BANTA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed against the judgement of the learned Sessions Judge, Sriganganagar dated January 28, 1988 by which he has convicted the accused-appellants under Section 302 read with section 34, I. P. C. The accused-appellant No. 2 Amarjeet Singh has also been convicted under Section 324, I. P. C. Sentences of life imprisonment and two months' rigorous imprisonment have been awarded for the said first and second offences respectively.

(2.) THE facts of the case giving rise to this appeal may be summarised thus. On July 23, 1976 at 6 AM. , the informant Jaswant Singh P. W.-l lodged an oral report in the Police Station, Sadulshahar (Sriganganagar) that in the village Harsinghpura (7 miles from the police station, Sadulshahar) his house and the house of his brother Jarnail Singh P. W.-3 are situated in the old Abadi and the newly constructed house of his son Mandar Singh (deceased) in the new Abadi. At about 12 O'clock in the night (intervening 22nd and 23. 07. 1976), he heard the cries of Manjeet Kaur P. W.-2, wife of his son Mandar Singh, that her husband had been killed. On hearing it, he, his brother Jarnail Singh P. W. 3 and his son Tej Singh ran towards the house of Mandar Singh. THEy saw Banta Singh and Amarjeet Singh (accused-appellants and Kikar Singh of their village coming out of the house of Mandar Singh and running towards the north. Banta Singh and Amarjeet Singh were having Gandasas and Kikar Singh a sword, in their hands. Before their arrival, Baisakh Singh had already arrived there. Manjeet Kaur P. W.-2 was found weeping and crying and Mandar Singh was found dead with serious injuries on his body. Manjeet Kaur P. W.-2 told them that the accused-appellants and Kikar Singh had attacked Mandar Singh with Gandasas and sword. Litigation is going on with Kikar Singh and others. He has come to the Police Station after leaving Baisakh Singh and Tej Singh at the place of occurrence. F. I. R. Ex.-P/1 was drawn and a case under section 302, I. P. C. was registered. After completing the investigation, a challan was filed against the accused-appellants and Kikar Singh. As none of the accused could be apprehended, proceedings under Section 299, Cr. P. C. were taken against them. In execution of the standing warrants issued against them, the accused-appellants were arrested on January 16, 1986. THEreafter, fresh challan was filed against them showing the co-accused Kikar Singh as an absconder. Charges under Section 302 read with section 34 and 302, I. P. C. were framed against both of them. Charge under Section 324, I. P. C. was also framed against the accused Amarjeet Singh. THE prosecution examined informant Jaswant Singh P. W. 1, widow Manjeet Kaur P. W.-2 and uncle Jarnail Singh P. W.-3 as eye-witnesses, Dr. Ramesh Kumar Baweja P. W.-4 who conducted the post-mortem examination on the dead body of the deceased Mandar Singh and examined the injured Manjeet Kaur P. W.- 2, the attesting witnesses Jaskaran Singh P. W.-6, Sub-Inspector Tara Chand P. W-7 who arrested the accused-appellants and filed challan against them and the investigating officer Vichitra Kumar P. W. 8 and tendered and proved 23 documents.

(3.) MANJEET Kaur P. W.-2 has deposed that she, her husband Mandar Singh and children were sleeping on different cots in the Chowk of their house, at mid night on hearing commotion she got up and saw the accused Kikar Singh with Kripan and Banta Singh and Amarjeet Singh with Gandasas, they were inflicting injuries on her husband Mandar Singh, when she tried to save her husband the accused Amarjeet Singh caused an injury on her right hand with a Gandasa and struck a lathi blow on her right thigh, she fell down, on her hue and cry Baisakh Singh came with a lighted torch, thereafter, her father-in-law Jaswant Singh P. W.-l, mother-in-law Jangir Kaur, uncle-in-law Jarnail Singh P. W.-3 and Tej Singh came and the accused persons ran away. She has also said that a quarrel took place in between her husband and the said accused persons about 2-3 months before the said occurrence. Jaswant Singh P. W.-l has deposed that on hearing the hue and cry of MANJEET Kaur P. W.-2, he ran towards the house of Mandar Singh alongwith his brother Jarnail Singh P. W.-3, his son Tej Singh and wife Jangir Kaur, there he saw Baisakh Singh standing with a lighted torch and saw the accused persons running away. Jarnail Singh P. W.-3, brother of Jaswant Singh P. W.-l, has deposed that in the mid-night his brother Jaswant Singh asked him to get up stating that his son Mandar Singh had been killed, he alongwith Jaswant Singh, Jangir Kaur and Tej Singh ran towards the house of Mandar Singh, there he saw Baisakh Singh running towards the house of Mandar Singh with a lighted torch in his hand and the accused persons coming out from the house of Mandar Singh. None of, these witnesses has said that they saw the assailants in the light of the torch which Baisakh Singh was carrying. Admittedly, Baisakh Singh has not been examined. On 23. 9. 1986, Jaswant Singh P. W.-l moved an application that Baisakh Singh has aided with the co-accused Kikar Singh and as such he was left. The site-inspection memo Ex.-P/4. A shows the place by letter 'c' where Baisakh Singh was standing with a lighted torch. Admittedly, this fact was not noted by the Investigating Officer himself who prepared the site- plan Ex. P/4 and the site-inspection memo Ex.-P/4. A at the site. This fact was noted in these documents at the instance of the attesting witnesses. This is hit under Section 161, Cr. P. C. and cannot be read in evidence. Reference of Tohari Singh vs. State of U. P. (7) and Jeet Singh vs. State of Punjab (8), may be made here.