MOHAMMAD RAFIQ,J. - (1.) This appeal seeks to challenge the judgement dated 25th June, 2011 by which the accused-appellants have been convicted and sentenced in the following manner: "Hanuman Sahai, Ram Gopal @ Gopal, Nanchu Ram, Bhag Chand and Bhagwan Sahai - Under Section 148 IPC - one year simple imprisonment with a fine of Rs. 500/- each; in default whereof to undergo 15 days simple imprisonment. Under Section 452 IPC - three years simple imprisonment with a fine of Rs. 1000/- each; in default whereof to undergo one month simple imprisonment. Under Section 323/149 IPC - three months simple imprisonment with a fine of Rs. 500/- each; in default whereof to undergo 15 days simple imprisonment. Under Section 325/149 IPC - three years simple imprisonment with a fine of Rs. 1000/- each; in default whereof to undergo one month simple imprisonment. Under Section 302/149 IPC - life imprisonment with a fine of Rs. 2000/- each; in default whereof to undergo two months simple imprisonment. Thakarsi - Under Section 148 IPC - one year simple imprisonment with a fine of Rs. 500/- each; in default whereof to undergo 15 days simple imprisonment. Under Section 452 IPC - three years simple imprisonment with a fine of Rs. 1000/- each; in default whereof to undergo one month simple imprisonment. Under Section 323/149 IPC - three months simple imprisonment with a fine of Rs. 500/- each; in default whereof to undergo 15 days simple imprisonment. Under Section 325 IPC - three years simple imprisonment with a fine of Rs. 1000/- each; in default whereof to undergo one month simple imprisonment. Under Section 302/149 IPC - life imprisonment with a fine of Rs. 2000/- each; in default whereof to undergo two months simple imprisonment. All the sentences were ordered to run concurrently."
(2.) The facts of the case are that a written report was submitted by one Narsi at Police Station Jamwaramgarh, Jaipur on 19.6.2009 at 2.00 am inter alia alleging that while he was at his home in the previous evening at 5.00 pm on 18.6.2009, Nanchu came there in a tractor. He was accompanied by about 30 persons. These people were armed with 'kharwada' (kulhari), iron rods and 'lathis'. Immediately on arrival, they started beating the informant and members of his family, as a result of which, informant himself, Chittar Mal, Babulal, Gopal, Mangli, Sita, Phooli, Mamta, Mewa, Sita wife of Balram, Dhapa sustained injuries on the head, hands and legs. Thakarsi, Nanchu Ram, Hanuman, Bhagchand sons of Ganesh, Bhagwan Sahai, Gopal S/o Mahadev (Jagdish), Ram Singh S/o Bhagwan, Lokesh S/o Ram Narayan, Sher Singh S/o Gopal and women of their family namely; Manjri Devi, Nanchi Devi, Sant Devi, Geeta Devi, Sushila Devi, Kiran, Sita Devi, Mangli, Chhoti Devi, Navli, Nana Devi were the assailants. 6-7 of their relatives, out of which Narayan R/o Village Gharwada, Rameshwar R/o Sundar Ka Bas Parta and Kishna R/o Manpura were also with them. Thakarsi, Nanchu Ram, Hanuman Sahai, Bhag Chand had 'kharwada' (kulhari) with them and caused injuries to Chhitar, Gopal, Babulal, Mewa, Phooli Devi and informant on the head. Others caused injuries on the members of the complainant party by 'lathi' and iron rod. Out of them, Babulal, Gopal, Chittar, Mewa, Dhapa, were admitted in SMS hospital, Jaipur and their condition was quite critical. Police conducted the investigation. During the course of investigation, injured Chittar succumbed to his injuries, which led to addition of the offence u/s.302 IPC. Charge sheet was filed against the accused-appellants Hanuman Sahai, Bhag Chand, Bhagwan Sahai and Ram Gopal @ Gopal for the offences u/ss. 147, 148, 149, 341, 323, 325, 452 and 302 IPC. As against accused-appellants Thakarsi, Nanchu Ram and other co-accused persons, investigation was kept pending under Section 173(8) Cr.P.C. The case being triable by the Court of Sessions, was committed to the Court of Sessions, Jaipur District, Jaipur from where, in turn, it was made over to the court of learned Additional Sessions judge, Fast Track, No.1, Jaipur District, Jaipur for trial. Subsequently, supplementary charge sheet was filed against Thakarsi and Nanchu Ram as also other co-accused persons for the self same offences. Their case was also committed to the trial court and the trial was consolidated. The learned trial court framed the charges for offence u/s.148,452, 323, 325 and in alternative u/s.325/149 and 302/149 IPC. The accused denied the charges and claimed trial. Prosecution in support of its case examined 27 witnesses and got exhibited 40 documents. The accused-appellants in examination u/s.313 Cr.P.C. pleaded false implication. The defence examined 4 witnesses and exhibited 38 documents. After hearing the parties, the trial court, convicted and sentenced the accused-appellants in the manner as indicated above. Hence this appeal.
(3.) Shri V.R. Bajwa, learned counsel for the accused-appellants has argued that the trial court has erred in law while mechanically convicting the appellants for the alleged offence. Even though the prosecution evidence is short of the required standard of proof beyond reasonable doubt. The fact that out of 15 accused, who went for trial, 9 have been acquitted and therefore has caused serious dent to the veracity of the prosecution case. The appellants, therefore, could have been convicted on the self same evidence. If the witnesses are speaking truth, the case set by them was so interviewed with each other that the truth and falsity i.e. grain and chaff could be possible separated. The learned trial court has erred in law in making out a new case for the prosecution, which led to miscarriage of justice. The medical evidence does lend any corroboration to the ocular testimony of the prosecution witnesses, which puts a grave penumbra of doubt on prosecution version.;