MUSTAQ ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgement dated 14.6.88, passed by the Sessions Judge, Udaipur, by which the learned Sessions Judge convicted the appellant for the offences under.Sections 302 and 397 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 1000.00and in default of payment of fine further to undergo six months' rigorous imprisonment for the offence under Sec. 302 Indian Penal Code and seven years' rigorous imprisonment for the offence under Sec. 397 IPC. Both the sentences were ordered to run concurrently.

(2.) Appellant Mustaq Ali was tried by the learned Sessions Judge, Doongarpur, for the offences under Sections 302 and 397 Indian Penal Code for committing the murder of Anil Kumar on 23/24th April, 1987, near Laxmi Paan Bhandar situated at Soniya Chowk, Doongarpur. The case of the prosecution is that Vikram Singh PW 4, the Driver of Police Jeep No. RJJ 1240 had gone to leave PW 14 Lalpuri Goswami- the Deputy Inspector of Police, from the Police Station to New Colony, Doongarpur. When he was returning from the New Colony and reached near Soniya Chowk, he saw Anil Kumar and accused Mustaq Ali, grappling together. Accused Mustaq Ali, after inflicting injuries to Anil Kumar by a knife, ran away. Anil Kumar fell down on the ground and blood was coming from his stomach and he was crying: "save .... save.." Two Motbir persons collected there.He with the help of these Motbir persons, put Anil Kumar in the jeep and brought him to the Government Hospital, Doongarpur. Anil Kumar informed them that accused Mustaq Ali had inflicted injury by his knife on his stomach and had taken away his wrist watch and Rs. 400.00. After leaving injured Anil Kumar in the hospital, Vikram Singh lodge the F.I.R at Police Station, Doongarpur. Anil Kumar was medically examined by PW 16 Dr. Balmukand, who, after examining his injuries and looking to his serious condition, recorded the dying declaration EX.P.W of deceased Anil Kumar. The Magistrate was, also, called and PW 9 Shri Shesha Ram Gander- the then Munsif and Judicial Magistrate, Doongarpur, thereafter came to the hospital and recorded the second dying declaration of Anil Kumar. Before the dying declaration EX.P. 9 and EX.P. 12 were recorded by the doctor and the Magistrate, respectively, Vikram Singh informed PW 5 Bhanwar Lal - the father of Anil Kumar- who, alongwith his brother PW 7 Natwar Lal, came to the hospital. At that time Anil Kumar was in senses but he was feeling severe pain. On enquiry being made, Anil Kumar informed his father and uncle that accused Mustaq Ali inflicted injury to him with a knife on his stomach and had taken away his wrist watch and Rs. 400.00Anil Kumar thereafter succumbed to the injuries. The prosecution, in support of its case,examined eighteen witnesses. The accused, in his defence, did not examine any witness. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above.

(3.) PW 1 Laxmi Lal is the owner of "Laxmi Paan Bhandar", in front of whose shop the incident took place. He was an eye witness to the occurrence. PW 2 Ramesh Pandya and PW 3 Suresh Kumar Pandya are the two persons who came at the scene of the occurrence immediately after the occurrence and saw the accused. But all these three witnesses have not supported the prosecution case and have been declared hostile. Therefore, there is no eye witness to the occurrence to prove the prosecution case and the prosecution case mainly rests upon the dying declarations made by Anil Kumar. The first set of dying declaration is the oral dying declaration made by Anil Kumar before PW4 Vikram Singh Driver, PW 5 Bhanwar Lal the father and PW 7 Natwar Lal -the uncle of the deceased. The second dying declaration was recorded by PW 16 Dr. Balmukand and the third dying declaration was recorded by PW 9 Shri Shesha Ram Gander - the then Munsif and Judicial Magistrate, Doongarpur. This evidence of dying declarations is further sought to be corroborated from the recovery of the blood-stained knife, containing 'B' Group of human blood which was the blood-group of the deceased, on the information and at the instance of the accused-appellant; as well as from the recoveries of the wrist watch and Rs. 400.00 on the information and at the instance of the accused-appellant.