MOHAMMAD ZAKIR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 11-8-86, passed by the Additional Sessions Judge, Bhilwara, by which the learned Additional Sessions Judge, convicted and sentenced the appellant for the offence under Section 302 I.P.C.

(2.) Appellant Mohammad Zakir along with Chhotu alias Abdul Hamid, Amir Khan, Wazir Khan and Gaffar Mohammad, was tried by the learned Additional Sessions Judge, Bhilwara, for the offence under Sections 302, 302/120-B, 302/34 IPC and Section 3 read with Sections 25 and 27 of the Indian Arms Act. The case of the prosecution is that on 26-5-83, at about 10.45 p.m. PW 1 Balu Ram and his brother Satya Narain were returning from their shop situated near a temple in village Asind. Balu Ram was pushing a hand-cart having three wheels and an empty drum was lying on the hand-cart. Satya Narain was carrying two kettles in his hands - one of the kettles was containing milk-cream and the another was containing curd. After covering some distance from the Railway Crossing, they saw Mohammad Zakir and Chhotu corning, from the opposite side having guns in their hands. Both the accused crossed them and after crossing two-three paces, accused-appellant Mohammad Zakir by his muzzle-loading gun, fired towards Satya Narain who, on receiving the injuries, fell down on the ground. Balu Ram thereupon cried and the accused ran away. Balu Ram called his younger brother Kailash and put Satya Narain on the hand-cart and took him to the Primary Health Centre, Asind, where he was attended by PW 11 Dr. Mangi Lal Sharma, who medically examined him, gave him the neces sary medical aid, called the police, the dying decla ration of, injured Satya Narain (Ex. P. 14) was recorded by PW 31 Ishwar Lal SHO, and the matter was, thereafter, referred to Mahatma Gandhi Hospi tal, Bhilwara, where Satya Narain was admitted at about 1.00 a.m. on 27-5-83 and he was attended by PW 10 Dr. Fateh Singh Choudhary -- the medical jurist. The condition of injured Satya Narain was serious and, therefore; his dying declaration Ex. P11 was recorded by PW 18 Ganpat Singh, ASI Police. Satya Narain breathed his last in M. G. Hospital, Bhilwara, at 5.20 a.m. The prosecution, in support of its case, examined thirty-one witnesses. The ac cused, in their-defence, examined three witnesses. The case of the accused, put-up in the defence, was that accused Mohammad Zakir is having the weak eye sight and he is completely blind by one, eye and see very little from the another eye and, therefore, he could not carry the gun in the night and even cannot go out-side the house in the night and some persons used to come in the area for hunting rabbits and pea cocks and Satya Naraian might have received gun-fire injuries at the hands of some hunter. The learned Additional Sessions Judge did not believe the de fence version and rejected the same. He, however, came to the conclusion that the prosecution has been able to prove the case against the accused-appellant beyond a reasonable manner of doubt and convicted the accused-appellant for the offence under Section 302 IPC and sentenced him to undergo imprison ment for life and a fine of Rs. 100.00 and in default of payment of fine further to undergo one month's rigorous imprisonment. He, however, acquitted the accused-appellant of the offence under Section 3 read with Sections 25 and 27 of the Indian Arms Act. The learned Additional Sessions Judge, also, acquit ted the co-accused of the offences under Sections 302, 302/120-B and 302/34 IPC as according to the learned trial Court there was no evidence on record to prove the criminal conspiracy to commit the offence or any common intention thereof to commit the murder of Satya Narain. It is against this judg ment dated 11-8-86, passed by the learned trial Court convicting and sentencing the accused-appel lant for the offence under Section 302 IPC that the appellant has preferred this appeal.

(3.) It is contended by the learned counsel for the appellant that PW 1 Balu Ram is not an eye witness to the occurrence as no blood was found on his clothes though he alleged to have lifted the injured; the kettles were not found at the place of the incident and Balu Ram did not receive, any, injury though according to him he was accompanying the de ceased and is evidence, also, does not find corroboration from the medical evidence. It is, also, con tended by the learned counsel for the appellant that the appellant had no motive to commit the murder of Satya Narain and the prosecution witnesses Kailash and Babu Lal do not corroborate the prosecution case and from the evidence produced by the pros ecution, no case against the accused-appellant is made-out and he, therefore, deserves to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the appellant has been rightly convicted and sentenced by the learned trial Court.