AHAMED ALI KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants Ahamed Ali Khan and Rahamat Ali have been convicted of the offence under Section 302/34, IPC and have been sentenced to imprisonment for life by the Additional Sessions Judge, Churu by his judgment dated December 23, 1974.

(2.) THE prosecution case in brief is that Sadulekhan PW 8 and Mukkarab Khan are the real brothers, the deceased Nathu Khan was the son of Sadulekhand, accused Ahmed Ali and Nizam Ali are the son of Mukarab Khan. There was some dispute between Mukarab Khan on the one side and Rahamat Ali and Ahamed Ali on the other side in connection with passage of water through the water course. In that connection permission was obtained by Mahaboob Khan and he had put up a Nali which was removed by the accused persons. In that matter deceased Nathu Khan had supported Mahaboob Khan and as such the relations between the deceased and Ahamed Ali and Rehmat Ali had become stained. It is alleged that on 8 -7 -1974 Ahamed Ali and Nathu Khan were at Churu, Ahmed Ali was serving in the PWD as mistry and Nathu Khan was a labourer. They used to come from Bissau on cycles. Balu Khan PW 2 is the brother -in -law of the deceased Nathu Khan and is residing at Churu. Balu khan had seen Nathu Khan as well as Ahamed Ali at about 5.15 p.m. of 8 -7 -1974 in the Bazar near Peepal -gate Rameshwar Dholi of Ramsara was also present at that place. He asked them not to quarrel with each other and thereafter Nathukhan had left the place and Ahmed Ali followed him for Bissau. The prosecution story further proceeds that Sampatram PW 1 who was a TB Patient had gone to Bissau from Churu which is at a distance of 9 miles. He had gone to Bissau in connection with getting himself examined by some Vaidya and on that date he was returning from Bissau. At about 5.45 p m. he reached Balarsar bus stand at a distance of two miles from Bissau and seven miles from Churu. He observed both the accused persons giving slaps, kicks and fist blows to Nathu Khan. Nathu Khan was known to him from before. He asked the accused persons not to beat Nathu Khan thereupon he himself was threatened. He then left the place and went to Churu and informed about the occurrence to Balu Khan and both of them went to the place of occurrence and saw Nathu Khan lying dead at the bus stand. The both of them returned to Churu. As Balu Khan was not a cyclist and on being asked by him Sampatram took him to the Police Station on his cycle and left him out side the Police Station. Balu Khan then went inside the Police Station and lodged the report Ex. P 2. On this report a case under Section 302, IPC was registered by Munshi Ram PW 3 who was Incharge of the Police Station Churu recorded the statement of Balu khan and on the next day Shivdan Singh undertook the investigation from him. Shivdan Singh PW 18 was the second officer. He visited the spot on 9 -7 -1974 and conducted the investigation and found the cycle of the deceased along with some bags and his chappals were also found at the spot. Autopsy was conducted on the dead body of the deceased by Dr. K.L. Gupta, PW 17. He found the following injuries on the person of Nathu Khan.

(3.) WE have given our anxious consideration to the above submissions of Mr. Calla and we have also perused the statement of Sampatram. What was weighed with us is that the whole story gets revealed through him. It is he who narrated the occurrence to Balu khan and the report came to be lodged in pursuance of the information given by Sampatram to Balu khan Regarding the credibility of the testimony of PW 1 Sampatram the Statement of PW 2 Balukhan is also to be looked into. If we disbelieve the testimony of Balukhan on this aspect of the case, then only it can be said that reliance cannot be placed on the testimony of Sampat Ram. Balu Khan in this First Information Report has come out with the story as stated by Sampat Ram This information finds place in the FIR, as to how Ballukhan came to know of the occurrence.lt finds mention in the FIR that Sampatram had come to his house and informed that he had seen accused Ahmed along with one unknown person inflicting blows on his brother in law Nathu Khan and the time of occurrence was also narrated by Sampatram to Ballu Khan which finds mention in the FIR. It also finds mention the FIR that both of them went back to the place of occurrence on the cycle of Sampatram and saw the dead body and both of them returned from there. Sampat Ram being the source of information to Ballu Khan and Ballu Khan's testimony on this score in our opinion can be disbelieved. That being so, it cannot be found that Sampatram had not visited Ballu Khan and was not returning back from Bissau at the relevant time. Nothing has come in the testimony of Sampatram of which it can be said that be bad any grudge against the accused persons or was in any way interested in the deceased. Ballu Khan is no doubt is a mistry in the PWD office Churu and Sampatram is also serving the same department can be no reason to come out against the accused persons. With regard to the testimony of to Sampatram it has also been pointed out that his testimony is such on the basis of which reliance should not be placed on his testimony. He was prosecuted by the Department under Section 379 IPC for having committed theft of the departmental property and besides that he was also prosecuted for committed murder of the husband of Parmeshwari whom he subsequently married. In that murder case he was acquitted and in the prosecution for the offence under Section 379 he was suspended. It was also pointed out that attendance of PW 1 Sampatram in the PWD register on the relevant date shows that there is over writing. Being under suspension there was no need for him to have attended the office. This criticism regarding his attendance in the office again has to be viewed in the light of what we have discussed that be is the source of information and on that basis his statement cannot be said to be a concocted one. Therefore, reliance can be placed on the testimony of Sampatram but his testimony is only believable to this extent that he saw both the accused persons giving blows in the nature of slaps, fists and kicks. His testimony does not go beyond that.