GANPAT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 16-8-93, passed by the Additional Sessions Judge No. 1, Udaipur, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellants for the offences under Ss. 102 / 34 and 307 / 34, I.P.C.

(2.) Accused-appellant Ganpat Singh, Nakul Singh and Tejraj Singh were tried by the learned Additional Sessions Judge No. 1, Udaipur, for the offences u/ Ss. 302, 302/34, 307 and 307/34, I.P.C. Accused-appellant Ganpat Singh and Nakul Singh were, also, tried for the offence under S. 4/25 of the Indian Arms Act.

(3.) The prosecution case, as unfolded as the First Information Report Ex. P.25, registered at Police Station, Hiran Magri, Udaipur, at 7.30 p.m. on 15-12-90, on the statement Ex. P.1 made by P.W. 1 Girdhar Gopal, who was lying on Bed No. 9 in the Hospital by the Station House Officer, Police Station, Hiran Magri, Udaipur, contains the fact that the complainant-injured Girdhar Gopal and his brother Satya Prakash are running a betel shop in a wooden cabin installed in Sector No. 4 of the Hiran Magri locality. On the relevant day he was sitting in his cabin at about 7.00 p.m. and his brother Satya Prakash was standing near the cabin. The three accused came to the shop from the side of the temple. They demanded Rajnigandha Pan Masala, Tulsi Tobacco and Gutkha, which were given to them by him. One person out of the three thereafter asked Satya Prakash - the elder brother of the informant Girdhar Gopal - that he was doing Dadagiri in Sewashram area and asked him whether he was the Dada of that area; whereupon Satya Prakash replied that he had come to Udaipur only three months before and previously he was residing in Nimbaheda and he has not done any wrong with anybody. In the meanwhile, one of the accused persons, who was wearing Blezzer having a monogram thereon, gave two-three slaps to Satya Prakash. The other two accused persons, also, started beating Satya Prakash. The informant asked them why there were giving beating to his brother, whereupon the person, who was wearing the blezzer, caught-hold of Girdhar Gopal and pulled him out of the cabin. The other two persons caught-hold of his brother Satya Prakash and the person, who was wearing blezzer (accused Nakul Singh) inflicted injury with a knife in the abdomen of Satya Prakash and the other two accused, also, continued catching-hold of his brother. After receiving the injuries, Satya Prakash fell down. The informant raised alarm to save them and at that time, the person, who was wearing the blezzer, inflicted injury with the knife on his shoulder and broke the gas-lamp lying in the cabin. In the meanwhile, a three-wheeler (tempo), having the shape of a tonga, came there and all the three persons ran away in that three-wheeler towards the side of Satellite Hospital, Udaipur. After registration of the First Information Report, the police started investigation. P.W. 21 Bhanwar Singh, Station House Officer, Police Station, Hiran Magri, Udaipur, went to the place of the occurrence, prepared the Panchnama-Nash Ex. P.10, site plan and site inspection note Ex.P.11, recovered the blood-smeared soil, control-soil and the shoes of the deceased vide Ex.P.12, the blood-smeared clothes of Girdhar Gopal vide Ex. P.13 requested the Medical Jurist to conduct the autopsy on the deadbody of Satya Prakash, handed over the deadbody of Satya Prakash to his elder brother Pradeep Bhatnagar vide Ex.P.15, made further investigation, recovered two iron rods of tempo which were smeared with the blood vide Ex. P.16, recovered the agreement Ex- P.17 from one Anwar Hussain the owner of the tempo, got the injury report of the injuries of Girdhar Gopal Ex. P.21, the post-mortem report Ex. P.22, recorded the statement of some witnesses and conducted the investigation up to 4-2-91, when the investigation was transferred to the C.I.D. The investigation was thereafter entrusted to Shri Bhagwati Prasad the Additional Superintendent on 25-2-91, who completed the investigation and presented the challan. The prosecution examined twenty-four witnesses and exhibited thirty-four documents. The nature of the evidence, produced by the prosecution, consists of the statements of five eye-witnesses viz., P.W. 1 Girdhar Gopal the injured witness-, P.W. 3 Ajeet Singh, P.W. 4 Mannu Sindhi, P.W. 5 Gautam Lal and P.W. 6 Narain Singh Except P.W. 1 Girdhar Gopal, the remaining four witnesses are the shop-keepers running shops in the adjoining area where the incident took place, but these witnesses have not supported the prosecution case and have turned hostile. Therefore, the prosecution case rests mainly on the testimony of only one eye-witnesses, viz., P.W. 1 Girdhar Gopal, who, also, received injuries during the incident and at whose instance the F.I.R. was registered. This evidence of the eye-witness P.W. 1 Girdhar Gopal is sought to be corroborated by the statement of P.W. 7 Vishal, the brother-in-law of the deceased and P.W.12 Rajendra Prasad Sharma, who came at the scene of the incident just after the incident and took Girdhar Gopal and Satya Prakash to the Satellite Hospital where the First Aid was provided to Girdhar Gopal and both the injured were thereafter referred to the General Hospital, Udaipur, where Satya Prakash succumbed to the injuries while P.W. 1 Girdhar Gopal was admitted in the hospital and remained there as an indoor-patient for about a week. P.W. 8 Manoj, also, came at the scene of the occurrence when Girdhar Gopal was raising the alarm but this witness has, also, not supported the prosecution case and has turned hostile. P.W. 9 Pradeep Bhatnagar is the brother of the injured informant as well as the deceased, who was informed that Girdhar Gopal and Satya Prakash received injuries and they have been admitted in the hospital and he went to the hospital and found Girdhar Gopal in an injured condition while Satya Prakash had succumbed to the injuries. After the postmortem examination, the deadbody of Satya Prakash was handed over to this witness vide Ex. P.15. P.W. 10 Mohan Lal is the driver of the three-wheeler (tempo), P.W. 2 Dharnidhar was the passenger in the tempo, which came at the place of the occurrence and according to the prosecution case the accused fled away by boarding that tempo. P.W. 11 Anwar Hussain is the owner of this tempo. P.W. 12 Rajendra Prasad, P.W. 13 Mahipal, P.W. 14 Nagendra, P.W. 15 Kedar Lal, P.W.18 Bhagwat Singh, P.W.19 Chhagan Lal, P.W. 20 Hem Raj and P.W. 21 Bhanwar Singh are the Motbir witnesses about the recoveries as well as the other memos prepared by the police. Their evidence is not of much importance because the recoveries have not been believed by the learned Additional Sessions Judge as the clothes recovered at the instance of the accused vide recovery memos Ex. P.18, Ex. P.19 and Ex. P. 20 or the knife recovered from accused-appellant Ganpat Singh were neither found smeared with human blood nor were they got identified from these witnesses. P.W.16 is Dr. G. N. Dad, who examined the injuries found on the person of P.W. 1 Girdhar Gopal and, also, conducted the post-mortem on the deadbody of deceased Satya Prakash. P.W. 11 Shri Girish Kumar Pandey is the Munsiff and Judicial Magistrate, Udaipur (North), Udaipur, who conducted the test identification parade of accused Tejraj Singh, Ganpat Singh and Nakul Singh on 10-4-91 at about 3.00 p.m. in the Central Jail, Udaipur, and prepared the identification memos Ex. P.2, Ex. P.3 and Ex. P. 4, respectively, P.W. 1 Girdhar Gopal correctly identified all the three accused while P.W. 5 Gautam Lal Patwa, P.W. 2 Dharnidhar and P.W.10 Mohan Lal did not identify these accused. He has, also, stated that he took all the necessary precautions at the time of conducting the identification parade and mixed the under-trials of the same physique and health as that of the accused-appellants. P.W.22 Basant Singh is the Literate Constable of Police, who took the samples for F.S.L. Examination to the State Forensic Science Laboratory, Jaipur. The prosecution has, also, placed reliance over thirty-four documents. The accused were, also, examined under S. 313, Cr. P.C. but they did not examine any witness in support of their defence. The learned Additional Sessions Judge, after trial, acquitted all the accused-appellants of the offence under Ss. 307 and 307/ 34, I.P.C. and S. 4/ 25 of the Indian Arms Act, but convicted them for the offences under S. 324/34, I.P.C. for inflicting injuries on the person of Girdhar Gopal. The learned Additional Sessions Judge, also, convicted the accused-appellants for the offence under S. 302/34, I.P.C. for causing the murder of Satya Prakash and sentenced each of them to undergo imprisonment for life and a fine of Rs. 1000/ - each and in default of payment of fine further to undergo two months rigorous imprisonment for the offence under S. 302/34, I.P.C. and a fine of Rs. 500/ - and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence u/S. 324/34, I.P.C. and both the sentences were directed to run concurrently. Aggrieved with the judgment dated 16-8-93, passed by the learned Additional Sessions Judge No. 1, Udaipur, the accused-appellants have preferred the present appeal.