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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 330/1993
1. Gajendra @ Pappu S/o Laxmichand
2. Devendra @ Devkinandan S/o Sh. Radhamohan Nai
Both R/o Sultanpur-Dist. Kota (At present in District Jail, Kota)
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Harendra Singh with
Mr. Dharmendra Choudhary
For Respondent(s) : Mr. Mahender Meena, PP
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
28/03/2024
1. Instant S.B. Criminal Appeal is preferred by the appellants-
accused Gajendra @ Pappu and Devendra @ Devkinandan
aggrieved from the order of conviction and sentence dated
23.08.1993 in sessions case No. 343/1991 passed by learned
Special Judge, SC/ST (POA) Cases, Kota wherein the petitioners
Gajendra @ Pappu and Devendra @ Devkinandan were convicted
under Sections 307 and 324 IPC and Sections 307/34, 324/34 IPC
respectively and further sentenced to undergo rigorous
imprisonment of 7 years with fine of ₹500/- and rigorous
imprisonment of 1 year respectively.
2. In brief, the facts of the matter are that on the basis of
Parcha bayan (Ex.P-8) of PW-5 Nand Kishore, FIR No. 44/1991
was registered at P.S. Sultanpur District Kota (Ex. P-9).
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3. After completing the investigation, police had filed the
charge-sheet against the appellants herein and Brij Sunder.
Learned Trial Court has framed the charge under Section 307 IPC
read with Section 3(2)(5) of SC/ST (POA) Act, 324 IPC and 4/25
Arms Act against Gajendra and Devendra but under Sections
307/34 IPC read with Section 3(2)(5) SC/ST (POA) Act, 307/34
IPC against Brij Sunder. During Trial, 15 witnesses were examined
by the prosecution to establish the charge. Accused were
examined under Section 313 Cr.P.C. wherein they opted to led
defence evidence. Two witnesses DW-1 Ram Lal and DW-2 Zakir
Hussain, were examined in support of the defence. Learned Trial
Court after concluding the arguments had acquitted Brij Sunder
from all charges whereas acquitted Devendra @ Devki Nandan and
Gajender @ Pappu from charge under Section 4/25 Arms Act and
Section 3(2)(5) of SC/ST, (POA) Act, but appellant-accused
Gajendra @ Pappu was convicted under Section 307 and 324 IPC
and Devendra @ Devki Nandan under Sections 307/34 and 324/34
IPC.
4. Learned counsel for appellant while relying upon the
grounds of appeal would submitted that as per the story of
prosecution, three persons assaulted the injured, but no specific
attribution was alleged. He further submitted that testimonies of
Chotte Lal, Nand Kishore and Om Parkash indicate that they have
not disclosed, who made assault on which part of the body of the
injured. He further submitted that PW-5 and PW-6 are real
brothers and their different versions about the assault clearly
indicated that they were not eye-witnesses. He specifically
referred to the admission of PW-6 Om Parkash and submitted
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that he is not an eye-witness. He also submitted that according to
PW-5 Nand Kishore, when he reached the spot, one blow on
abdomen of Chotelal was caused in his presence but all other
blows were caused prior to his reaching the spot. He further
submitted that PW-5 did not attribute the blow (assault) on
abdomen to any of the appellants. He submitted that testimony of
PW-5 Nand Kishore and PW-6 Om Parkash cannot be read as an
eye-witness in support of PW-15 Chotu. He also submitted that
PW-2 Bhawani Shankar, PW-3 Hari Vallabh and PW-4 Prabhu Lal
have turned hostile and not supported the version of the
prosecution. He referred to the cross-examination of PW-15 and
submitted that at the time of beating no one came to rescue PW-
15 and even PW-15 did not attribute any specific blow to any of
the appellant. He also submitted that the cross-examination of
PW-15 clearly indicated that the incident took place due to sudden
provocation and there was no pre-meditated assault by the
appellants. Learned counsel submitted that the Trial Court has
committed serious error while convicted Devendra @ Devki
Nandan without any evidence of common intention. At last, he
submitted that the appellants are facing trial since 1991, and a
lenient approach should be adopted against them. He also
submitted that the appellants be released on probation or
sentence already undergone.
5. Aforesaid contentions were opposed by learned Public
Prosecutor. Learned Public Prosecutor submitted that the Trial
Court after considering the material on record has rightly
convicted the appellants, therefore, there is no scope of
interference in the order of conviction and sentence.
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6. Heard learned counsels for the appellants and learned Public
Prosecutor. Perused the record.
7. A perusal of the evidence led by the prosecution clearly
indicate that on the basis of oral statement Ex. P-8 of Nand
Kishore on 30.04.1991 the report was registered by police. Ex. P-8
and P-9 clearly indicate that the incident was occurred at 9.45 P.M.
and report was received at 11.45 P.M. Thus, there was no delay in
reporting the matter to the police. In Ex. P-8 names of Bhawani
Singh, Om Parkash and complainant Nand Kishore were
mentioned as eye-witness. Out of the aforesaid PW-2 (Bhawani
Shankar) turned hostile and did not supported the version of
prosecution. PW-6 Om Parkash who is brother of injured PW-15
Chotu has admitted in cross-examination that the place of incident
is not visible from his house. In Examination-in-Chief he deposed
that when he reached the spot his brother was caught by Devki
Nandan whereas Gajender and Brij Sunder were giving beatings.
According to PW-6 Om Parkash he did not saw any object in the
hands of the accused. PW-5 Nand Kishore also stated that Devki
Nandan and third person gave beatings to Chotu. He also stated
that he saw them assaulting Chotu with knife but he could not
explain the attribution of specific assault by any of the
appellant/accused. In cross-examination, PW-5 admitted that
when he reached at the spot then Chottu Lal was lying on ground
in unconscious state. During the arguments, Ld. Counsel for
appellant specifically referred to the discrepancies in cross
examination of PW-5 and PW-6.
8. PW-15 Chotu, who is injured, attributed the blows of knife
upon Gajju and Brij Sunder but the Trial Court has acquitted Brij
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Sunder and no revision petition was preferred challenging the
acquittal of Brij Sunder. In cross-examination, PW-15 admitted
that after the altercation the accused had assaulted him.
Considering the aforesaid evidence a fact is quite clear that the
incident was a result of sudden altercation, and there is no
evidence of a pre-meditated fight. The evidence of PW-5 and PW-6
clearly indicates that when they reached the place of incident the
assault was almost over. PW-5 Nand Kishore admitted that when
he reached the crime scene then Chottu Lal was already fell on the
ground and he could not explain that which of appellant (accused)
was possessing knife in their hand. Similarly, PW-6 Om Parkash
reached after PW-5 Nand Kishore. Thus, PW-5 and PW-6 are not
eye-witnesses. Herein, the entire case rests on the sole testimony
of PW-15 Chottu Lal.
9. PW-13 Dr. Abdul Rehman and PW-12 Dr. H.K. Singh have
deposed that PW-15 had sustained 6 injuries and all were caused
by a sharp edged weapon. According to PW-13 these injuries were
on vital parts of the body. The surgical intervention conducted by
PW-12 (Dr. H.K. Singh) was further proved from the surgical notes
Ex. P-12 and discharge ticket Ex. P-13. PW-15 has sustained 6
stab/incised wounds caused by a sharp edged weapon. PW-15
injured, named Gajju and Brij Sunder for inflicting the blows from
knife. The admission of PW-15 also indicated that all blows were
caused within 2-3 minutes. PW-15 did not name Devendra for
causing any blow from a sharp edged weapon. No one has
deposed that Devendra had given any beating to injured to
contribute in the incident.
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10. Having considered the aforesaid, the only evidence on record
is that of PW-15 and the injuries which were supported by PW-12
and PW-13 also indicated that PW-15 has sustained injuries in the
incident but looking to his testimony, no specific role in causing
the injury was alleged against upon Devki Nandan @ Devendra.
Similarly, in Parcha bayan also the allegation on Devki Nandan was
that he tied the hands of the injured meaning thereby that no
knife blow was caused by Devendra @ Devkinandan though police
has recovered a knife from the possession of Devendra @ Devki
nandan and the Trial Court on the basis of the evidence on record
has acquitted both the appellants from the offence under Section
4/25 Arms Act.
11. The material on record establishes that the incident was due
to sudden altercation and it was not established that Devki
Nadnan had committed assault in furtherance of a common
intention. No direct allegation was found to be proved by the Trial
Court against the Devki Nandan unless there is any evidence of
common intention, the charge against Devendra @ Devkinandan
cannot be established. Section 3 IPC provides that when a criminal
act is done by several persons (more than one) in furtherance of
common intention of all, each of such person shall be liable for the
act in the same manner as if it were done by him alone. In an
order to prove this fact, a prior meeting of mind or at least on the
spot must be established from the evidence and the factum of
common intention has to be determined by drawing inference
from the circumstances established from the evidence on record.
Herein due to sudden altercation, the incident started and finished
in 2-3 minutes. Thus, there is no evidence or circumstances to
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draw inference of common intention to fasten liability with aid of
Section 34 IPC. The Trial Court has committed serious error while
convicting Devendra @ Devki Nandan for the offence under
Section 307/34 and 324/34 IPC.
12. The evidence on record clearly establishes the involvement
of appellant Gajendra @ Pappu who was also named in the FIR.
After the incident he was named by the injured and both the
witnesses who reached on the spot to save PW-15 Chotu. PW-6
further stated that he identified the voice of Pappu. The evidence
on record clearly pointed out the involvement of Gajendra @
Pappu. The testimony of PW-12 & PW-13 indicated that the
injuries were sufficient to cause death in the ordinary course of
nature. Therefore, the Trial Court has rightly convicted Gajendra
@ Pappu.
13. In view of the aforesaid, the Trial Court has committed a
grave error while convicting Devendra @ Devki Nandan for offence
under Section 307/34 and 324/34 IPC. Thererfore, he is liable to
be acquitted after getting the benefit of doubt but conviction of
Gajendra @ Pappu is liable to be upheld.
14. The Trial Court has sentenced both the appellant Gajendra
@ Pappu and Devendra @ Devkinandan for imprisonment of 7
years under Section 307 IPC nd injury report suggest that six
blows were caused to PW-15 and the injuries were dangerous to
life. All injuries were caused by sharp edged weapon, and
sufficient sentence is required to be awarded to implement the
sentencing policy. Therefore, this is not a fit case wherein benefit
of probation be granted to Gajendra @ Pappu but looking to period
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of time he faced, his sentence can be reduced as he is facing a
criminal trial since 1991.
15. In view of aforesaid, the appeal preferred by Devendra @ Devki
Nandan is hereby allowed and order of conviction and sentence dated
23.08.1993 is hereby set aside. Appellant-accused Devendra @ Devki
Nandan is acquitted from charge under Section 307/34 and 324/34 IPC.
He is required to submit undertaking in form of bond with surety under
Section 437-A Cr.P.C to the satisfaction of Trial Court.
16. The appeal preferred by Gajendra @ Pappu against conviction
under Section 307 and 324 IPC is hereby dismissed, but the sentence
order dated 23.08.1993 is hereby partially modified and he will have to
undergo sentence as under:-
(i) Under Section 307 IPC:- rigorous imprisonment of one year with
fine of ₹25000/- but in case of non-payment of fine the appellant-
accused Gajender @ Pappu shall undergo rigorous imprisonment of 3
months.
(ii) Under Section 324 IPC:- rigorous imprisonment of six months
with fine of ₹5000/- and in case of default in payment of fine, he will
undergo additional sentence of rigorous imprisonment of one month.
(iii) Both the sentences shall run concurrently.
(iv) The appellant-accused is entitled for benefit of set off under
Section 428 CPC.
17. Thus, sentence of Gajender @ Pappu stands modified accordingly.
18. With the aforesaid, the instant appeal is hereby disposed of.
19. Pending application(s), if any, also stands disposed of.
(ASHOK KUMAR JAIN),J
MONU /413