- (1.) Since both the appeals are directed against the impugned judgment dated 05.11.2007 passed by the learned Additional Sessions Judge, Fast Track, Balotra Headquarter, Barmer, therefore, we propose to decide these appeals by this common judgment. The instant appeals are directed against the judgment dated 05.11.2007 passed by Additional Sessions Judge (Fast Track) Balotra Headquarter, Barmer in Sessions Case No. 59/06(Old No.27/06) by which the accused-appellant Kan Singh is convicted under Section 302 I.P.C. and appellant-accused Sumer Singh is convicted under Section 302/34 of IPC and both the appellants-accused are sentenced with life imprisonment and with a fine of Rs.5,000/- in default thereto further to undergo for six month simple imprisonment.
(2.) The contents of Ex.P/5 F.I.R. No.37 dated 09.04.2006 reads as under:- ...[VERNACULAR TEXT OMITTED]... ...[VERNACULAR TEXT OMITTED]...
(3.) Heard rival submissions of both the parties. It has been argued on behalf of the appellants-accused that so far as the incident is concerned, it is not disputed but the way in which it is projected, is not acceptable because it occurred in a spur of moment, when accused Kan Singh tried to escape from the venue, while he was targeted to be beaten by the complainant side and while the vehicle was being plied hurriedly, victim Bhanwar Singh, wittingly came in-front-of the jeep and got accidental dash from the vehicle, there was no intention to kill anybody, prosecution has also failed to establish motive, learned counsel has further contended that the trial court has wrongly convicted the appellants-accused. Learned counsel for the appellants have also contended that the appellant-accused Sumer Singh was not at all involved in the incident and several witnesses of the prosecution have admitted that he did not board the vehicle and got deboarded in the village itself, all the witnesses of the prosecution have corroborated that Sumer Singh was not there on the driving seat, so allegations that he drove the vehicle and hit deceased Bhanwar Singh and killed him intentionally are not correct. Learned counsel for the appellants have also contended that FSL has not been referred to the accused persons under their examination under Section 313 Cr.P.C., so it cannot be read against them and so far as conviction of Sumer Singh is concerned, it is also bad in the eye of law because he did not participate in the alleged crime, despite the learned trial court has wrongly held him guilty, he is entitled to be acquitted from the charges and it has been contended that the sentence passed against accused Kan Singh be modified under Section 304 Part-I IPC and appellant-accused Sumer Singh be acquitted and both the appeals be allowed accordingly. Per contra, learned Public Prosecutor has contended that there is no infirmity or perversity in the judgment impugned. The case of the prosecution hinges upon ocular evidence. Both the accused tried to run-over Bolero jeep upon deceased, as well as upon, two of the sons of the deceased, who ran and took shelter under some objects and witnessed entire incident, the accused persons came there by a Bolero jeep, they were roaming hither and thither from the day time and were in search of an opportunity to crush-down the complainant party, they had planned and aggressively came and hurled abuses and ultimately drove the vehicle to crush the complainant side and mercilessly run-over the vehicle over the deceased, had the sons of the deceased not sought shelter and got escaped themselves, they too would have been killed. The story of the prosecution is entirely proved by eye-witnesses who have narrated everything in a precise way. The injuries are well corroborated by medical evidence, jeep was also having hitting signs, even the driver of the vehicle, who has been produced in defence, has admitted that the deceased Bhanwar Singh was hit by the vehicle and was killed there. There is no flaw in the impugned judgment, both the accused have rightly been convicted and sentenced by the judgment impugned. The appeals do not possess any merit, so, both the appeals are liable to be dismissed.;