. The identification of Jamna wife of the deceased is of no consequence. She had known these persons. These are the persons who lived nearby her house and these are the persons who visited the house of the deceased. Thus, identification is of no consequence. They have only been named because there was suspicion. Witness P.W. 9 Smt. Lachhu is an inimical witness. As far as, Ashok @ Shonki is concerned, no identification parade was conducted. What is important is that the counsel for State Govt. has not been able to point out as to what perversity had occurred in ordering the acquittal of these two accused persons. If the reasoning given by the trial court is not so infirm and unsound then, the acquittal should not be ventured to be converted into conviction. Since none of the names of the accused persons was mentioned in the FIR, P.W. 9 Smt. Lachhu was not a reliable witness, she was not examined forthwith. She was a witness who claims to have heard noise from the top of her house. which is only situated at back of the house of the deceased Shanker Lal where there was no possibility of the accused to come in this area because they have gone to a different way. Therefore, there was no possibility of this witness seeing. Her version had not been believed qua the accused persons and rightly so.
(3.) In this background, the learned counsel for the respondents urged that no illegality has been committed by the trial court in acquitting the present accused respondents Balwant Kumar @ Bantia and Karni @ Doctor.;