SHIV SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SHIVSINGH and Tejsingh accused appellants have preferred this appeal against the judgment of the Sessions Judge, Jhalawar, dated 30th November, 1982, convicting them of the offence Under Section 302/34, IPC and sentencing each of them to impisonment for life and a fine of Rs. 50/ -and in default of payment of fine, to further undergo 1 month's R.I.

(2.) ONE Madan Singh lodged a report on 19th October, 1981, at about 10 -30 AM, at PS Gangadhar, wherein he stated that one Dungarsingh (deceased) was his real uncle, and that on 18th October, 81. Nainsingh who was also his uncle, came to him and informed him that Dungarsingh was lying dead on the 'Med' of the field. The neck and the feet of Dungarsingh were tied with a 'Safa' and he was full of blood. The shoes and the 'Darati' were lying near the dead body. At this, he (Madansingh) came to village Maksi along with Nainsingh, and from there, he took Harisingh, Chander -singh, Kanchansingh and Bhagwansing his father, and came to the field of Dungarsingh, and there he saw that Dungarsingh was lying dead. Harisingh asked him to report the matter to the police. But, as it was night he did not come to police station. He has further stated that in village Maksi. Harisingh told him that 7 -8 days before that date Manna had committed rape on the wife of Shivsingh and that a case had been lodged to this effect against Manna Bagri, and that, Manna Bagri had told Shivsingh that Dungarsingh also had committed rape on his wife. He has further stated that Harisingh also told him that Dungarsingh left the village and went to his father -in -law house in Village -Jamunia, and from there, he came to Sarwar with Harisingh and on Friday night, he returned to village Maksi, and that, on Sunday morning, he went his field to work and also to bring some grass. His wife requested him not to go to the field. But, he went away. Till the evening, Dungarsingh did not return. Then, a search was made, but to no effect He (Madansingh) has also alleged in the report that on account of enmity about the wife of Shivsingh, his uncle Dungarsingh, had been murdered by them. On this report, a case Under Sections 302, 147, 148 and 149, IPC was registered and the matter was investigated. After completing the investigation, the police submitted a challan against Shivsingh and Tejsingh. Both the accused were charged with the offence Under Section 302/34, IPC. After trial, the learned Sessions Judge found both the accused persons guilty of the offence Under Sections 302/34, IPC and sentenced each of them as mentioned above The accused persons pleaded not guilty and contested their trial. No defence evidence was produced on behalf of the accused persons.

(3.) THE learned counsel for the accused appellants has argued that there is no eye witness in this case, and that the entire case depends on the statement of Shankersingh PW9, who, according to the prosecution, was present at the spot when the accused persons inflicted injuries to Dungarsingh So, according to him, the entire case is based on the statement of Shanker Singh only. With regard to this witness, it was argued that he is a concocted and made out witness, and that, his name does not appear in the FIR. He also argued that had Shankersingh been present at the spot at the time when the incident occurred and had he gone with Dungarsingh to his field, as stated by Mst. Balakbai PW 8, wife of deceased Dungarsingh, his name ought to have been mentioned in the report, Ex. P 15. It was further argued that at the time of cremation, Shankersingh was present where the police constables were also present, but Shankersingh did not tell any body that he had seen the accused persons beating Dungarsingh. Shankersingh who is alleged to have been present at the spot at the time of beating and who ran away from the field, did not tell this fact to any body. He ought to have come to the village and informed Mst. Balakbai, wife of the deceased, Dungarsingh that her husband was being beaten by the accused appellants, ' Apart from this, he had also met Balwantsingh, father -in -law of Dungar Singh deceased. But, to him also, he did not tell that Dungarsingh was being beaten by Shivsingh and others. So, arguing on this point, the learned counsel for the accused appellants gave much stress that Shankersingh PW 9 is a false and made out witness, and no reliance should be placed on his testimony. According to him, the entire case depends on the deposition of this witness, and that, the learned Sessions Judge has erred in believing this witness and recording the conviction of the two accused appellants on the basis of the solitary statement of this, witness, Shankersingh PW 9.