JAGMAN & LOHRE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appeals are directed against the judgment dated 13th of June, 1990 passed by the learned Sessions Judge, Dholpur, in sessions case No. 211/1988, whereby he convicted accused appellant, Jagman, of offence under Sec. 302 Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500.00 (Rupees five hundred), in default of payment of fine, the appellant was directed to further undergo six months' RI. He also convicted accused appellant, Lohre, of offence under Sec. 302/34 Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 300.00 (Rupees three hundred), in default of payment of fine to further undergo three months' RI. Both the accused challenged their conviction and sentence by filing appeal No. 260/1990, while accused, Jagman, also sent an appeal through jail authorities which has been registered as appeal No. 281/1990. Both these appeals have thus arisen out of the same judgment and are disposed of by this Court by a common judgment.

(2.) A report (Ex.P/6) was lodged at police station Sadar Dholpur, on 27th of Dec., 1987 at 10.30 a.m. by Jandail (PW-5) wherein it was alleged by him that six years before brother of Kaptan was killed in a police encounter and his brother-Banwari had escaped in that encounter. On which, Kaptan had told him that he had returned after killing his brother. On this issue, Kaptan and Prakash (both brothers) had animosity with his family. On the previous night, at about 8.30 p.m., when he and his brother-Banwari had taken meals; Banwari went out of passing urine and while he was returning, Lohre fired a shot by 12-bore pistol (katta) on his chest. At that time, Ram Dayal S/o Tulsi, Kaptan and Prakash S/o Babu, were also present. In the house all these three persons exhorted and told Lohre that Banwari should be killed. On receiving the fire shot, Banwari fell down and then went in the room. He became unconscious. At that time Ram Niwas S/o Banwari's brother in law, Chirmoli, Kashi, his mother- Koka and his wife-Shanto were also present in the house, who had seen this occurrence. Thereafter, the members of the complainant party started for hospital taking their injured brother on a cot. On the way, all the five aforesaid persons again surrounded them and asked to place the cot on the ground. On which, they lowered down the cot. Jagman, thereafter, fired two gun shots on Banwari and told that they would not permit the dead-body to be taken away. After some time, the accused went of; they brought Banwari at home who had already expired. On receipt of this report, a case for offence under Sections 147,148,149,302, 341 and 120-B, Penal Code was registered and investigation was commenced. Police arrived at the spot and the Investigating Officer (Shri Deep Chand Gautam, PW-9) made an inquest report and prepared a site plan and a site inspection memo. He got the post-mortem of the dead-body conducted and recorded the statement of certain witnesses. He, after completing investigation, submitted a charge-sheet against accused persons - Kaptan, Lohre, Prakash, Ram Dayal and Jagman in the Court of Additional Munsif & Judicial Magistrate, Dholpur who committed all the five accused to sessions for trial. Police, however' did not find a case established for conspiracy, therefore, the commitment was made for offence under Sections 147, 148, 149, 302 and 302 read with Sec. 34 IPC. The learned Sessions Judge, after hearing arguments on charge, discharged the accused, Ram Dayal, Kaptan and Prakash of offence under Sections 302, 120-B, 147 and 149 IPC. He, however, framed charges against accused, Lohre and Jagman, for offences under Sections 302 and 302/34 IPC. Accused pleaded not guilty to the charges and claimed to be tried.

(3.) Prosecution examined as many as 13 witnesses in support of its case of whom Jandail (PW-5), Ram Niwas (PW-4), Mst. Shanto (PW-12) and Mst. Koka (PW-13) as eye witnesses of the case. Besides them, one Chirmili (PW-1) was also examined but he was declared hostile. Accused denied the occurrence and stated that Banwari was rascal who had enmity with several persons and had committed edacities and somebody killed him due to enmity but they (accused) have been named because there is a bad blood between the families. Accused examined three witnesses in their defence who are the three accused since discharged. The learned trial Court acquitted accused, Lohre, of offence under Sec. 302 IPC, but convicted him of offence under Sec. 302 read with Sec. 34 Penal Code and also convicted accused, Jagman, of offence under Sec. 302 IPC, simplicitor and sentenced them as indicated above. Challenging their conviction and sentences, these appeals have been preferred.