JALLI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Criminal Appeal has been filed against the judgement dated April 27,1979, passed by the learned Additional Sessions Judge, Alwar (Court No. 2), in Sessions Case No. 8/78, by which accused-appellants have been convicted under section 302 read with section 34 and section 323, IPC and sentenced to life imprisonment and a fine of Rs. 500/ -. On failure to deposit the amount of fine, they are liable to undergo three months further RI. Briefly stated, the story of prosecution is that on October 4, 1978, at about 5/5. 30 p. m. , deceased Shitab, alongwith Chitru (P. W. 2), went in bus from Kishangarh to Bhindusi. From there, the deceased, along with Chitru (P. W. 2) and Majhla (P. W. 3), proceeded towards Banjal Hera. When they reached on the way, near Nao Gaon, accused-appellants Jalli and Aasu attacked the deceased with lathies. Jalli, with a view to kill the deceased, caused grievous and simple injuries to the deceased, on account of which, Shitab died on the spot. Chitru (P. W. 2) when tried to save the deceased, both the appellants gave beating to him also with lathies. Mala Singh (P. W. ll) had also travelled by the same bus, in which deceased had travelled. He also got down at the same place from the bus and was going little ahead of the deceased. Mala Singh (P. W. ll), on hearing noise, came on the spot and gave information of the incident to Subekhan, brother of the deceased. On hearing this information, Subekhan took a tractor from Bagu (P. W. 12) and went to the spot, where he found Meghraj, Ratti Ram and Kishora, who were looking after Shitab. Shitab was put into tractor and they started for taking him to hospital at Tijara, but he died on the way itself. An FIR was lodged on the same day, at 9. 30 p. m. , by Subekhan, brother of the deceased.

(2.) IT is submitted by Mr. R. K. Mathur, learned counsel, that eye-witnesses Tej Bhan (P. W. 4), Anand Prakash @ Dr. Nand (P. W. 7), Mamman (P. W. 8), Sohan Lal (P. W. 9) and Nebh Raj (P. W. 10) were declared hostile. The trial court has placed reliance on the testimony of Mala Singh (P. W. ll), Subekhan (P. W. I), who is brother of the deceased, Bhagu (P. W. 12), Dr. Suresh Kumar Sharma (P. W. 13) and Chaturbhujpal (P. W. 14) Investigating Officer. From the statements of the witnesses, who have been declared hostile, it can be said that Chitru (P. W. 2) and Majhla (P. W. 3) were not present at the time of occurrence and could not see real assailants, on account of darkness and distance. IT is further submitted that Chitru (P. W. 2) and Majhla (P. W. 3), who are said to be eye-witnesses, admittedly, did not know the accused- appellant earlier than the time of occurrence. These witnesses have, for the first time, identified the appellants in Court, but no test identification parade was held, for this purpose. Therefore, their testimony, regarding presence of appellants, at the time of occurrence, cannot be relied upon. IT is also submitted that Jahaj (D. W. I) was cited as an eye-witness in the list of prosecution witness, but was not examined, admittedly, because he was not prepared to the line of the prosecution. He has been examined as DW 1 and has stated that Chitru (P. W. 2) and Majhla (P. W. 3) were not present at the time of occurrence. Mr. Sharma, learned Public Prosecutor, has emphasised that Chitru (P. W. 2) is an injured witness and his testimony is completely reliable. IT is also contended that it was not necessary to hold test identification parade as the names of the accused-appellants were mentioned by those, who were present at the time of incident. Therefore, Chitru (P. W. 2) and Majhla (P. W. 3) came to know the names of these appellants at that very time.