PAPALIYA @ OM PARKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The judgment will dispose of all the three above numbered criminal appeals as they arise out of the same judgment dated 26th Sept. 1991 of the learned Additional Sessions Judge, Beawar, District Ajmer. Under the aforesaid judgment, the learned Addl. Sessions Judge convicted the accused-appellant Papaliya @ Om Prakash. Rama Ram Niwas and Charnpa under section 302 Indian Penal Code and each of the accused appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000.00 and in default of payment of fine to further suffer six months rigorous imprisonment Along with accused appellants three other accused persons namely Prakash Chopra, Banti @ Kamal Kishore and Prem Chand were also tried under section 147, 148 and 302/149, Indian Penal Code, but they have been acquitted of the aforesaid charges.

(2.) The case relates to the death of one Mahendra Kumar, and the case of the prosecution is that on 28th April 1990 at 10:45 p.m. Papaliya @ Om Prakash accused appellant along with Champa came on a motor cycle and asked the deceased Mahendra Kumar to accompany them to 'Chopad' When Mahencra Kumar deceased refused to accompany them, both of them returned. Mahendra Kumar then told Budhhi Sagar. his brother PW 8 that he should go and call Sattu bhai. Budhdhi Sagar went to call Sattu, but he was not available on his house. When he returned he saw that Papaliya accused-appellant and others were taking his brother to 'Chopad'. He also went and saw that they were grappling with his brother Mahendra Kumar and when he (Budhdhi Sagar) made an attempt to intervene, he was pushed aside. Mahendra Kumar then asked him to go and call Sattu. He returned with Sattu in about 5-7 minute; and saw that the accused appellant Papaliya was giving blows to his brother with a knife. His brother was lying on the ground. The accused appellant Papaliya and his companions made their escape. A report of the incident was lodged by Budhdhi Sagar PW 8 in Police Station Beawar city where a case was registered at 11.45 p.m. post-mortem was conducted on the dead-body of Mahendra Kumar and the Doctor found that Mahendra Kumar had as many as five incised wounds and there were also contusions and abrasions The deceased died due to Synode as a result of shock on account of extensive and extreme bleeding due to stab wound caused over the abdomen cutting the spleen. The accused-persons were arrested and after investigation a charge-sheet was filed against them. After the close of the prosecution evidence, each of the accused person was examined under section 313 Code Criminal Procedure in order to explain the circumstances appearing against then and the accused appellants in their statements under section 313 Code Criminal Procedure stood on a bare plea of denial. The accused persons did not examine any witness in defence. The learned Sessions Judge as said earlier convicted the accused appellants namely Papaliya @ Om Prakash, Rama and Champa and acquitted the accused persons Prakash Chopra, Banti @ Kamal Kishore and Prem Chand as aforesaid.

(3.) Though the prosecution examined many eye witnesses including PW 17 Babulal, but the learned Trial court has disbelieved even Babulal and so far as other witnesses are concerned, they did not support the case of the prosecution and were declared hostile. At any rate, the case of the prosecution rested on the testimony of PW 8 Buddhi Sagar and PW 17 Babulal Even Satya Narain @ Sattu PW 3 on whom the deceased Mahendra Kumar had implicit faith and who is' said to be present at the time of occurrence, did not support the case of the prosecution. So far as PW 17 Babulal is concerned, the learned trill court (Additional Sessions Judge, Beawar) has held that he is not a credible witness and he has dealt with this witness in para 12 of his judgment. The learned trial court has said that he (Babulal PW 17) had not actually witnessed the occurrence. The reasons to hold so which have been assigned by the learned trial court are that his conduct was abnormal in as much as lie did not make attempt to save his friend Mahendra Kumar. He did not even inform the police about the incident. goes to the hospital, takes the dead-body of the deceased, but even then did not disclose about the incident to anybody and he was only examined after 2-3 days of the incident. There are no reasons to take a contrary view than taken by the learned Addl. Sessions Judge. Therefore, once Babulal PW 17 is held not to be the eye witness. the only evidence which remains on record is of Budhdhi Sagar @ Naina PW 8.