MAHENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 11.9.1980 passed by the learned Additional Sessions Judge, Sirohi, in Sessions Case No. 64/1979 convicting the appellant of the offence under Section 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. one hundred and in default of payment of fine to further undergo one month's rigorous imprisonment.

(2.) THE prosecution case is that on 21.1.1975, on receiving information that four trucks bearing Nos. RSM 2340, RSM 2342, DHG 562 and PHJ 1169, loaded with rice, are proceeding towards Gujarat, the S.H.O., P.S., Sumerpur, directed the Head Constable Kesu Khan, Sepoy Murad Khan and deceased Moti Singh to check the vehicles at Sumerpur Choraya. Accordingly, the said police officials arranged blockade at 3 P.M. They put a drum in the middle of the road in order to stop the vehicles so that they may check them. On 21.1.1975 at about 12 in the night, one truck bearing No. RSM 2342 arrived, which was stopped by Kesu Khan. The truck was occupied by two persons. On enquiry, the driver disclosed him name as Mahendra Singh and another person sitting beside his disclosed his name as Ramkishan. Kesu Khan took in his possession the ignition key. After sometime, truck No. RSM 2340 arrived. A signal was given to stop the said truck. The truck driver did not stop the truck and while passing through, asked Ramkishan that they are only 2 -3 policemen and, as such, they should be crushed and killed. The driver of the said truck also hit the drum, which was lying in the middle of the road. Thereafter truck No. DHG 562 arrived. In the said truck also, two persons were sitting but driver of the said truck also asked to crush and kill the policemen. The said truck also did not stop and passed through. Both the trucks bearing No. RSM 2340 and No. DHG 562 were loaded. After passing of the said truck, Ramkishan, person sitting beside the driver of the truck No. RSM 2342 exhorted driver Mahendra Singh saying that they are only 2 -3 policemen and so he should crush and kill them. Accused Mahendra Singh managed to start the truck No. RSM 2342. At that time, Constable Moti Singh was standing on the left side of the road. It is alleged that accused Mahendra Singh moved the truck No. RSM 2342 and crushed Constable Moti Singh and proceeded towards Sheoganj. Moti Singh became seriously injured. At that time, nearby hotel owners Preetam Singh and his son Kulwant Singh arrived. The Head Constable Kesu Khan asked Kulwant Singh to stay near Moti Singh and he proceeded to Police Station, Sumerpur. He lodged the F.I.R. of the incident at Police Station, Sumerpur. The police party reached on the spot and injured Moti Singh was immediately taken to the hospital for treatment. In the hospital, Moti Singh was declared dead. On the basis of the information of Kesu Khan, the F.I.R. was registered and police proceeded with the investigation. The inquest was prepared. The information was also given to nearby police stations. A blockade was arranged at Sheoganj by the police. P.W. 6 Shiv Ratan, S.H.O., P.S., Sheoganj, caught the truck No. RSM 2342 and arrested accused Mahendra Singh and Ramkishan. A case for the offence under Section 3/7 of the Essential Commodities Act was registered at the Police Station. Sheoganj. After usual investigation, police laid a chargesheet against the accused Mahendra Singh, Ramkishan and Ummaid Singh. All the accused persons denied the charge and claimed trial. During trial, the accused appellant Mahendra Singh absconded and, as such, the sessions case continued against the accused Ramkishan and Ummaid Singh. Accused Ummaid Singh was acquitted of the charge for the offence under Section 302/109 IPC. However, accused Ramkishan was convicted of the offence under Section 302/109 IPC and sentenced to imprisonment for life by the judgment of the learned Addl. Sessions Judge, Sirohi, dated 26.11.1977. Accused Ramkishan preferred an appeal before this court, being D.B. Criminal Appeal No. 508/1977. which has been disposed of by the order of this court dated 13.12.1999. On being arrested, a separate Sessions Case being Sessions Case No. 64/97 was registered against the appellant Mahendra Singh.

(3.) ASSAILING the judgment, it is contended by Shri S.R. Singhi, learned Counsel appearing for the accused appellant, that the entire case rests on the evidence of P.W. 5 Murad Khan as the other eye witness Kesu Khan has not been produced as he died during the pendency of the trial and another eye witness P.W. 2 Kulwant Singh has not supported the prosecution case and, as such, he has not been held reliable by the Trial Court. Learned counsel for the appellant has severely criticised the identification proceedings. It is submitted that the prosecution has not led any evidence to prove that the appellant was kept Baparda. In absence of such evidence, the test identification parade was of no consequence. It is also submitted that the accused appellant was arrested on 21. 1. 1975 itself but he was put to identification as late as on 7. 2. 1975. No explanation has been given for the delay in arranging the identification parade. This makes the identification parade suspicious. It is also submitted that it has been admitted by P.W. 3 Ramesh Chandra, Munsif Magistrate, Sirohi, that Kesu Khan had wrongly identified one Balwant Singh as against Mahendra Singh. Learned Public Prosecutor has supported the judgment of the trial court.