MALSINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE learned Sessions Judge. Sri Ganganagar by his judgment dated March 12. 1976 convicted the appellants Malsingh and Bharatsingh of the offence under Section 302, IPC and sentenced them to imprisonment for life. He, however, acquitted the accused appellants of the charges under Sections 302/34 and 201, IPC.

(2.) THE prosecution case, in brief, is that the deceased Surjeetsingh (30) with his wife Smt. Pal Kaur (P W, 4) was living separately from his father Gittan Singh (P. W. 1 ). Gittatnsingh (P. W. 1) was living with his wife Smt Balbirkaur (P. W. 5) and his three sons; namely, Darshansingh, Tejsingh and Baldevsingh. The house of surjeetsingh was at a distance of about 20-25' ft. from the house of Gittansingh facing each other. The accused-appellants Malsingh and Bharatsingh were living in the same village 11 NP. . for the last about 4 years. The land of the accused Bharat Singh and the deceased Surjeetsingh was situated in the same Murbba in 11 NP adjoining to each other and the land of the accused Malsingh was situated in the adjoining murbba. The turn of water of Surjeetsingh was at 12. 23 in the noon and was for a period of 3i hours and he used to take his turn of the water from one Najarsingh. Najarsingh had taken the land from the refugees on share basis. The accused appellants got the land in exchange from one Mukhtiyarsingh and as per the prosecution case, Malsingh also got his house in exchange, Mukhtiyar Singh's father Jaisingh was also living in 11 NP 7-8 years prior to the occurrence. Gittansingh (P. W. 1) Surjeetsingh and Makhansingh, the nephew of Gittan Singh were prosecuted for the murder of Jaisingh, to which case all the three were acquitted. After the murder of Jaisingh, his son Mukhtiyarsingh and Mithu left the village 11 NP and went to village 58 NP. About a week prior to the occurrence, it is said that the water course of the accused Bharatsingh was broken by Surjeetsingh. which annoyed him and by the intervention of the Panchayat the matter was settled. It is further alleged that on 17-7-1974. the accused Malsingh came to the house of Surjeetsingh with a gun and called Surjeetsingh. but' his wife Smt Palkaur (P. W. 41 did not allow him to go out in the night. On 18-71974, the turn of taking water of Surjeetsingh was to begin at 12. 23. At about 12 in the noon. Surjeetsingh came with one camel and a buffalo to his house and the accused Malsingh was also with him. P. W. 1 Gittansingh was sitting outside the house and Smt. Palkaur YP. W. 4) wife of Surj,eetsingh was also sitting in the entrance of her house. Surjeetsingh asked Smt. Palkaur to prepare tea as there was little time left for the turn of his water. Thereupon, it is said that the accused Malsingh told that the tea is ready at his house, Thereafter Surjeetsingh went with Malsingh and he also took his transistor with him. When Surjeetsingh did not reach the field for taking water from Najarsingh, Najdrsingh came at about 12. 30 or 12. 45 P. m. and told Gittansingh that Surjeetsingh had not reached the field. On this. P. W. 1 Gittansingh requested Najarsingh to divert the water course into the field of Surjeetsingh and Gittansingh went in search of Surjeetsingh. He went to the house of the accused Malsingh. He found the house closed. Then he went to the adjoining house of the accused Bharatsingh. The entrance of the house of Bharat Singh was found open and there was none inside the house. He went inside the house and called Surjeetsingh, but none responded. But he saw a cot lying in a standing position near the intervening wall of the house of the accused persons, He also called after climbing on the cot. but nobody responded from the house of Malsingh. He found one cot in the same situation in the house of Malsingh as well. When he was returning to his house, P. W. 2 Chanansingh met him in the way and told him as to where he is moving about and divulged that the accused persons were seen by him running and then, he called them and asked them as to why they were running. Thereupon, they stopped Bharatsingh blurted out that they have murdered Surjeetsingh. Both of them beseeched him to save them. Thereupon. Gittansingh started crying, which attracted the people from the neighbourhood. Thereafter they went to the house of Malsingh. They observed that blood was coming out from the 'kotha' in which fodder was stored in the house of Malsingh. Then, they went inside the Kotha and saw the dead body of Surjeet Singh lying in a pool of blood with sharp-edged weapon injuries on his person. P. W. 1 Gittansingh left for the police station, Rai singhnagar on foot, which was situated at about 6 miles and lodged the report Ex. P/l at 3. 30 P. m. P. W. 8 Rak-shpalsingh. ASI registared the case under Section 302, IPC. Thereafter, he visited the spot and prepared the Furd Surat Mal Lash (Ex. P/l) and Pan-chayatnama (Inquest report) Ex. P/4 site-plan (Ex. P/5) and site-note (Ex. P/5a ). Thereafter, he handed over the investigation to the Station House Officer Shri premnath (P. W. 9 ). The S. H. O. Premnath seized the transistor (Article 1) of the deceased from the residential Kotha of Malsingh vide memo Ex. P/8. The licence of the Transistor (Article 2) was produced by P. W. 1 Gittansingh, which was seized vide memo Ex. p/10. An autopsy on the dead body was conducted at 5. 15 P. m. by P. W. 6 Dr. Pri-thviraj. The blod-stained kachha of the deceased (Article 5) was also seized vide memo Ex, P/9. The accused persons ware arrested on July 20. 1974 vide arrest memos Exs, p/ll and P/12. Both the accused persons gave information with regard to the weapons on 25-7-1974. The accused Malsingh gave information in respect of the bloodstained Salang to be lying concealed in the fodder of the kotha towards the southern side, the memo whereof is Ex, P/13 and the accused Bharatsingh gave information in respect of the blood stained Gandasi which is lying in the fodder kotha of the house of Malsingh concealed under the Ganwar Foddar, The information memo is Ex. P/14. Both the accused persons, in pursuance of their information and at their instance, got the weapons recovered, the recovery memo of Salang (Article 41 is Ex. P/15 and recovery memo of Gandasi, (Article 3) is Ex, P/l6. Both the weapons were found smeared with blood and both the weapons were separately packed and sealed. At the time of effecting recoveries, they entered into the fodder kotha through the residential kotha, the lock whereof was opened b the mother of the accused. The lock (Article 6) was seized vide memo Ex. P/17. The sealed packets of the weapons were sent for chemical Examination. They were found stained with blood by the Chemical Examiner vide his report Ex. P/18 and Serological report reveals that both the weapons were stained with human blood. Investigation was conducted from the witnesses and after completion of the investigation, charge-sheet was put up against the accused persons. The accused persons were committed for trial. They were charged of the offences under Sections 302. 302/34 and 201. IPC, They pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution examined P. W. 1 Gittan-singh. P. W. 2 Chanansingh (aged 60 years) r/o 40 PS. P. W. 3 Kripal Singh P. W. 4 Smt. Pal Kaur. p. w. 5 Smt, Balbir Kaur, p. W. 6 Dr. Prithvi Raj, P. W. 7 Harisingh Constable (who carried the sealed packets to the Forensic Science Laboratory. Jaipur), p. w. 8 Rakshpalsingh, ASI and P. W. 9 Prem-nath S. H. O. The statements of the accused persons were recorded, in which they denied the prosecution case and stated that they had gone on pilgrimage to Booddhajod along with their wives leaving behind their mother and child-; ren. They further stated that D. W. 1 Mukhtiyarsingh s/o Jaisingh had come on the previous night. The house belonged to him and the possession of the house was not delivered to Maisingh. Both of them were living in the house of the accused Bharatsingh. They used to make use of the kotha of Mukkh-tiyarsingh in need. When they returned from Booddhajod, they came to know that the charge of murder has been levelled against them. Thereafter, on the second day, they surrendered themselves at the police station. When they left the house for taking bath at Bud-dhajod in the morning on the day of Amavas on 19-7-1974, they left Mukhtiyarsingh at the house. The accused persons examined Mukhtiyarsingh in defence as D. W. 1. The learned Sessions Judge after hearing the arguments, convicted both the accused persons of the offence under Section 302, IPC and acquitted them of the offence under Sections 302/24, and 201, I. P. C. Aggrieved by their convictions, the present appeal has been preferred.

(3.) WE have heard Mr. K. C. Gour assisted by, Mr. Niranjan Gour, learned Counsel for the accused-appellants and Mr. M. C. Bhati, learned Public Prosecutor for the State.