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CASE NO.: Appeal (crl.)  817 of 2002

PETITIONER: State of Rajasthan

RESPONDENT: Nana & Ors

DATE OF JUDGMENT: 02/08/2007

BENCH: Dr. ARIJIT PASAYAT & P.P.NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      State of Rajasthan is in appeal against the judgment of  the Division Bench of the Rajasthan High Court at Jodhpur  directing acquittal of respondents Sawa and Bada while  altering the conviction of accused respondent Nana from  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)  read with Section 34 IPC to Section 304 Part II read with  Section 34 IPC.  The learned Additional Sessions Judge No.1,  Udaipur, in Sessions case No.50 of 1995 on convicting each of  the respondents for offence punishable under Section 302 IPC  read with Section 34 IPC sentenced to undergo imprisonment  for life with a fine of Rs.100/- each.  Respondent Sawa was  also convicted for offence punishable under Section 324 IPC.   For the first offence he was sentenced to undergo  imprisonment for life and to fine of Rs.100/-, for the latter  offence accused respondent Sawa was sentenced to undergo  imprisonment for one year.  Two other co- accused were  convicted under Section 323 IPC and were released on  probation.

2.      Background facts in a nutshell are as follows:

On the intervening night of 12th  and 13th  May, 1995 at  about half past 12 the accused respondents  and co-accused  Sundara and Reshma were roaming in village fair where they  met Deeta (hereinafter referred to as the ’deceased’), Gena  (PW-2), Narsa (PW-3), Uda (PW-5) and Soma (PW-9). There  were other 10-12 persons alongwith the accused respondents.   Sawa and Nana were armed with knives and the remaining  were having stones in their hands. The accused persons came  from the side of Devalchora. As soon as they were spotted by  the complainant party the latter ran towards Merpur road,  upon which Bada, Sundara and Reshma threw stones towards  them causing injuries to Gena and Soma felling them down.  Deceased and Narsa PW-3 were caught by accused persons.    Accused respondents  Sawa and Nana inflicted knife injuries  on the back of Deeta causing bleeding. In the meantime Narsa  (PW-3) fled towards the fair and was chased and injured by  Bada and Sundara causing knife injuries by which he fell  down bleeding. In the melee Deeta died and Narsa fell  unconscious.   A First Information Report (in short the ’FIR’) to the above  effect was lodged at 12.45 A.M. on 13.5.1995 by Dhanna (PW- 1). After usual investigation five persons were charged and  challaned in the court below for offences punishable under

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Sections 302/34, 302/149, 324/149, 325/149, 323/149 IPC.

Upon pleading not guilty and claiming trial the  prosecution examined 18 witnesses and exhibited 28  documents. In statements given under Section 313 of the Code  of Criminal Procedure, 1973 (in short ’Cr.P.C.’) accused  persons denied all the incriminating evidence appearing  against them and pleaded false implication. No defence  evidence was produced. Thereafter the learned trial court  convicted and sentenced the accused respondents as stated  above.

3.      The trial court placing reliance on the injured witnesses  PW 1 to 3 and 9 recorded conviction and sentence as noted  above.  Accused respondent preferred appeal before the High  Court.  The High Court was of the view held, accepting the  plea of the respondents that in the FIR and the statement  made during investigation, PW1 had stated that accused Nana  and Sawa had assaulted the deceased. But during trial he  stated that the attack was by Nana and Bada. To similar effect  was the evidence of PWs 2 and 3.

4.      Above being the position the prosecution version was  pleaded to be vulnerable.  The High Court accepted this plea,  directed acquittal of all the accused who were in custody but  so far as Nana is concerned, his conviction and sentence  under Section 302 IPC read with Section 34 IPC was set aside  instead he was convicted under Section 304 Part II IPC read  with Section 34 IPC.

5.      In support of the appeal, learned counsel for the  appellant-State submitted that the High Court has clearly  overlooked the fact that all the eye witnesses PWs. 2, 3 & 9 in  addition to PW 1 have stated that attack on the back of the  deceased was by Nana and Bada.  The High Court should not  have directed his acquittal.  It is further submitted that there  was no infirmity so far as the conviction under Section 302  read with Section 34 IPC is concerned, as case under Section  302 IPC was clearly made out.   

6.      There is no appearance of respondent in spite of service  of notice.  

7.      We find that the evidence of the eye witnesses PWs 2, 3 &  9 need to be accepted so far as assault by accused Bada is  concerned.  In spite of incisive cross examination all these  witnesses have in clear terms described the role of Bada and  accepted that he had assaulted the deceased.  The High Court  was right that in the FIR and during investigation PW 1 had  stated that Nana and Sawa assaulted the deceased.  The  statement made in the FIR is a factor which is relevant so far  as the statement of the maker of the FIR is concerned.  It does  not have any effect on the credibility of evidence of the other  witnesses who have as noted above at all stages have  categorically stated about the role played by the Bada.   Therefore merely because there was some difference in the  version of PW 1 so far as his statement in the court vis-a-vis  Statement in the FIR is concerned that does not in any way  affect the credible and cogent offence of PWs 2 and 3.   Therefore, the High Court was not justified in directing  acquittal of Bada.  But so far as the role of Sawa is concerned,  none of the witnesses had spoken anything about the role  played by him. That being so, his acquittal is in order.  The  High Court has indicated detailed reasons as to why according  to it, offence was one punishable under Section 304 Part II

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IPC. We find no infirmity in the reasons indicated to warrant  interference.  

8.      The appeal is partly allowed to the extent that the  acquittal of accused Bada is set aside and he is convicted for  offence punishable under Section 304 Part II IPC read with  Section 34 as in the case of Nana.  In the case of accused  Nana his custody was about six years.  Therefore, High Court  had directed his release. The custodial sentence shall be seven  years in case of accused Bada.

9.      The appeal so far as respondent Sawa is concerned,  stands dismissed.

10      The appeal is allowed to the aforesaid extent.