KISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated April, 1978, of learned Sessions Judge, Kota, whereby the accused appellant Kishan son of Gordhan Singh was convicted on the charge of murder of Balli Sardar alias Amarjeet Singh and was sentenced to imprisonment for life and a fine of Rs. 200/- or, in default of payment of fine to further rigorous imprisonment for two months.

(2.) THE prosecution story in nut-shell is that Kailash Chandra PW 1 runs a betel shop in the name and style of Pawan Pan Bhandar situate near the temple of Mori Ka-Hanumanji in purani Dhanmandi, Kota. His brother Subhash's hotel is situated adjacent to his shop. In the morning of the fateful day Kailash Chandra and his brother Subhash reached their respective shops. Jugal Kishore (PW 3) and Ramesh (PW 4) were sitting on the wooden platform of the said shop of Kailash Chandra. Narain a servant of Subhash served tea to Jugal Kishore and Ramesh. He then went away to serve tea at the office of Ram Krishana Transport Company. A little later, Amarjeet Singh deceased and Surendra Kumar (PW 5) arrived that side, riding on a bicycle. Surendra Kumar was driving the bicycle and Amarjeet Singh was sitting on the rod in front of him. When they reached near Pawan Pan Bhandar, accused appellant Kishan rushed towards the deceased and thrust a knife blow in his chest. After taking out the knife, the accused ran away towards Purani Dhan Mandi. As a result of the injury, Amarjeet Singh felt giddy and fell down on the ground near a tree.

(3.) MR. K. K. Mehrishi, learned counsel for the accused-appellant has urged that there are some out-standing features of the case which, according to him, are sufficient to throw doubt on the entire prosecution case. There is no evidence of motive for commission of the crime by the accused-appellant. At best, the prosecution evidence shows that the accused appellant did not like the deceased and had petty quarrel with him which cannot be considered sufficient to constitute motive to commit murder. Learned counsel urged that the prosecution witnesses were detained by the police for two days and their statements were recorded against their wishes. The investigating officer was not fair to the accused. He compelled PW 1 Kailash Chandra to write down Ex. P/l at the dictation of the investigating officer after completing the preliminaries of the investigation. The story narrated in the first information report itself suggests that it was not written at the time it purported to have been written. It is ante-dated. It was vehemently urged that PW 3 Jugal Kishore is an unreliable witness. He had no reason to be on the scene of occurrence. He could not have been present at the time of the alleged assault by the accused, because at the relevant time he was with DW 1 Maheshi Kumar at Railway Station. PW 3 Jugal Kishore did not know the accused by name and as such his identification of the accused for the first time in the Court without any test identification parade is absolutely valueless. He further urged that the prosecution had discredited PW 1 Kailash Chandra, PW 2 Subhash Chandra, PW4 Ramesh, PW5 Surendra Kumar and PW 6 Prabhu Lal and cross-examined them. They were discredited altogether not merely to get rid of a part of their testimony and no corroboration could be sought from the testimony of such witnesses. PW3 Jugal Kishore who is the only witness against the accused to prove the serious charge of murder, had modulated his evidence to suit a particular prosecution theory for the deliberate purpose of securing conviction of the accused. Such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony. The conduct of this witness was abnormal. He neither went to the father of the deceased nor to the police and immediately left for his work without caring to know the nature of the injury sustained by the deceased who was very well known to him since childhood. The common course of human conduct require that either he would have raised a cry for help or would have rushed after the accused to catch hold of his or at least would have taken the injured to the hospital for providing him the first aid. He further urged that the first information report Ex. P/3 was received by the Magistrate on November 24, 1977, i. e. after 24 hours of the occurrence. This inordinate delay in despatch of the first information report was recorded much later than the date and time stated therein. It afforded sufficient opportunity to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. Learned counsel urged that in the case in hand most of the prosecution witnesses have admitted that they were detained by the police for more than 24 hours and as such in the proved circumstances of the case it can be safely said that the prosecution at first settled the story, compelled the witnesses to make statements fitting with the case set up by them and thereafter recorded the first information report.