AIDAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals under S. 374, Cr. P. C. are directed against the judgment of the learned Sessions Judge, Bikaner passed on 8-8-1984 whereby he has convicted the accused appellants Parma Ram aid Gomada alias Uma Ram under Section 302, or in the alternative Section 302 read with Section 34, IPC and sentenced each of them to imprisonment for life. The learned Sessions Judge has convicted the appellant Aidan aid Mangida alias Mangilal under Section 325 or in the alternative under Section 325 read with Section 34, IPC and sentenced each of them to three years R.I. with a fine of Rs. 2500.00 and in default of payment of fine to undergo further 11/2 years R. I. Since, both these appeals are directed against a common order, they are being disposed of by this judgment.

(2.) Briefly stated the facts of the prosecution case are that while mother of accused appellant Aidan bringing her Rewad towards the field of Ram Kumar Singh at about 5.30/6 a.m. on 11-10-1982, it is alleged that she was asked by Ram Kumar Singh to take out the Rewad from his field whereupon accused appellants Parmanand armed with Gandasi, Gomda armed with Kulhari and rest of accused appellants armed with lathis came there and gave a 'Lalkar' to Ram Kumar Singh. It is further alleged that all the accused appellants started assaulting Ram Kumar Singh. On hearing hue and cry, 'Mare Re' 'Mare Re' Smt. Damyanti wife of Ram Kumar Singh rushed to the place of incident from her 'Dhani', and saw that all the five accused appellants are beating her husband. It is also alleged that Nanu Singh and Kishan Singh, brother of Ram Kumar Singh reached the place of incident but Nanu Singh beaten by Aidan, Mangilal and Jagla by lathies thereupon Smt. Damyanti and her brother-in-law (Jeth) Nanu Singh raised hue and cry due to which accused persons fled away. Ram Kumar died on the spot, and his brother Nanu Singh also became unconscious. Smt Damyanti wife of the deceased came to Bhanipura and from there she reached Bikaner by Bus and therefrom she took her brother Ranjit Singh but at the bus stand she came to know that Thanedar of Pugal Police Station is at S.O. Office, Bikaner. She was taken there and Thanedar of Pugal Police Station recorded her statement vide Ex. P. 15. Her statement was sent to P. S. Pugal with P. W. 11 Vijay Prakash at 9 p.m. on 11-10-1982, thereupon an FIR Ex. P. 23 was registered. The Police prepared Ex. P. 1 description memo of corpus (Furd Surat Hal Nas) Ex. P. 2 inquest report. Ex. P. 3 site inspection memo, Ex. P. 24 description of site inspection memo. At the instance of Parma Ram and on his information vide Ex P. 28 'Gandasi' was recovered vide Ex. P.4. On the information vide Ex. P.26 of lathi was recovered at the instance of accused-appellant Mangilal vide Ex. P. 5. At the instance of accused Uma Ram one 'Kulhari' was recovered vide Ex. P. 6. A lathi was recovered at the instance of accused-appellant Aidan vide Ex. P.7. The police seized blood stained soil and controlled soil vide Ex. P. 5. The accused appellants Aidan, Parma Ram, Uma Ram, Jagla and Mangilal were arrested on 14-10-82 vide Ex. P. 17 and Ex. P. 20 and dead body of the deceased Ram Kumar Singh was sent for post-mortem. The post-mortem report is marked as Ex. P. 17. Mr. Nanu Singh was medically examined vide Ex. P. 13, X-Ray plates of Nanu Singh are marked as Ex. P. 15. The blood stained clothes and other articles were sent for chemical examination to the F.S.L. Jaipur. The police after due investigation filed challen in the court of Judicial Magistrate No. 1, Bikaner and the case was thereafter committed to the court of learned Sessions Judge, Bikaner for trial and Jagla being a minor was committed to Juvenile Court. Charges were framed against the accused persons. The accused appellants denied the charges and claimed trial. In their statements under Section 313 Cr. P.C. the accused appellants Aidan, Umaram and Parmaram stated that Nanu Singh, Kishan Singh, Damyanti and Ranjit Singh are relatives. The accused appellants further stated that they have been falsely implicated The accused Mangilal has raised a plea of alibi and stated that he is innocent as on the point of time and day he was at his village Surpura. The prosecution in support of its case produced 13 witnesses viz. P.W. 1 Nanu Singh, P.W. 2 Kishan Singh, P.W. 3 Ranjit Singh P. W. 4 Dr. Shyam Sundar. P.W. 5 Dr. Om Prakash, P.W. 6 Dr. R. K. Gehlot, P.W. 7 Damyanit, P.W. 8 Bhanwarlal P.W. 9 Sohanlal, P.W. 10 Anter Singh P.W. 11 Vijay Prakash, P.W. 12 Bhoop Ram and P.W. 13 Gyan Prakash. In defence two witnesses viz. D.W. 1 Kana Ram and DW 2 Laximnarayan were examined. The learned Session Judge after considering material on record after conclusion of the trial convicted and sentenced the accused-appellants as aforesaid. Dissatisfied with the conviction and sentences passed on them, the accused appellants have preferred this appeal. The State has also filed an appeal against the judgment bearing D. B. Cr. Appeal No. 204/85 for convicting all the accused appellants under Section 302 and 302/34 IPC with the aid of S. 149 IPC. Both the appeals have come up before us.

(3.) Mr. Singhvi, learned counsel for the accused appellants has submitted that the learned trial court has erred in placing reliance on the statement of eye-witnesses as there is infirmity in their statement. He has also submitted that there was no previous enmity. He has further submitted that Kishan Singh and Damyanti were not present at the scene of occurrence and the learned trial court has rightly not placed reliance on their statement, but even then without examining any independent witness it has erred in convicting the accused appellants on the basis of statement of Nenu Singh. He has further submitted that the investigation was not prompt and the FIR was a post investigation. He has relied on Ashok v. State, 1991 (1) RLW 522, Ramji Surjya v. State of Maharashtra, AIR 1983 SC 810, Hakumat Rai v. State, (Cr LR (Raj) 718 (sic), Ganesh Bhavan Patel v. State of Maharashta, AIR 1979 SC 135.