MAHESH Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by Mahesh son of Dibbu Mehtar against the judgment and order dated 13.02.1991 passed by the Ist Additional Sessions Judge, Aligarh in Sessions Trial No. 662 of 1987 by which the appellant, along with Gajendra Singh @ Gajpal son of Girraj Singh Jat; and Jagdish son of Ram Swarupa Mehtar, has been convicted for offence punishable under Section 302 read with Section 34 I.P.C. and awarded life imprisonment as well as fine of Rs. 2,000/- and, in case of default in payment of fine, to undergo one year additional rigorous imprisonment. The other two convicted accused, namely, Jagdish and Gajendra Singh, had jointly filed a separate Criminal Appeal No. 232 of 1991 which stood abated as they expired during the pendency of appeal. Thus, this judgment deals with the appeal filed by Mahesh only.

(2.) Briefly put the prosecution case is as under. The deceased - Mahendra Singh was working as a Homeguard attached to Police Station (for short P.S.) Pisawa, Aligarh. Like every day, on 11.07.1987, at about 6.45 p.m., he, along with his father Todar Singh (informant-P.W.1) who had to sleep over night at the shop of his other son (Mehtab Singh) at Pisawa, was going on a bicycle to P.S. Pisawa to attend his duty. As they reached near Kumargarha Nala, four persons, namely, Jagdish son of Swarupa Mehtrar; Mahesh son of Dibbu Mehtar (appellant); Gajendra Singh @ Gajpal son of Girraj Jat; and an unknown person (later disclosed as Biri Singh), who were all hiding behind Patel bushes, came out and surrounded them. Gajendra shouted at Mahendra (the deceased) as to why he did not allow the pigs of Jagdish and Mahesh to graze in his field. Upon which, the deceased - Mahendra responded by saying that they would have destroyed his maize crop. On hearing the reply, Gajendra exhorted the other accused persons to finish off Mahendra (deceased) whereafter all four accused took out their knives and after putting the deceased on ground started assaulting him with knives, as a result, the deceased received injury on his neck. Witnessing attack on his son, the informant (P.W.1) cried for help, upon which, villagers, namely, Gulzar (P.W.2); Girraj (not examined); Tara Singh (not examined); and Harveer Singh (not examined) arrived. On seeing them coming, and sensing that the deceased had died, the accused escaped. Thereafter, Mahendra was brought in an injured condition to P.S. Pisawa where the report (Ex. Ka 1) was scribed by Kishan Singh (not examined) on dictation of the informant (P.W.1). After signing the same, PW1 got the first information report (FIR) (Ex Ka 2) registered at P.S. Pisawa at 20:15 hours (8:15 p.m.) which was entered by Head Moharir Ramvir Singh (P.W.3) in the register on 11.7.1987 as case crime no.32 of 1987 for offences punishable under sections 307/324 IPC. Thereafter, P.W.5 - Rajendra Singh Tomar, Investigation Officer (I.O.), proceeded to record the statement (Ex Ka 10) of Mahendra Singh (the injured), under section 161 CrPC, at about 9.00 p.m. However, as the condition of the injured was very serious he was taken to Pisawa hospital. There no doctor could be found. Hence, he was taken to J.N. Medical College Hospital, Aligarh and was admitted there at about 10.50 p.m. However, he succumbed to his injuries at the hospital at about 11.20 p.m. on 11.07.1987 itself. As the said hospital was under P.S. Civil Lines, Aligarh, information of Mahendra Singh's death was given by the hospital to P.S. Civil Lines, Aligarh, which prepared the inquest report (Ex Ka 12). Thereafter, upon receipt of death report, on 12.7.1987, the offences were altered and Sections 302 read with 34 IPC were added.

(3.) The lodging of the FIR was proved by P.W. 1 and P.W.-3. Dr. Mohd. Arshad (P.W.4), who had examined the deceased - Mahendra at the hospital, proved the injury record (Ex Ka 5) and confidential memo (Ex Ka 6) to demonstrate that Mahendra (the deceased) was brought by his brother Mehtab (not examined) to the hospital at 10:50 p.m. on 11.07.1987 as a case of cut-throat (stab injury neck), where he expired at 11:20 p.m. The post mortem report (exhibit Ka-13) was proved by Dr. R.P. Gupta (P.W.6) of Malkhan Singh Hospital, Aligarh. The post mortem examination disclosed a solitary ante mortem injury as follows:-