- (1.) The instant cr. appeal has been filed by the accused appellants under Section 374(2) Cr.P.C. against the judgment dated 10.10.2011 passed by learned Addl. Sessions Judge, Raisinghnagar, District Sri Ganganagar in Sessions Case No.13/2009 by which the appellants were acquitted from the offence under Section 307/34, 323/34 and 341 of the IPC but convicted the accused appellant Mohan Lal for the offence under Sections 302 and accused appellants Mangi Lal and Rajendra for the offence 302/34 IPC and following sentence was passed against them: Accused appellant Mohan Lal : Under Section 302 IPC Life imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo one month RI. Accused appellants Mangi Lal and Rajendra: Under Section 302/34 IPC Life imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo one months RI. As per brief facts of the case FIR no.77/2009 (Ex.P/29) was registered at Police Station Vijaynagar, District Sri Ganganagar upon complaint (Ex.P/28) filed by Richpal. Before filing the above complaint (Ex.P/28), an information was received from Government Hospital at about 1.30 am on 20.3.2009 which is in between the night of 19.3.2009 to 20.3.2009 by the SHO, Police Station Vijaynagar. Upon said information, the SHO went to the hospital, where the complaint (Ex.P/28) was given by the injured eye witness Richpal. In the complaint, following allegations were levelled by the complainant against the accused appellants, which reads as under: After registration of the FIR, investigation was conducted and after conclusion of investigation charge-sheet was filed against the accused appellants in the court of Judl. Magistrate, Vijaynagar under Section 302, 307, 323, 341 and 34 IPC. The learned Magistrate committed the case for trial to the court of Addl. Sessions Judge, Raisinghnagar, District Sri Ganganagar. The learned trial court after providing an opportunity of hearing framed charge against the accused appellant Mohan Lal under Section 302, 307/34, 323/34 and against accused appellant Mangi Lal under Section 302/34, 307, 323/34 and 341 IPC so also, against accused appellant Rajendra for the offenced under Section 302/34, 307/34, 323/34 and 341 IPC. All the accused appellants denied the charges and prayed for trial. During trial, statements prosecution witnesses were recorded and after recording evidence of prosecution, statements of the accused appellants were recorded under Section 313 Cr.P.C. All the three accused appellants denied the allegations levelled by the prosecution witnesses, but no evidence was produced by them in defence.
(2.) After recording evidence, the learned trial court heard final arguments of both the sides and decided the case against the accused appellants vide its judgment dated 10.10.2011 and convicted the accused appellant Mohan Lal was for offence under Section 302 IPC whereas accused appellants Rajendra and Mangi Lal were convicted for offence under Section 302/34 IPC and all the three appellants were acquitted from the other charges levelled against them. The instant appeal has been filed by the accused appellants against their conviction for offences under Sections 302 and 302/34 IPC respectively on various grounds.
(3.) At the threshold, the learned counsel for the appellants submits that the complainant Richpal who has submitted the written complaint (Ex.P/28) did not turn up before the court to support and prove the allegations levelled in the FIR in-spite of the fact that he was injured eye witness. The daughter of the deceased Krishna did not appear before the court to give statement in support of prosecution case. It is also argued that in the written complaint it is specifically stated by the complainant that after hearing noise of crying, the witness Ashu Ram and Deva Ram came on spot, therefore, accused appellants run away from the place of occurrence, but it is strange that both the witnesses Deva Ram and Ashu Ram turned hostile and did not support the prosecution case. But to hold accused appellant guilty, the learned trial court relied upon the testimony of Smt. Laxmi W/o deceased Sahab Ram and Jai Kishan (PW--10) son of the deceased for offence under Section 302 and 302/34 IPC. There is no evidence that PW--5 Laxmi and PW--10 Jai Kishan were present on spot but learned trial court relied upon the testimony of these two witnesses to convict the accused appellant, therefore, no offence under Section 302 IPC is made out because as per their statements accused appellants came on spot for beating complainant Richpal but said injured eye witness did not turn up before the court to prove the allegations. Both the witnesses said that deceased Sahab Ram went on spot to save Richpal, his sister's son, where accused Mohan Lal inflicted one injury by axe upon his head and there is finding of learned trial court that no other specific injury was found upon the body of the deceased Sahab Ram, therefore, the conviction of the accused appellants for offence under Sections 302 and 302/34 IPC is not sustainable in law.;