HUSSAIN KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Hussain Khan has been convicted under Section 302 I. P. C. and sentenced to imprisonment for life by the Sessions Judge, Bikaner, by his judgment dated 11th September, 1971, and hence he has filed this appeal.

(2.) THE prosecution case is that the accused Hussain Khan divorced his first wife who renamed the brother of the deceased Gamu. The accused took a second wife but fhs wed to live with Hazi Fallu, father of the accused and the accused suspected that the deceased Gam a was instrumental in Keeping his wife away from him. This is said to be motive of the crime. It is alleged tha' m 17th January, 197. 1. the accused went to the hut of Hakeem situated in Chak 6 B. D. and asked PW/8 Baldeo Singh who was then in- occupation of Hakeem's hut, to bring Gamu who was living in the same locality. Baldeosingh went to Gamu's house but since Gamu was not there, he could not bring him. Hussain Khan took his meals with Baldeosingh and stayed with him that night. Hussain Khan again asked Baldeosingh in the next morning i. e. on 18th January, 1971r to bring Gamu as he had some urgent work with him. Accordingly, Baldeosingh went to the house of Gamu and asked Gamu to come to Hakeem's hut. On having been told by Gamu that he would shortly come, Baldeosingh went away and Gamu followed him and reached Hakeem's hut at about 10 a. m. It is said that Gamu and Hussain Khan talked for about 15 to 20 minutes behind the hut, while Baldeo Singh was preparing food on the other side of the hut. Thereafter the accused and the deceased Gamu both went inside the hut and they were heard by Baldeosingh talking to each other. Suddenly Baldeosingh heard the report of a gun fire inside the hut. PW/6 Ramratan who was hi another hut nearby marked No. 11 in the site plan Ex. P/l also came out on hearing the report of the gun fire and both Baldeosingh and Ramratan saw the deceased Gamu coming out of the hut crying that he had been fatally wounded. Both the witnesses viz. PW/6 Ramratan and PW/8 Baldeosingh noticed an injury on the left side of the chest of Gamu who had pressed his hands on the wound. Gamu ran towards the hut of Hakim brother of Hakeem and Ramratan challenged the accused as to why he was killing Gamu. Hussain Khan chased Gamu and as soon as he came a step forward from the hut of Hakeem, Hussain Khan fired another gun-shot at Gamu which hit the deceased Gamu at his back. Gamu fell down dead near the hut of Hakim in which PW/5 Smt. Jannat and PW/3 Khanu were sitting at the relevant time. Having accomplished his object, Hussain Khan ran away from the place with the gun. PW/8 Baldeosingh, then, left for Bandli Post of Border Security Force and informed Haw-aldar Shailabsingh of the occurrence. Hawal-dar Shailabsingh reduced to writing the information given by Baldeosingh who also put his signatures below it. Tim Hawaldar then proceeded to tho spot along with Baldeosingh and a few constables. PW/4 Bhawanishanker Subedar, Post Bandli, who had gone out on pptroliing duty while returning to the post, mot constables Hanumanaram and Kanaram. who had accompanied Shailab Singh bawal-dar to the scene of occurrence. Both these constables informed Bhawanishanker that a man had been killed by gun-shot and the assailant had run away. On receiving this information, Bhawanishanker along with Hanu msnaram and Kanaram reached the place of occurrence where Baldeosingh informed him that Hussaiu Khan had run away after committing the murder of Gamu. On receiving this information Bhawanishanker sent out a party of constables to arrest Hussain khan. He also transmitted a message of this murder by wireless to the Collector, Bikaner, Superintendent of Police, Bikaner and to Station House Officer, Poogal. The Message was received by PW/16 Vichitra Kumar, S. H. O. Police Station Poogal on 18th January, 1971 at 4. 00 p. m. A copy of the same has been placed on the record and marked Ex. P/6. On its basis the FIR Ex. P/20 was drawn out and the investigation was taken up. On 19 January, 1971 Vichitrakumar, S. H. O. reached the place of occurrence and conducted the necessary investigation on the spot.

(3.) MEANWHILE the accused, after committing the crime, passed by the field of PW/7 Gurdeosingh at 11 a. m. in village Di (u-wali in which Chak 6 B. D. is also situate, and on enquiry by Gurdeosingh, told him that he had committed the murder of Gamu and, therefore, he may be taken to the police station, Poogal or to the B. S. F. Post, otherwise some harm may be done to him. Gurdeosingh snatched the gun from Hussain Khan and then took him to the Police Post Kundal where he handed over the accused and the gun to PW/10 Shaitansingh, Head Constable, Incharge B. S. F. Post Kindal. Shaitan Singh searched the person of the accused in presence of two motbirs and seized a 12-bore gun, two live cartridges and one empty as well as a licence of the gun in the name of Hussain Khan, along with other miscellaneous articles. The search memo Ex. P/9 was prepared by Naib Chandrasingh. He also recorded the statements of Gurdeosingh and the accused marked Ex. P/8 and Ex. P/10 respectively. On 19 January, 1971, at about 8 p. m. Shaitan Singh handed over the accused Hussain Khan as also the articles recovered from him and mentioned in Ex. P/9 to Head Constable, Police Station, Poogal Sohansingh PW. 15. Sohan Singh prepared the arrest memo of the accused marked P/12 and, in his turn, handed him over to the Investigating Officer, S. H. O. Vichitrakumar PW/16 the sam day. On 29 January, 1971 the accused informed the S, H. O. that the empty of the cartridge used for committing the crime was concealed by him in the field of one Allabasaya and he was prepared to get the same recovered. The S. H. O. reduced this information to writing, which is Ex. P/22 and recovered the empty at the pointing of the accused on 30 January, 1971 vide recovery memo Ex. P/7.