OM PRAKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment passed by the learned Additional Sessions Judge, Raisinghnagar dated 9. 11. 1987 by which the appellant Omprakash was convicted u/sec. 302 I. P. C. and Section 27 of the Indian Arms Act and sentenced to imprisonment for life on the first count and one year's rigorous imprisonment and a fine of Rs. 200/- in default to under go one month's imprisonment on the second Court with an order that the substantial sentences shall run concurrently.

(2.) BRIEFLY stated the prosecution case against the appellant is that he tried to outrage the modesty of Lichhma, wife of Pala Ram P. W. 7, a few days prior to the date of the occurrence i. e. 11. 7. 1986. Birbal P. W. 4 and deceased Kaluram are said to have sided Palaram and that caused annoyance to the appellant and he, in the night of 11. 7. 1986, went to the house of deceased Kaluram at 10 P. M. and fired a shot causing injury on the back of Kaluram. Kaluram was taken to Anupgarh hospital by his father Patram and 5-6 other persons. Dr. Kailash Chandra Sharma P. W. 6 sent the information vide Ex. P-5 at Police Station Anupgarh. S. H. O. Sukhdev P. W. 11 reached the hospital and recorded the statement of injured Kaluram and sent that statement to Police Station for registering the case. It was treated as first information report. Requisition was sent for recording the dying declaration of Kaluram, Puran Ram, Munsif and Judicial Magistrate, Anupgarh recorded the statement of Kaluram which is Ex. D. 2. The treating Doctor referred Kaluram to Bikaner hospital. Baluram P. W. 10 A. S. I. Thana Sadar Bikaner sent the requisition to the Munsif and Judicial Magistrate for recording the statement of injured Kaluram. By the time the Magistrate reached the hospital Kaluram had become unconscious. He breathed his last at 3p. M. in the hospital. The post mortem of the dead body of Kaluram was the conducted by Dr. B. N. Mathur, P. W. 13. the Doctor prepared the post mortem report Ex. P. 22. The Doctor observed as under:- 1. Wound of Entery:-Lacerated wound 2. 3x2. 3cm oval shaped on back abdomen in mid line on the lumbar vertebra one (L.) region placed above 117. 5cm. above the level of heel. The wound is surrounded by tahoing E. tahord ting abrasions in an are of 37. 0cm x 37 cm. The height of the deceased is 181. cm. 2. Surgically made stitched wound 2. 0 cm long in 2nd inter costal space region on left side (per pleural cavity drainage ). 3. Abrasion 2. 0 cm. x 5cm on Lt. side of chest about 15. 0cm below it. ripple & 11. 5cm. away from mid line c swelling around it. 4. Venesection Rt. incedial walledous region. "

(3.) AT the very out set it may be observed that the prosecution has led two type of evidence; one is in the form of dying declaration of the deceased which did not disclose the name of the assailant. The second set of evidence is of Shanti Devi P. W. 1, Brijlal P. W. 2 and Bhagirath P. W. 12. The pertinent. point to be determined in the case would be as to whether Kaluram was in fit condition to give statement. Another important point requiring decision would be whether the prosecution witnesses claiming to have identified the assailant had really identified him and whether prosecution has succeeded in explaining their unnatural conduct in not bringing to the notice of the S. H. O. in the night that such and such person had committed the crime,