Kanwaljit Singh Ahluwalia, J. - (1.) RAFIQ Ahmad Khan (P.W. 9) son of deceased Shamsher Ali Khan had presented a written report (Ex. P.6) before Ugam Chand (P.W. 25) who was then posted Station House Officer, Laxmangarh. On the basis of said written report, formal FIR (Ex. P.7) bearing FIR No. 37/03 was registered at Police Station Laxmangarh, District Sikar for offences under Sections 143, 341, 307, 382 IPC. Subsequently, offence under Section 302 IPC was also added. Investigating agency had sent eight persons namely Shiv Bhagwan S/o. Laxman Singh, Vidyadhar S/o. Harphool, Mahesh Kumar S/o. Debu Ram, Ramotar S/o. Sewaram, Srichand @ Shiv Chand S/o. Bhinwaram, Nemi Chand @ Arvind S/o. Surajmal, Shiv Chand S/o. Lachharam and Sri Ram S/o. Motaram as accused for the trial. The trial of the case was conducted by the Additional Sessions Judge No. 2, Sikar. The said court vide impugned judgment dated 17.8.2010 convicted Shiv Chand S/o. Lachha Ram, Shiv Bhagwan S/o. Laxman Singh and Nemi Chand @ Arvind S/o. Surajmal for offences under Sections 302/149, 148 and 341 IPC. The said accused were acquitted of offence under Section 323 IPC. Remaining accused Vidyadhar S/o. Harphool, Mahesh Kumar S/o. Debu Ram, Ramotar S/o. Sewaram, Srichand @ Shiv Chand S/o. Bhinwaram and Sri Ram S/o. Motaram were acquitted of offences under Section 302 or 302/149, 148, 323, 341 IPC. State of Rajasthan has not filed any appeal to assail the acquittal of the acquitted accused.
(2.) AGGRIEVED against their conviction and sentence, Shiv Chand and Shiv Bhagwan have preferred D.B. Criminal Appeal No. 656/2010 and Nemi Chand @ Arvind has instituted D.B. Criminal Appeal No. 742/2010. Since in both the appeal common judgment has been assailed and it has been prayed that conviction and sentence awarded by the trial court be set aside, we shall decided both the appeals together. Written report (Ex. P.6) presented by Rafiq Ahmad Khan (P.W. 9) when translated into English reads as under: - - "To, The SHO, P.S. Laxmangarh. Sir, It is submitted that I Rafiq Ahmad Khan, Kayamkhani, is resident of Jalod. In the night my father Shamsher Ali Khan who had retired as a police constable, received a telephonic call from daughter of Buddha Ram Jat from Balara. She informed that 3 -4 persons in the evening at dark time, had taken Budhha Ram to liquor vend and after wrongfully confining him in a room, had given him beating. My father had remained posted at Balara Police Chowki on many occasions for long. Therefor, he was having good friendly and family relations with Buddha Ram. My father called Jeep of Yunus Khan son of Ummed Khan resident of our village and in the night at about 9.30 PM after taking me along in Bolero Jeep of Yunus Khan proceeded towards Balara. Yunus Khan driver was present in the Jeep. At about 10.15 PM we reached at the house of Buddha Ram at Balara which is situated near to the police post. We have parked the Jeep in front of the police post. Buddha Ram met us at his house and informed that Srichand Jat r/o Posani, Pappu S/o. Srichand r/o Posani, Nemi Chand Jat r/o Gadhwalo Ki Dhani Tan Rangwa had forcefully taken him to the liquor vend and had wrongfully confined him in a room. After sometime, a fat boy named Shiv Bhagwan had given him beating. After sometime Vimal Kumar Joshi, Sarpanch of the village came and after prevailing over Srichand and Nemi Chand etc., he got Buddha Ram released. We had a talk with Buddha Ram and his family for 10 -15 minutes. Thereafter we returned to the police post. My father told me since we have come in a vehicle, his personal belongings are lying in the police post and he shall pick -up the same. We had gathered the goods and had kept them in the Jeep. At the police post we had spent 1 -1 1/2 hours while talking with others and collecting goods. At about 11.15 PM we left in the Jeep for our village. While we had gone a little ahead and were about to go on the main road, we found that in the way big stones were kept and 3 -4 persons were standing there. My father asked the driver to stop the vehicle and we both alighted from the vehicle and found that Srichand Jat, his son Pappu both residents of Posani, Nemi Chand Jat r/o Gadwalo Ki Dhani and one fat boy named Shiv Bhagwan were standing there with lathies. Srichand told father that Shamsher Ji as to why you had gone to the house of Buddha Ram. He is selling illicit liquor. We had brought him in the liquor vend and threatened him. You should not have come. My father told him that he received a telephonic call therefore, he had come to acquaint himself with the facts and thereafter gathering my goods from the police post, I am going to my village. Meanwhile from the side of Mukandgarh four Jeeps loaded with persons armed with lathis, spears and sword came. They came on two D.I. Jeeps, one small Jeep and one half body Jeep. Immediately after arrival 2 -3 persons each had caught hold of me, Yunus Khan and my father. They started giving us beating. They gave injuries to me and the driver with slaps and fists. Two persons had caught hold of hands of my father. Shiv Chand, Pappu, Nemi Chand and Shiv Bhagwan were causing injuries with lathis. Srichand gave a blow with lathi in his both hands forcefully on the head of my father with an intention to kill him. Nemi Chand also had given 2 -3 blows with lathi on the head of my father. My father stopped the blows with his hands. Pappu, Shiv Bhagwan etc. caused injuries with lathi on the shoulder and waist of my father due to which he fell down. Nemi Chand said to other people that he should not escape otherwise he will get us killed. While my father was lying fallen, others also caused him injuries with lathis. Then they left me and Yunus, we ran towards the police post Balara. All accused left the place of occurrence in respective Jeeps towards Laxmangarh. Number of persons had gathered. After inquiry, it was learnt that the above said persons who gave beating included Srichand Jat Bidsar, Mahesh Jat Sankhu, Vidyadhar, Mahaveer Jat r/o Posani. 20 -30 persons were involved in giving beating. Their names are not known to me. After seeing them I can identify them. In the lights of the Jeep and in moonlight night, I have seen them very well. I used to often visit my father in police post. Near to the police post is liquor vend. Hence, Srichand, Pappu, Nemi Chand and Shiv Bhagwan are known to me. I and Yunus had brought my father. Legal action be taken. My father received many injuries and blood is oozing from his head. He is unconscious. Watch of his hand and money from his pocket are missing. Regarding the amount of pocket, he can only disclose. Sd/ - Rafiq Ahmad Khan Dt. 16.2.2003"
(3.) IT is to be noted that occurrence in the present case has taken place on the intervening night of 15.2.2003 and 16.2.2003. As per the FIR, the Jeep was stopped on 15.2.2003 at 11.15 PM. Rafiq Ahmad Khan (P.W. 9) had submitted the written report (Ex. P.6) on 16.2.2003 at 12.50 AM. After the FIR was registered, said report had reached the Ilaka Magistrate on 18.2.2003 at 3.00 PM. It is to be noted that in the FIR, Buddha Ram, Yunus Ali besides the complainant Rafiq Ahmad Khan are stated to be eye -witnesses of the occurrence.;