STATE OF RAJASTHAN Vs. MAHENDRA SINGH

JUDGEMENT

(1.) THE is an appeal filed by the State of Rajasthan under Section 417 Old Cr. P.C. against the judgment of the learned Sessions Judge, Sriganganagar dated 29. 7.70, by which Jagdish and Vinay Kumar accused were acquitted of the offences punishable under Sections 147, 304 part I read with Section 149 IPC. and Mahendra Singh was acquitted of the charges under Sections 157 and 304 part I, IPC. but convicted of an offence under Section 304 pert II, I.P.C. Likewise, Narendra was acquitted of the offences under Sections 304 part I read with Sections 149 and 147 I.P.C. but was convicted under Section 323 I.P.C only As Mahendra Singh and Narendra were below 21 years of age and were not previous, convicts they were not sentenced to imprisonment end were released on probation under Section 6 of the Probation of Offenders Act, upon furnishing personal bonds of Rs. 5000/ - and Rs. 500/ - with one surety in the like amount respectively with stipulation to appear and receive sentence whenever called upon to do so during a period of three years and in the meantime to keep peace and be of good behaviour. Aggrieved by the order of acquittal the State preferred an appeal against Mahendra Singh, Ninda alias Narendra, Vinay Kumar alias Billa and Jagdish, hut the appeal was summarily dismissed Vinay Kumar against all the aforesaid respondents except Mahendra Singh vide order of this Court dated 9.9.71. Hence, the appeal filed by the State is restricted only to the acquittal of Mahendra respondent under Sections 304 part I and 147 I.P.C Before dealing with this appeal, we thick it necessary and convenient to state the brief facts of the prosecution case as narrated by Sakti Singh, brother of the deceased in his First Information Report, which was lodged by him with the police on 29.11.67 at police station, Sriganganagar. It was alleged in the First Information Report that on 29.11.67, Sakti Singh accompanied by other students had gone to college ground in the morning, as it was N.C.C. day. When the prizes were distributed in the college ground, Sakti Singh was talking with a student, who was sitting by hit side. Ninda alias Narendra accused also was sitting in the front line. Ninda asked Sakti Singh and the student not to talk to each other and immediately thereafter, abused Sakti Singh in a foul manner and kicked him on his right eye. This led to a quarrel between the two but other students intervened and Sakti Singh started for taking refreshment along with his companions in the S.D. College, When he and his associates were passing by the tide of the octroi(sic)pon, Ninda alias Narendra, Vinay Kumar alias Billa and Mahendra and other three or four students met them in the way. Sakti Singh's brother Paviter Singh, Bhupendra Singh and Jaskaran Singh also came there for taking him to his house, as they apprehended that scuffle might not take place. When Sakti Singh and his companions including Paviter Singh, Bhupendra Singh and Jaskaran Singh proceeded further then all the accused along with their three or four associates formed an unlawful assembly having a common object to kill Sakti Singh and party and in prosecution of the said common object of the unlawful assembly, all of them assaulted Sakti Singh and his companions. Mahendra respondent struck a blow on the stomach of Paviter Singh with a knife while Narendra inflicted a blow on his back with a hockey stick and then Billa caught hold the body of Pavitra Singh and other accused gave him kicks and fist blows and openly said that he would be killed. Sakti Singh was also slapped by the brother of Prakash. An attempt was made to rescue him by Jagjeet Singh, Bhupendra Singh and Jaskaran Singh, who were eye witnessing the occurrence. In the course of such attempt, Bhupendra Singh received a hockey blow on his body. Sakti Singh and his companions raised hue and cries and all the accused ran away from there while leaving Pavitra Singh in an injured condition. Pavitra Singh was immediately removed from the place of occurrence to the hospital, wherein he was admitted and died after three days Dr. Shiv Kumar Sharma examined the body of Pavitra Singh when the latter was alive and found the following external injuries on it:

(2.) INJURY no. 1 was caused by sharp weapon and vas designated at grievous by the doctor. Injury no. 2 was simple in nature and was caused by blunt weapon. The duration of the injuries was within one day. Dr. S.K. Sharma performed operation on Pavitra Singh and found that his liver was punctured The liver vas repaired and spunj stones pieces were inserted and the abdomen was closed but Pavitra Singh died on 2.12.67 at 1.45 a.m. It will not be out of place to mention that dying declaration of the deceased was recorded on 29.11.67 by Magistrate 1st Class, Ganganagar on the advice and in the presence of Dr. S.K. Sharma. After the death of Pavitra Singh, this very doctor performed post -mortem examination over the dead body and on dissection of the body, observed as follows:

(3.) SHAKTI Singh and Bhupendra Singh also were medically examined by Dr. S.K. Sharma as to the injuries received by them. The doctor found the following injuries on the bodies of Sakti Singh and Bhupendra Singh: