PUNJA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal filed by Punja, Mogji, Kheema and Sawji against the judgment of the Additional Sessions Judge, Dungarpur, dated March 2, 1977, by which each appellant was convicted under Sections 147,307/149, 323, 149 and 363, Indian Penal Code and sentenced to undergo rigorous imprisonment for one year on the first count, on the second to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1000/- in default of payment of fine to further undergo rigorous imprisonment for six months, on the third count to undergo rigorous imprisonment for six months and on the fourth to suffer rigorous imprisonment for six months. All the substantive sentences of imprisonment awarded on the four counts were ordered to run concurrently in the case of each appellant. It will not be out of place to mention that during the pendency of the appeal, Sawji, appellant expired on April 16, 1977. Hence the appeal filed by him abated on his death.

(2.) The prosecution case against the remaining three appellants was as follows:Punja appellants brother Pema was murdered and a criminal case was registered by the police at police station, Ganeshpur, about the offence of murder. Head Constable Shanker Lal accompanied by Constable Moti Singh, Suresh, Karan Singh and Labh Shanker came to village, Kathri Khurd where the deceased used to live, and started investigation into the case of murder. After some investigation they were carrying Pemas wife Mst. Sukhi and one Taju to the police station from village Kathri Khurd for further investigation. Along with the Head Constable and the Constables there were other persons, namely Moga, Shaker and Kachra. When the police party came out of the village and reached near a hillock, along with Taju and Pemas wife Mst. Sukhi and other above mentioned persons about 600 or 700 persons of village Torania and Morayee came there having armed themselves with lathis swords dharia bows and arrows and gun. They had come to kill Mst. Sukhi and Taju Shanker Lal, Head Constable asked these persons not to take law into their hands, but they turned deaf ears to his advice and attacked Sukhi and Taju with the weapons in their hands. As a result of beating administered to Sukhi and Taju Sukhi fell clown unconscious and her baby aged about 1/ 11/2 years fell from her lap and was lifted up by some person. Taju however tried to run away but somebody struck a blow on his head with a sword as a result of which he fell down when another person fired a shot from his gun at his left thigh. The miscreants disappeared from there as they thought that Taju had died. Shanker Lal and other Constable brought the two injured to Ganeshpur and from Ganeshpur they carried them to Dungarpur Hospital in a bus for treatment of their injuries. Shanker Lal, Head Constable came back to police station Ganeshpur, on May, 29, 1975 and lodged a report of this incident with the police on the basis of which a criminal case under Sections 148, 353, 363 and 307/149, Indian Penal Code was registered. The police made usual investigation into the matter and after collecting necessary evidence filed a charge sheet against 21 accused including the appellants in the court of the Munsif and Judicial Magistrate Dungarpur, under Sections 307, 148, 149, 353 and 363, Indian Penal Code. The learned Judicial Magistrate upon finding a prima facie case exclusively triable by the court of session committed 21 accused including the present appellants to the court of the Additional Sessions Judge Dungarpur, for trial for the aforesaid offences. The learned Sessions Judge tried all the accused persons for the above mentioned charges and found Punja Mogji, Sawji and Kheemaji accused only guilty under Sections 147, 307/149, 323/149 and 363, Indian Penal Code. The other accused were acquitted by him of all the charges, framed against them. Punja, Mogji and Sawji were also acquitted of the charges under. Sections 148, 326/149 and 325/149 and 325/149, Indian Penal Code. The learned Additional Sessions Judge, accordingly convicted and sentence the appellants, in the manner stated above. Aggrieved by their convictions and sentence the 3 appellants Punja, Mogji and Kheema have preferred this appeal.

(3.) I have carefully gone through the record of the trial court and heard Mr. P. R. Chaudhary, learned counsel for the appellants and Mr. D. S. Shishodia and Mr. M. C. Bhati, public prosecutor. Firstly, it has been contended on behalf of the appellants that the AddI. Sessions Judge committed an error in recording the conviction of the three appellants on the evidence adduced in the case from the side of the prosecution. It was further urged that the three appellants were not known to the witnesses prior to the alleged occurrence and therefore an identification parade was held wherein the three appellants along with other accused were put up for identification but the prosecution could not prove those previous identification proceedings by summoning the Magistrate, who conducted the identification parade, to give evidence in the case. In short, the contention put forward by the learned counsel for the appellants is that the evidence of identification of the first time in the trial court is inherently weak, because it is not supported by an earlier test identification. The Public Prosecutor, on the other hand, urged that the eye-witnesses have correctly identified the three appellants in the court and the trial Judge believed the substantive evidence as to the identity of the appellants and so the entire prosecution case cannot be thrown out merely on the ground that the Magistrate, Who conducted the test parade, has not been examined at the trial to prove test parade memo prepared by him.