RAFIQ, J. - (1.) THE aforementioned five criminal appeals and one criminal revision petition, arises out of the common judgment dated 28. 5. 2004 passed by the learned Additional Sessions Judge No. 1 (Fast Track), Jhunjhunu whereby accused appellants - (1) Ishwar Singh, (2) Pramendra @ Pappu, (3) Vinod Kumar, (4) Jai Singh, (5) Jagveer, (6) Tejpal @ Teja, (7) Dharmendra, (8) Rajpal, (9) Sudhir Kumar, (10) Jai Pal Singh, (11) Jai Singh S/o Shri Mam Chand, (12) Hukmi Chand and (13) Nihal Singh @ Nihala, were convicted for offence u/s 148 IPC and each of them was sentenced to two years rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo 15 days' simple imprisonment and were also convicted for the offence under section 325 read with section 149, IPC and each of them was sentenced to two years rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo 15 days' simple imprisonment. All the accused appellants were convicted for offence u/s 323 r/w 149 IPC and each of them was sentenced to one year's rigorous imprisonment with fine of Rs. 250/- and in default whereof, to further undergo 7 days simple imprisonment. All the accused were convicted for offence u/s 447 and each of them was sentenced to one month's rigorous imprisonment with fine of Rs. 250/- and in default whereof, to further undergo 7 days simple imprisonment. Accused Nihal Singh @ Nihala, Sudhir, Jaipal Singh, Jai Singh and Jagveer were separately convicted for offence u/s 304-II r/w 149 IPC and each of them was sentenced to undergo rigorous imprisonment of 10 years with fine of Rs. 1000/- and in default whereof, to further undergo one month's simple imprisonment. All the sentences were ordered to run concurrently.
(2.) LEARNED trial court further directed accused appellants Nihal Singh @ Nihala, Sudhir, Jaipal Singh, Jai Singh S/o Shri Mam Chand and Jagveer that each of them shall to pay a sum of Rs. 10,000/-, in total Rs. 50,000/-, to complainant Ramswaroop, husband of deceased Mst. Chand Kaur. The facts giving rise to these matters are that one Vinod Kumar submitted a written report to SHO, Bhuhana at 10. 40 A. M. on 15. 3. 2000, inter alia, stating therein that Ishwar Singh S/o Shri Sada Ram, Jagveer S/o Dodraj and Pappu S/o Shri Daria Singh, who were in drunken condition, came in front of the house of complainant Vinod Kumar at about 10. 00 P. M. on 14. 3. 2000 and started abusing the complainant and his family members. They did not come out from the house. These people went back stating that they would come back in the morning of the following day. When the members of the complainant party went to their agricultural field at about 9. 00 A. M. on 15. 3. 2000 for manufacturing bricks - Jaipal, Sudhir, Jai Singh, Hukmichand, Ishwar Singh, Jai Singh S/o Shri Sada Ram, Jabveer, Dharmendra, Vinod, Raju, Teju and Pappu S/o Shri Dariya Singh came there having 'lathies', 'barchhis', 'kulharis' and 'hockies' etc. in their hands and suddenly attacked the complainant party. These people snatched gold chain of Gayatri and gold chain and wrist watch of Vinod. A regular First Information Report was chalked out bearing No. 21/2000 for offences under sections 147, 148, 149, 447, 379, 341, 323 and 307 IPC. On account of death of Mst. Chand Kaur, offence u/s 302 IPC was later added in the same FIR. The Investigating Officer after completion of investigation, filed challan on 13. 6. 2000 against accused Ishwar Singh, Parmendra, Vinod, Jai Singh, Jabveer, Tejpal, Dharmendra and Rajpal but kept the investigation open against other accused namely, Jaipal, Sudhir, Jai Singh, Hukmi Chand and Nihal Singh under section 173 (8) Cr. P. C. Subsequently, on 25. 1. 2001 supplementary challan was filed also against Nihal Singh, Jai Singh S/o Shri Mam Chand, Hukmi Chand, Jaipal Singh and Sudhir for the offences under sections 147, 148, 149, 447, 307, 302 and 323 IPC. The prosecution examined as many as 18 witnesses in support of its case and exhibited 17 documents, and the defence however examined six witnesses and exhibited 18 documents. Upon completion of evidence, the learned trial court after hearing arguments of the prosecution as well as the defence finally convicted and sentenced the accused appellants as indicated above. While the accused appellants have filed the aforesaid four appeals against their conviction and sentence, the State of Rajasthan has filed Appeal No. 858/05 by leave of this Court under section 378 (i) (iii), Cr. P. C. against acquittal of the accused for offences u/ss 302, 302/149, 307 and 307/149 IPC, Complainant Vinod Kumar has also filed D. B. Cr. Revision Petition No. 772/2004 assailing acquittal of the accused for offence u/s 302 IPC seeking their conviction for that offence. Since all the appeals and revision petition arises out of the same judgment, they were tagged together and were simultaneously heard and therefore are now being decided by this common judgment. We have heard Shri Biri Singh Sinsinwar, Shri Kamlendra Sihag, Shri Gaurav Chaudhary and Shri Anil Poonia, learned counsel for the appellants and Shri M. L. Goyal, learned Public Prosecutor and Shri Arvind Kumar Gupta, learned counsel for the complainant.
(3.) LEARNED counsel for the appellant (in Appeal No. 655/04) argued that the learned trial court has applied different yardsticks in evaluating and appreciating the statements given by the prosecution witnesses and those of the defence witnesses. In doing so, the learned trial court has completely missed the basic rule of burden of proof that while the prosecution has to prove its case beyond reasonable doubt, defence has to only probablise its version because degree of standard of proof required for the defence is only by preponderance of probabilities. Even though as many as six defence witnesses have given the probable defence of the accused but the same has not been correctly appreciated by the learned trial court. These witnesses provided corroboration to the defence of the accused appellants disclosed by them in the statements under section 313 Cr. P. C. Accused Pramendra @ Pappu in his statement before the trial court stated that he had gone to Jaisinghpura and continued to stay there from 14. 3. 2000 to 16. 3. 2000 for some consultation with Ram Singh but he was falsely implicated on account of political rivalry. Accused Rajpal has stated in defence that he was not present at the time of incident and was in fact at the residence of Manphool Mistri with Jai Singh and Dharmpal at Bhooriwas and he too was falsely implicated. Accused Hukmichand has categorically stated that on 14. 3. 2000, he had gone to Mahendragarh, in State of Haryana and returned back from there on 16. 3. 2000 and Jagdish and Ratan Singh were with me at that time and thus he was falsely implicated. Shri Biri Singh further argued that the accused appellants had no intention of causing death of deceased Mst. Chand Kaur. The evidence that has come on record coupled with the defence of alibi offered by a number of accused clearly indicates a definite tendency on the part of the complainant party to falsely implicate innocent persons. This makes out a case of false implication and, at least of over implication thus making prosecution story completely doubtful. According to him, the motive of the complainant party in implicating the accused was political rivalry between two groups of the village because wife of accused Nihal Singh had contested election for the office of Sarpanch and was defeated by the candidate of the accused party by a thin margin of merely 15 votes. Shri Biri Singh, learned counsel further argued that the case of the prosecution does not inspire confidence and becomes doubtful if examined in the light of defence offered by the accused. The complainant party has asserted it to be a case of free fight and has not attributed any specific injury to any specific accused but has made omnibus allegations against all the accused. On the other hand, yet none of the appellants suffered a single injury. Not only this, the the prosecution has tried to improve the case as originally disclosed in the FIR in which the presence of some of the appellants, had not been shown but in the evidence before trial court they have been roped in. Though lathi has been recovered at the instance of accused Jai Singh, but at the same time, lathies have also been recovered at the instance of accused Vinod Kumar and Ravindra and according to FSL report Ex. P17, they were found to have contained human blood. But then, the quantity of blood contained on the lathies recovered at the instance of the accused Ishwar was not sufficient for tests and no other weapon was recovered at the instance of any other accused. Therefore, there is no evidence so far as accused Sudhirkumar,jaipal,jaisingh and Nihalsingh are concerned,which can connect them with the crime. He further argued that Dr. Girdhari Lal Meena (PW 8) has proved that accused Jai Singh S/o Shri Sada Ram had one lacerated injury on his head and three other injuries, but the prosecution has failed to give explanation for these injuries. He therefore argued that the conviction and sentence of the accused appellants is bad in law and deserves to be set aside and they are liable to be acquitted of all the charges. Shri Gaurav Choudhary,learned counsel appearing on behalf of accused appellants Jagveer, Ishwar Singh, Permendra @ Pappu, Vinod Kumar, Jai Singh S/o Shri Sada Ram, Tejpal @ Teja, Dharmendra and Rajpal also assailed the correctness of the same judgment and argued that the accused appellants have been falsely implicated on account of political rivalry for the reason that wife of accused Nihal Singh had contested the election for the post of Sarpanch and therefore the complainant party had a grudge against accused Nihal Singh and implicated many of his relatives in the present case. Some of the accused appellants have not even been named in the FIR, yet the prosecution has improved upon their original version in the court during trial and falsely implicated them. Shri Choudhary also made the same arguments as noted above in the support of other appeals that the prosecution witnesses are not telling truth when they name the accused by assigning specific injuries and this is also proved from the fact that no specific injury was assigned to any accused in the originally disclosed version in the FIR. Vidhya Devi (PW1), Gayatri Devi (PW2), Kumari Suman (PW4), Dharmvir (PW5) and Vinod Kumar (PW9) are all closely related to each other and therefore also related to deceased Mst. Chand Kaur. These witnesses are highly interested witnesses and have reflected the tendency of false litigation. Their testimony ought to have been scrutinised by the learned trial court with a great amount of circumspection. The trial court has believed their version at their askance. The learned trial court failed to appreciate that there was neither any pre-planing nor was there any premeditation. The conviction of the accused appellants was therefore bad in law. ;