BAFATI KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal stems from the judgment dated September 25, 2000, rendered by learned Special Judge, SC/st (Prevention of Atrocities Cases) Kota in Sessions Case No. 100/1999, whereby the appellant was convicted and sentenced under Section 302 IPC to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer one year rigorous imprisonment.

(2.) THE prosecution story as pictured during trial is as under:- On July 26, 1999 around 12. 15 p. m. while Narain Singh, SHO was standing on the outer gate of Police Station Maqbara, Kota, he was verbally informed that Bafati (appellant) had inflicted knife blows on the person of Prem Chand Regar (deceased), who was removed to the hospital. This information was entered into Rojnamcha and police party headed by Mahaveer Prasad, ASI proceeded to MBS Hospital. In the Parcha Bayan (Ex. P/6) recorded by Mahaveer Prasad, ASI at 12. 45 a. m. Prem Chand stated that around 12. 00 Noon the appellant came to his house and demanded explanation as to why he (Prem Chand) allowed Harizan in the Mohalla nd having said so, the appellant inflicted knife blow on the left side of chest of Prem Chand and another blow on his left arm. Parcha Bayan of Prem Chand was forwarded by Mahavir Prasad ASI to Police Station Maqbara where case under Section 307 IPC was registered against the appellant and investigation commenced. After death of Prem Chand case was converted into one under Section 302 IPC. Since Prem Chand was a member of Scheduled Caste Section 3 of SC/st (PA) Act, 1989 was also added. Autopsy on dad body was performed, statements of witnesses were recorded, appellant was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge, SC/st (Prevention of Atrocities Cases) Kota. Charges under Section 302 IPC, 3 (2) (5) of SC/st (PA) Act and 4/25 Arms Act were framed. THE appellant denied the charges and claimed trial. THE prosecution in support of its case examined as many as 17 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however, examined. Learned trial Judge on hearing final submissions acquitted the appellant of the charges under Section 3 of SC/st (PA) Act, 1989 and 4/25 Arms Act, but convicted and sentenced him as indicated herein above.

(3.) HOWEVER, bench of three Hon'ble Judges of the Supreme Court in Koli Chunnilal Savji vs. State of Gujrat ( (1999) 9 SCC 562), held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored, merely because the doctor had not made the endorsement that the deceased was not in a fit state of mind to make the statement in question. Ratio indicated in Koli Chunnilal Savji (supra) was approved by the Constitution Bench of the Supreme Court in Laxman vs. State of Maharashtra ( (2002) 6 SCC 710 ).