of Rajasthan Vs. Nana & Ors  Insc 796 (2 August 2007)
Arijit Pasayat & P.P.Naolekar Dr. Arijit Pasayat, J.
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.
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.
Background facts in a nutshell are as follows:
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.
and Narsa PW-3 were caught by accused persons.
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.
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 Sections 302/34, 302/149, 324/149, 325/149,
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.
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.
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.
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.
There is no appearance of respondent in spite of service of notice.
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.
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.
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 IPC. We find no infirmity in the reasons
indicated to warrant interference.
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.
appeal so far as respondent Sawa is concerned, stands dismissed.
appeal is allowed to the aforesaid extent.