GOPAL KRISHNA SHARMA, J. - (1.) DHANPAT has preferred the appeal No. 166/87 against his conviction u/s. 302 I. P. C. passed by the Addl. Sessions Judge, No. 1 Alwar, whereby he has been sentenced to life imprisonment and a fine of Rs. 2,000/- in default of payment of fine, to further undergo one year's simple imprisonment.
(2.) S. B. Cr. Appeal No. 148/87 has been preferred by Malloo Ram, Phunni Ram and Kishan against the same judgment dt. 28/3/87 passed by the Addl. Sessions Judge, No. 1, Alwar, by which the appellant Malloo Ram has been found guilty u/s. 326 I. P. C. and sentenced to 4 years' R. T. and a fine of Rs. 500/-, in default of payment of fine, to further undergo 3 months' S. T. The appellants Phunni Ram and Kishan have been found guilty u/s. 325 I. P. C. and sentenced to one year's R. I. and a fine of Rs. 500/-, in default of payment of fine, to further undergo 3 months' R. I. As both the appeals have been preferred against the same judgment in the Sessions Case Mo. 62/86 State Vs. Dhanpat & Others, they are disposed of by this common judgment. On the basis of Parcha-bayan given by Fazru on 26/7/84 to S. H. O. , Kotwali Alwar, the Police registered the F. I. R. No. 104/84. In the Parcha-bayan Shri Fazru has stated that his nephew Roshan was going on cycle from Jadoli to Puthka with milk-drums. In the jungle, near the fields of Lallu and Mauzkhan, Dhanpat, Kalla, Omraj, Malloo, Deepchand, Ramswaroop, Phunni, Krishna, Pallo and Sunderdas met him. Deepchand and Krishna demanded money from Roshan for purchasing she-buffalo. Roshan denied to give the money. At this Roshan was caught by these persons and they forcibly took away Rs. 25,00/-from his pocket and also bet him. Roshan ran away towards village. Subhankhan, Rehman, Dinmal, Hasankhan and Rehmati w/o Suleman who were working nearby in the fields ran to rescue Roshan. Dhanpat and others who were armed with lathi, farsi and gun, started inflicting blows to them. Sunderdas inflicted farsi blow on the right hand of Fazru. Dhanpat fired with gun which hit Fazru in the stomach and on the chest below the neck. Some pellets also hit Rehmati, Subhankhan, Dinmal and Rehman were given lathi and farsi blows. After beating them they went away and villagers on hearing cry arrived at the spot and they were taken in the tractor to hospital and were admitted. The cycle and milk-canes which were taken away by the assailants were again snatched away from them. On this report a case u/s. 147, 148, 149, 323, 324, 307 & 392 I. P. C. was registered. Fazru died in the hospital, so case u/s. 302 I. P. C. was also registered against Dhanpat. Shri Gauri Shankar PW 16, the S. H. O. , started investigation and inspected the site. The site plan Ex. P. lwas prepared. The cmpty-cartriedge and blood-stained earth were found on the spot and seized, which have been noted in the site-plan. The accused persons were arrested and they gave information for the recoveries of lathies, farsi and they were recovered at their instance. The accused Ramswaroop gave information for the recovery of 4 milk-canes from his house and at his instance they were recovered. Similarly, on the information and at the instance of accused Deepchand one cycle "eastern Star" was recovered vide memo Ex. P. 73. On the information of accused Omraj, the Police recovered one 12-bore- Katta and on the information by Dhanpat accused one 12 Bore-gun was recovered. All the recovered articles were sent to Forensic Science Laboratory for examination and the reports are Exs. P. 89 and P. 90. After completing usual investigation the Police submitted challan against 18 accused-persons u/ss. 148, 302, 302/149, 307, 325, 323 I. P. C. and u/s. 3/25 Arms Act.
(3.) THE learned trial Court framed charges against the accused-persons and they pleaded not guilty and claimed trial. The prosecution has examined 16 witnesses to establish its case. The accused - persons have denied the allegations made against them. The contentions of the accused-persons is that on 24/7/84 Shamsher was grazing cattle and Nabikhan and Shammi Khan were working in the field when she goats of Deepchand and Ramswaroop entered the field of 'bajra'. They were taken out by Shamsher and while taking them to cattle-ponds. Nanakdei and Ramdei snatched away those she - goats. Nabikhan and Shammikhan then gave each two slaps. It was also contended that they were beaten by those persons. The trial Court while concluding trial did not find any of the accused guilty of the offence u/s. 392 I. P. C. and all were acquitted from this charge. The accused Omraj and Dhanpat were also acquitted from the charge u/s. 3/25 Arms Act. The accused Dhanpat has been found guilty u/s. 302 1 P. C. and accused Malloo has been found guilty of the offence u/s. 326 I. P. C. , accused Phunni and Kishan were found guilty u/s. 325 I P. C. The accused-persons Phunni, Sunderdas, Bhim, Ramswaroop, Prem, Deep Chand and Charan Das were found guilty u/s. 323 I. P. C. The remaining 7 accused persons were not found guilty of any charge and they have been acquitted. For the offence u/s. 323 I. P. C. the accused-persons have been given benefit of probation. Thus seven accused-persons have been acquitted, seven accused persons have been granted benefit of probation and 4 accused-persons (the appellants) have been sentenced as mentioned above. The learned counsel for the appellants argued that the Police registered the case u/s 392 I. P. C. against the accused-persons. A charge was also framed by the trial Court, but after recording evidence, the trial Court found that the story of snatching or forcibly taking money from Roshan is false, all the accused-persons have been acquitted from this charge. This shows that the Police has submitted a false story. The genesis of the story was that Roshan was going on cycle with four milk-canes when he was stopped and money was demanded. On refusal to give money by Roshan, a sum of Rs. 2,500/- were forcibly taken away from his pocket and also was beaten. There is no medical evidence to prove the injuries of Roshan. It means that the story of beating of Roshan is also a false one. It was also argued that it is not possible to believe that Roshan would go to sell milk taking a sum of Rs. 2,500/- in the pocket. If we see the statement of Roshan PW 1, the prosecution story is falsified. Roshan has stated that he was caught by Malloo when he was going on cycle with milk canes. Ramswaroop to red his pocket of the shirt. He then ran away. He has not stated that he was beaten by those persons. His only statement is that a sum of Rs. 2,500/- have been snatched away from his pocket. He has specifically stated that he did not receive any injury. Thus from the statement of Roshan PW 1, the genesis of the prosecution story has been falsified. ;