JAIN, J. - (1.) THE Additional Sessions Judge (Fast Track) No. 2, Bundi, vide its judgment and order dated 30th January, 2004, in Sessions Case No. 81/2001, convicted and sentenced the accused-appellants - (1) Ram Bharosh S/o Ghasi Lal Mali, (2) Ram Charan S/o Shri Ghasi Lal Mali, (3) Prabhu Lal S/o Shri Panna Mali, (4) Bhola Shankar S/o Shri Govinda Mali, (5) Ghasi Lal S/o Shri Panna Lal Mali and (6) Nand Lal @ Nanda S/o Shri Keshri Lal Teli, as under:- Under Sections Sentence of Imprisonment 148, IPc To undergo 1 year simple imprisonment and a fine of Rs. 500/-; in default of payment of fine, to further undergo 1 month additional simple imprisonment 307/149, IPc To undergo 7 years simple imprisonment and a fine of Rs. 1000/-; in default of payment of fine, to further undergo 1 month additional simple imprisonment 323/149, IPc To pay a fine of Rs. 500/-; in default of payment of fine, to further undergo 15 days additional simple imprisonment 341, IPc To pay a fine of Rs. 500/-; in default of payment of fine, to further undergo 15 days additional simple imprisonment All the sentences were ordered to run concurrently.
(2.) BRIEFLY stated the facts of the case are that a first information report No. 309/1996 (Exhibit P-27) was registered at Police Station Taleda, District Bundi, under Sections 147, 148, 149, 341, 307/323, IPC and under section 27 of the Arms Act, on the basis of `parcha bayan' of injured Rameshwar (Exhibit P-1) dated 29. 9. 1996 recorded at General Hospital, Bundi, by the Station House Officer, Kotwali - Bundi. It was stated by the injured that at about 5. 00 PM he was going on his scooter with his brother Birdhilal from Taleda and when he reached near Dhora, the accused persons (15 in number) stopped them. Ram Bharos fired from their back-side thereby he sustained injury at his back. Ram Charan also fired his gun and his brother sustained injury at his leg. Prabhu inflicted a 'kulhadi' blow thereby he sustained head injury. Ghasi also inflicted 'lathi' blow thereby he sustained an injury on his hand. All the accused-persons inflicted injuries on his person and on the person of his brother. The police investigated the matter and filed charge-sheet against 17 persons. The trial court framed charge against accused Ram Bharos and Ram Charan for the offence under Sections 147, 148, 307/149, 323/149, 341, IPC, and Section 3/25 of the Arms Act, and against remaining accused-persons under Sections 147, 148, 307/149, 323/149 and 341, IPC. The accused-persons denied the charge and claimed to be tried. The prosecution examined 17 witnesses and exhibited 64 documents (Exhibit P-1 to Exhibit P-64 ). The statements of accused-persons were recorded under Section 313, Cr. P. C. , wherein they stated their innocence and further that they have been implicated falsely in the case. In defence, the statement of DW-1 Shrinath Bansal and DW-2 Ganga Sahai were recorded and documentary evidence (Exhibit D-1 to Exhibit D-6) was also filed. The learned trial court, after considering the entire evidence on the record, acquitted 11 accused persons, and convicted and sentenced the six appellants, as mentioned above. Being aggrieved with the same, the accused appellants preferred S. B. Criminal Appeal No. 218/2004 and injured Birdhilal preferred S. B. Criminal Revision Petition No. 446/2004 against 11 accused-persons, who were acquitted.
(3.) THE learned counsel for the accused-appellant, Shri A. K. Gupta, contended that as per the statements of PW-1 Rameshwar, PW-2 Birdhilal, PW-3 Smt. Shantibai and PW-4 Mohanlal, it is clear that initially a report was lodged by Mohanlal at Police Station Taleda but the said original report has not been produced in the case by the prosecution. THE present F. I. R. (Exhibit P-27) has been registered on the basis of 'parcha bayan' (Exhibit P-1) of injured Rameshwar recorded by the S. H. O. , Kotwali - Bundi. THE prosecution has deliberately concealed the original F. I. R. , and has not come with clean hands before the Court. THE present F. I. R. is ante-dated and false allegations have been alleged in it, therefore, the entire prosecution case becomes doubtful and the accused persons are entitled to get the benefit of the said doubt. It is further contended that there was no occasion for the accused-persons to go at the spot where the incident took place. It was not on the way. He referred the statements of PW-1 Rameshwar and PW-2 Birdhilal in support of his contention that the way was about one kilometer away from the place of incident and the present case has falsely been lodged against the accused- persons by the complainant party. It is further contended on behalf of the accused that the statements of the prosecution witnesses, particularly the injured eye-witnesses PW-1 Rameshwar and PW-2 Birdhilal, are not corroborated with the medical-evidence Exhibit P-22, the injuryreport of Rameshwar, and Exhibit P-21, the injuryreport of Birdhilal and Exhibit P-56 and Exhibit P-59, the X-ray reports of Rameshwar and Birdhilal, and in absence of corroboration therewith of the statements of the prosecution witnesses PW-1 Rameshwar and PW-2 Birdhilal, the prosecution case becomes doubtful and appellants have wrongly been convicted on the basis of the testimony of both injured persons, particularly when their statements were self-contradictory. It is further contended that the medical report, in fact, has falsified the entire prosecution case and in support of his submissions he referred the statements of PW-1 Rameshwar and PW-2 Birdhilal, who specifically stated that PW-1 was riding the scooter and Birdhilal was sitting on the back seat thereof. The gunshot injury was inflicted from the back and Birdhilal did not sustain any injury and Rameshwar could not have sustained injury in the facts and circumstances of the present case. Therefore, it is contended on behalf of the accused-appellants that the prosecution has failed to prove the case against the accused- appellants beyond all reasonable doubts and the learned trial court has committed a serious illegality in convicting and sentencing the accused appellants and, thus, they are liable to be acquitted. ;