MAJI KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant Maji Khan and two others, Sher Singh s/o Inder Singh and Abdul Sattar s/o Samad Khan were presented on the charge under Section 302, I.P.C., in the alternative under Sections 302/34, I.P.C. The trial Court has acquitted the appellant on the charge under Section 302 read with Section 34, I.P.C. but convicted under Section 302 of the I.P.C. The other two accused persons were acquitted of both the charges under Section 302 of the I.P.C. as well as under Sections 302/34, I.P.C. The appellant has been sentenced to undergo life imprisonment with Two Hundred Rupees fine. This conviction and sentence is under challenge in this case.

(2.) The prosecution case, in short, was that the appellant in an intoxicated state came on the spot where Madan Gopal Pandey, Prabhu Modi, Dev Raj and Fagi Maharaj were sitting. He was accompanied by four other persons, out of them appellant came forward and extracted a pole from 'Patiya' and abusing Madan Gopal and others sitting there, threatened them. On this, they climbed over to the temple. Maji Khan followed them there and caught hold of Prabhuji and called Abdul to assault. Then others accompanying Maji Khan also went there. Prabhuji was not seen thereafter and therefore, a report was lodged by Madan Gopal about the incident. On investigation, it was found that Maji Khan was washing his blood-stained clothes on a tank and when he was seen by the police, he ran away towards a Nala opposing to temple. He was arrested and at his instance the dead body of Prabhu Modi was recovered from the Nala. After completion of investigation, the prosecution was launched which has resulted in the conviction of the appellant as above. The trial Court found the following circumstantial evidence against the appellant.

(3.) The learned counsel for the appellant submitted that the circumstantial evidence against the appellant cannot be said to be such which would exclude the possibility of his innocence. It was vehemently argued that it has not come on record that the appellant was seen last together with deceased alone. The entire evidence shows that all the accused persons had come on the spot together and moved together. As the co-accused have been acquitted of the charge under Sections 302/34, according to the learned counsel, the appellant could not have been held guilty and punished under Section 302, I.P.C. Decisions of the Supreme Court, reported in 1974 SCC (Cri) 362 : (1974 Cri LJ 664) AIR 1972 SC 110 : (1972 Cri LJ 23) and 1980 SCC (Cri) 155 : (1979 Cri LJ 1089), were pressed into service.