CHETAN Vs. STATE

JUDGEMENT

(1.) THE appellants Chetan and Rohtas, the two brothers are convicted for the murder of Bhopal Singh punishable under Section 302/34 IPC and Chetan for Section 25 Arms Act as well by the impugned judgment dated September 18, 1999 and vide order dated September 28, 1999 they have been directed to undergo imprisonment for life and to pay a fine of Rs. 1000/ - each for offence punishable under Section 302/34 IPC. Chetan has also been directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5000/ - for offence punishable under Section 25 Arms Act.

(2.) LEARNED counsel for Chetan and Rohtas assail the judgment on the ground that Bijender and Mamchand are planted witnesses. They know nothing about the incident. As per the testimony of Bijender the place of occurrence has been shifted to the house of Harpal whereas actually it was an open plot. Admittedly, there are variations in the rough site plan and scale site plan. Even as per the PCR call Bijender reached at the spot at 8.30 PM whereas incident took place at 7.40 PM and thus he could not be an eye - witness. Mamchand is a Police informer and has deposed in number of cases. Though the MLC notes that the history was given by the patient himself, however Bhopal Singh did not give the name of the assailants in the history. The first call to Police was given after 9.00 PM as stated by Abhay Singh PW -7. The two material witnesses to the incident were Pappu and Barjore. Pappu has turned hostile and Barjore was not examined. Though it is the case of the eye -witnesses that the injury was caused while the deceased was sitting, however as per the post -mortem Doctor the injury was when the deceased was in a lying position. There is no recovery at the instance of Rohtas. Even the recovery at the instance of Chetan cannot be relied upon as no independent witness has been associated to the recovery. The alleged katta was recovered after more than one month and thus cannot be said to be the one used for the offence without noting the similarity in the residues of the gun. The defence of Chetan and Rohtas are that they are innocent and falsely implicated and Chetan had not fired on Bhopal Singh nor any gun was recovered from the field nor had they gone to the village of Bhopal Singh on January 04, 1998 which facts have not been considered.

(3.) STATEMENT of Rakesh Kumar was recorded vide Ex.PW -8/A who stated that he was residing at Rana Park Samay Pur Badli and was doing the work of white -washing of the houses with his brothers. His uncle Bhopal with his family was residing at Ambey Garden. On that night at around 8.00 O'clock he along with his uncle Harpal who hails from their village had gone to his house at Rajeev Nagar. The buffalo of his uncle Harpal was unwell, so outside the house Harpal, Bhopal, Mamchand and the two brothers Chetan and Rohtas were talking. Rohtas was the son -in -law of his uncle Inderpal. His uncle Bhopal stated that it was too cold and some fire should be burnt. Rakesh brought cow dung, lit the fire and they all sat around the open fire. Chetan stated to his uncle Bhopal that his sister was kidnapped, that should not have been done and they should make his relations from his village Dhinsala understand. Harpal stated that 5 -7 of them would go together. On this his uncle Bhopal raised the grievance that around 2 months ago UP Police was searching them, nobody came forward to help them. On this both Chetan and Rohtas got infuriated. Both had wrapped blankets around them. Rohtas asked Chetan to fire and Chetan took out his hand with gun from the blanket and fired at his uncle Bhopal. His uncle fell down and Chetan and Rohtas ran away. In the meantime their neighbour Rajender took Bhopal to the hospital.