GUNA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) All the five appellants were arraigned before the learned Additional Sessions Judge Gangapur City (Distt. Sawai Madhopur) in Sessions Case No. 23/95 for having committed murder of Subudhi. They were found guilty, convicted and sentenced as under: <FRM>JUDGEMENT_158_LAWS(RAJ)9_2001_1.html</FRM> All the sentences were directed to run concurrently.

(2.) Against this judgment of conviction that the appellants have preferred the instant appeals. The prosecution story in brief is that on 09.06.1988 Hari Singh PW-3 submitted a written report Ex.P/3 to Dy. S.P. Vipul Chaturvedi (CW 2) who is turn directed-the SHO Police Station Gadhmohar to investigate the matter. The said report was written by Kamal Dass Advocate (CW 1). It was inter alia averred in the report that while polling was in progress for the Sarpanch Elections at Ronsi around 1.30 p.m. Bhondu, Bharatu, Moti, Batti lal and Prabhu shouted from the top of the Haveli of Giriraj that informant Hari Singh and other Gurjars be liquidated so that they ever forget to come to the village. At that time the informant Hari Singh PW-3 was interacting with the voters outside the Haveli. The aforesaid persons from the top of the Haveli with the intent to kill the informant and his associates fired guns resulting in injuries to several people including Subudhi who lateron died. It was also asserted in the written report that the incident was witnessed by members of the polling party and the police force present there. The Police Station Gadhmohar registered a case u/s. 147, 148, 149 and 307 Penal Code and investigation commenced. With the death of Subudhi the case was converted for offence u/s. 302 Penal Code also. As per the prosecution in the incident Subudhi lost his life and 19 other persons suffered injuries. Dying declaration of the deceased Subudhi Ex.P/50 was recorded by Shri Chandra Bhan Gupta PW-22, who at that time was Judicial Magistrate Karauli. The dying declaration was taken down at 9.45 p.m. on 09.06.1988. In the dying declaration the deceased did not name the appellants as assailants. It was given out in the dying declaration that the assailant was son of Sukhram. It is detailed out in the medico-legal report of the deceased Subudhi that there was a fire arm injury entry wound and corresponding exit wound indicating that deceased suffered only one injury. The investigating officer inspected the site and drew site plan. The statements of witnesses u/s. 161 Cr.P.C. were recorded. The appellants were arrested. Necessary recovery memos were drawn and weapons of offence at the instance of appellants were allegedly recovered. On conclusion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Gangapur City. Charges u/s. 147, 148, 302/149 and 307 Penal Code were framed against the appellants. Lateron the appellants Moti and Bhondu were charged u/s. 302 IPC. The appellants denied the charges and claimed trial. The prosecution examined as many as 23 witnesses and tendered 68 documents in evidence. In the statements u/s. 313 Crimial P.C. the appellants pleaded innocence. The defence examined four witnesses while Kamal Das, Advocate and Vipul Chaturvedi, were examined as Court witnesses 1 and 2 respectively. On hearing the final submissions the learned trial Court convicted and sentenced the appellants as indicated hereinabove.

(3.) Shri S.R. Bajwa, learned Senior Advocate, on behalf of the appellants invited our attention to the glaring infirmities in the prosecution case. It is contended that there are material improvements upon the version disclosed in the FIR but at trial eye witnesses gave clean chit to four assailants and limit the number of assailants to remaining two assailants namely Moti and Bhondu. As per FIR it was a case of singular assault launched from roof of the Haveli belonging to Giriraj, but during trial the eye witnesses have developed the story to suggest that assailants had indulged in making assault at three different junctions and at three different places i.e. from the roof of Haveli of Girraj, from the Chabutri and near the house of Kalu Nath. It is further urged that there is a serious conflict between the version given in dying declaration by deceased Subudhi and the testimony given out by the alleged eye witnesses. The medical evidence renders no corroboration to ocular testimony. The prosecution has withheld the material witnesses. It is not known who is the author of fatal blow sustained by the deceased and from the prosecution evidence it is established that there was no unlawful assembly. The prosecution witnesses categorically stated that the impugned assault was made by two persons namely Moti and Bhondu only.