SHAMSHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is an appeal against the judgment of Additional Sessions Judge, Jind whereby he convicted Shamsher son of Jagat Singh and Ram Niwas son of Chandu Ram under Sections 302/34 IPC and sentenced them to undergo life imprisonment and to pay a tine of Rs. 2.000/ - each. In default of payment of fine, to further undergo rigorous imprisonment for one year. Further they were convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. Both the sentences were to run concurrently.

(2.) THE case of prosecution is unfolded by the statement Ex. PB of Krishan given to SI Kanwarjit Singh on 17.11.1995 at 7.45 p.m. near the place of occurrence. Krishan states that he is a resident of Village Kinnar. About 10 years back, Mohinder son of Chandu was murdered and eight persons including him were challaned. Pala Singh son of Tek Ram, resident of Village Kinnar was convicted and sentenced and the remaining seven including Krishan were acquitted. After this incident, Krishan and his family were not on speaking terms with the family of Chandu. Two months earlier to the present occurrence, Shamsher, Ram Phal etc. had assaulted and injured Sube Singh, the father of Krishan, with jailies and Barchhas (spears) and in order to save his father, Krishan tired a gun shot from his licensed weapon, which hit Shamsher Singh on his ear and Ramphal on his foot. Krishan's father Sube Singh and his brother Om Parkash and Krishan were challenged under Section 307 of the IPC at Police Station Narnaiand. All three are now on bail. On 17.11.1995 Krishan along with his brother Shamsher and his Chacha (father's younger brother) in relation Inder. had come to Jind to purchase household articles and to get repaired the head of the engine. At about 6.30 p.m. after getting the head repaired, they were going towards Bankhandi Jind from Bliwani Road, Jind. Krishan's brother Shamsher was ahead of them, carrying the head of the engine on his left shoulder. When they reached near Bankhandi Jind octroipost, Shamsher son of Jita armed with sickle and Ram Niwas son of Chandu armed with a knife came from behind the octroi post. Ram Niwas raised a Lalkara to finish the enemy. Shamsher (accused) gave a sickle blow on the right shoulder of Krishan's brother Shamsher, whose left thumb got chooped off. The second blow was given by Shamsher (accused) to Shamsher (deceased) with the sickle, which hit on the backside of the neck of the deceased The third blow was given to Krishan's brother on his head, which hit him on his left temporal region. As a result of which, Krishan's brother Shamsher (deceased) fell down on the ground and while he was lying on the ground, Ram Niwas gave knife blows to him on his back, right side of buttocks and three injuries on his chest. Shamsher (accused) gave another knife blow, which hit on the forehead of Shamsher (deceased). Krishan and his uncle rushed to the spot. On hearing the noise, two constables also reached the spot. Shamsher (accused) and Ram Niwas were caught red - handed at the spot along with their weapons. Shamsher (deceased) succumbed to his injuries at the spot. On the basis of this statement, FIR Ex. B/1 was recorded on 17.11.1995 at 8.00 p.m. The special report reached the Ilaqa Magistrate, Jind on the same day at 11.I0 p.m.

(3.) LEARNED Counsel for the Appellants has argued, that after going through the evidence and the statements especially of Constable Mohinder Singh PW 12, who w s allegedly on traffic duty on that day, it seems that the mob had arrested the Appellants and handed over the Appellant to him. No blood stains were found on the clothes of Constable Mohinder Singh PW 12, though he has stated, that he had showed indulgence with the body of the deceased. Krishan PW9 in his testimony before the Court has admitted, that Inder Singh PW1O had met them at the Bus Stand, but had not accompanied them from the village. This is in contradiction to the statement of Inder Singh PW 10, who has stated that all of them came together from the village. The mechanic, who had repaired the head of the engine, has not been examined, as he was a crucial witness to prove the reasons for the complainant party to have come to the town. Neither the mechanic has been examined, nor his name has been spelt out in the list of witnesses of the prosecution. It is the case of the prosecution that the deceased was carrying the engine head on his left shoulder when he was attacked by the Appellants, but Krishan PW9 in his testimony before the Court has stated, that they did not collect the engine head from the spot nor was it taken into possession by the police. It was after 5 -6 days of the incident that they collected the engine head from the police station. Inder Singh PW 1 has stated, that the engine head was lying at the spot near the octroi post from where it was collected after five days. This glaring discrepancy as to from where the engine head was collected, shows that both Krishan PW9 and Inder Singh PW 10 were not present at the time when the occurrence had taken place. The Investigating Officer SI Kanwarjit Singh PW 13 has stated, that he did not notice the engine head at the place of occurrence, not lie did any verification of it.