MANGALIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Mangalia was tried along with one Prabhu for offences under secs. 457, 380 and 392 I. P. C by the Sessions Judge, Jhunjhunu, who by his judgment dated 18 September, 1970 convicted the appellant and the accused Prabhu under sec. 457 I. P. C. and sentenced each of them to ten years rigorous imprisonment. THEy were also convicted under sec. 380 I. P. C. and sentenced to five years rigorous imprisonment each. But in addition to that, Mangalia was also tried and convicted under sec. 302 IPC. for causing the murder of Dulichand by a Pistol-shot and sentenced to imprisonment for life.

(2.) THE prosecution story, in brief, is that both the accused went to the house of Richhpal PW/1 in village Dhigal, Police Station Nawalgarh on the night between 21st and 22nd June, 1969 to commit theft. THE inmates of the house woke up and Nathu Singh PW/11 caught hold of one of the thieves namely, Prabhu. THE other thief namely, Mangalia dealt a blow with a lathi to Nathu Singh to rescue his companion, tut Nathu Singh did not release Prabhu. Mangalia, then, tried to run away through the main door of the house. But meanwhile, on account of the hue and cry raised in the house of Richhpal, Bhagirath PW/5, Kurdaram PW/7 and the deceased Duli Chand, who are brothers living nearby, woke up and proceeded towards Richhpal's house. Bhagirath had a torch with him. Dulichand was head of them. When they reached near Richhpal's house, they saw Manglia corning out. Dulichand caught hold of Mangalia by his neck and Bhagirath held him by his left hand. Kurdaram PW/7 caught his hair. Mangalia then challenged them to release him, lest he would kill them. He took a Pistol out of his pocket and fired a shot at Dulichand right in his chest. Dulichand fell dead. Mangalia ran away from the spot. But Prabhu, as already stated above, was captured by the inmates of Richhpal's house and was produced before the Police. A First Information Report of the occurrence was lodged by Richhpal at Police Station, Nawalgarh (situated at a distance of 16 miles from the place of occurrence) on 22nd June, 1969 at 9. 00 a m. while investigation of the case was in progress, the accused Mangalia was arrested some time in the last week of March, 1970, in connection with proceedings under secs. 55 and 109 Cr. P. C. on 27th March, 1970. THE Assistant Sub-Inspector Hari Kishan made an application to the Magistrate concerned for holding an identification parade in respect of the accused Mangalia. This request was granted and the identification parade was held on 7th April, 1970 by PW/9 Shri Vishnudayal, Munsiff Magistrate, First Class, Jhunjhunu. Mangalia was identified as the other thief who had fired a shot at Dulichand, by PW/5 Bhagirath, PW/7 Kurdaram and PW/11 Nathusingh. THE accused were put up for trial in due course. We are told that Prabhu filed a separate appeal through Jail and the same has been disposed of by the judgment of this Court dated 24 November, 1971 Prabhu vs. State. His appeal was allowed in part and the sentences awarded under both the counts were reduced to the period already undergone. We are therefore, concerned in this appeal with the case against Mangalia only.

(3.) AT this stage, we may also refer to the evidence of two more witnesses namely, PW/2 Gomaram and PVY/3 Phoolchand. PW/2 Gomaram has stated that village Dhigal is one mile away from his house. He goes on to state that on the day previous to the day of occurrence, he had seen both the accused together in the village and the appellant Mangalia was putting on turban Ex. /2, which was subsequently recovered from the house of Richhpal. Both the accused were standing near the shop of one Heeramram who deals in betel-leaves. Similarly PW/3 Phoolchand states that he had seen both the accused together in the village about ten or eleven days before the police had brought the accused Prabhu in the village in connection with investigation. The accused Prabhu told the witness that they were strangers to the place and were in need of money. Prabhu gave the witness a ring for sale and the witness arranged sale of the ring to Ramavtar Sharraf for a sum of Rs. 70/-, which were handed over to the accused Prabhu. It is true that Ramavtar has not been produced to corroborate the testimony of this witness. Yet nothing has been brought out in the cross-examination of this witness to show that he is a liar. Thus the evidence of these two witnesses shows that the accused were present in the village some time before the occurrence.