Mohammad Rafiq, J. - (1.) These appeals are directed against the judgment dated 19.06.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur in Sessions Case No. 105/2007 whereby the accused-appellants were convicted and sentenced as under : - Hansraj: Under Section 302 IPC - life imprisonment with a fine of Rs. 5000/-, in default of payment of fine, to further undergo one year rigorous imprisonment. Rajendra & Sri Kishan: Under Section 302 read with 34 IPC - life imprisonment with a fine of Rs. 1000/-, in default of payment of fine, to further undergo three months rigorous imprisonment. Satynarayan: Under Section 302/109 IPC - life imprisonment with a fine of Rs. 1000/-, in default of payment of fine, to further undergo three months additional rigorous imprisonment.
(2.) Brief facts of the case are that on 08.07.2007, Gordhan (PW1) has lodged a report (Ex.P1) in Police Station, Jamwaramgarh, District Jaipur before Manoj Kumar Gupta (PW12), SHO of that Police Station, stating inter alia that on 08.07.2007 at about 11.45 AM, his uncle Ramphool Gurjar (hereinafter referred to as the deceased) was coming from Aachro after discussing a deal for selling 'Joh'. He met with him at Bus Stand Bhanpur. He stayed there for ten minutes for taking some domestic goods. It was further stated in the report that thereafter, when he (PW1) was coming to house, he saw that near "Hanumanji Ki Bagechi", Bhanpurkallan, the deceased was being beaten by accused appellants Hansraj, Sri Kishan and Rajendra and 3-4 more persons. The accused appellant Hansraj was having sharp edged weapon. He tried to intervene and made hue and cry. Thereupon, the accused persons ran away from the place of incident. The deceased was thereafter taken to SMS Hospital, Jaipur, where he was declared brought dead by the Doctor. On the basis of aforesaid report (Ex.P1), the police registered the case and chalked out regular FIR No. 165/07 (Ex.P.24) for the offence under Section 302 IPC and started investigation. After usual investigation, the police submitted challan against the accused appellant Satyanarayan for the offence under Section 302 & 109 IPC, against accused appellant Hansraj for the offence under Section 302 IPC and against accused appellants Rajendra and Sri Kishan for the offence under Section 302 read with Section 34 IPC in the Court of Judicial Magistrate No. 5, Jaipur District Jaipur, from where the case was committed to the Court of Session and thereafter, it was transferred to the court of Additional District Judge (Fast Track) No. 1, Jaipur District Jaipur. The learned trial Judge framed charges against the accused appellant Hansraj for offence under Sections 302 & 120B IPC, accused appellants Rajendra and Sri Kishan for offence under Sections 302/34 & 120B IPC and against accused-appellant Satyanarayan for offence under Sections 302/109 IPC. They denied the charges and claimed to be tried. The prosecution in support of its case has examined as many as 12 witnesses and exhibited several documents. Thereafter, the statements of the accused appellants under Section 313 Cr.P.C. were recorded in which they have stated that they have been falsely implicated in this case. In defence, three witnesses were produced by the accused appellants and some documents were also got exhibited. After conclusion of trial, the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur District Jaipur by the impugned judgment and order dated 19.06.2008 convicted and sentenced the accused appellants in the manner as indicated above.
(3.) Shri Anil Upman, Shri H.R. Gurjar & Shri Om Prakash Fauzdar, learned counsel for the accused-appellants have submitted that the impugned judgment and order passed by the learned trial Judge are wholly based on conjectures and surmises and on extraneous consideration and run contrary to the materials and evidence available on record. In the written report (Ex.P1) lodged by Gordhan (PW1) the allegation that the accused appellants Rajendra and Sri Kishan caught hold of the deceased, was not there. Name of any of the eye-witnesses was also not mentioned in the written report. Even the material fact that the accused appellant Hansraj caused stab wound to the deceased was not mentioned therein and only it was stated that the accused appellant was having sharp edged weapon. It is submitted that even in his police statement (Ex.D5), Gordhan (PW1) has not mentioned the names of witnesses, who witnessed the occurrence. Learned counsel submitted that in that view of the matter, Gordhan (PW1) could not be regarded as eye-witness of the alleged incident because in the report Ex.P.1 lodged by him, many things as stated above are missing. Had he been an eye-witness, he would have certainly stated in the report Ex.P.1 that accused appellant Hansraj was causing stab wound to the deceased and accused appellants Sri Kishan and Rajendra had caught hold of the deceased. Thus the learned trial Court has committed serious error and illegality in treating him as eye-witness and in placing reliance on his statement.;