BHAGWANDAS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment of learned Sessions Judge, Ajmer, dated February 5, 1986 where-by he convicted the accused- appellant for offence under S. 304 Part (III) IPC and sentenced to seven years rigorous imprisonment and a fine of Rs. 5000/- and kin default of payment of fine he was directed to further undergo four months rigorous imprisonment.

(2.) On November 5, 1983, a report was lodged at police station, Alwar Gate, Ajmer by Dr., V.D. Kavia, Medical jurist J.L.N. Hospital on phone to the effect that Durga Prasad, since the deceased has been admitted to hospital in an injured condition. Having take down the information Station house Officer went to the hospital, by that time Durga Prasad had succumbed to the injury and his brother Nand Kishore gave him a written report where in Mahendra Singh, Ashok and one Kishore were shown as witnesses who were present at the time of incident. The prosecutions story is only to the extent that when the deceased was sitting alongwith aforesaid three persons, Bhagwan Das suddenly came with a knife and inflicted a blow in the chest of Durga Prasad and ran away and then the story of his taking to the hospital was mentioned. A case was registered for a offence under Section 302 IPC and investigation commenced. After completing the investigation a charge- sheet was submitted in the court of Chief Judicial Magistrate, Ajmer, who committed the accused to Sessions for trial. Accused pleaded not guilty to the charge and claimed to be tried. The prosecution examined 15 witnesses in support of its case. Accused denied the occurrence as mentioned by the prosecution. He took the defence of accidental injury due to grapple. According to him it was the deceased who wanted to strike him with the knife. One witness, namely, Durgawaiti mother of the accused was examined in defence who too came with a story of grapple. She came out with a motive that the deceased who is a distant relation and is a grand father tried to take liberty with his daughter, which was objected to by his son and it was because of this that deceased had intended to inflict injury on the accused. It is pertinent to mention that prosecution examined wife of the deceased to prove the motive which was that accused demanded Rs. 100/on loan from the deceased which was refused by the latter and this was felt bad by the accused. Learned Trial Judge relying upon the statement of Mahendra Kumar P.W. 7 corroborated by medical evidence and other circumstance, convicted and sentenced the accused as indicated above against which this appeal has been field.

(3.) After filing the appeal, it was admitted on April 14, 1986, and record was called for hearing the bail application, but thereafter none was present to press the application. The case was adjourned from time to time, but none appeared. This court then issued a notice to the learned counsel for the appellant and also to the accused. The accused presented himself in pursuance of notice and stated that they had instructed his local lawyer Shri jai Singh to appoint a counsel in the high Court. Notice was therefore, issued by him to Shri Jai Singh Rathore, who appeared and moved an application that he was only engaged in the trial court and not in the High Court, he also filed alongwith the reply a letter from the accused showing that he had paid the fee to Shri Jai Singh only for the trial court, but he is now appointing him as his lawyer in this court also and hence he should be provided an opportunity to argue the case. Though this reply has been filed on September 28, 1986 and also the power, but the counsel has never cared to appear and represent the case. Mr. Choudhary orally stated that no fee was paid to him by Shri Jai Singh through whom he was engaged and he was not obliged to argue the case. I can only bemoan and regret on such attitude of the learned counsel in criminal case. The poor accused has been tossed from pillar to post. Though a letter has been obtained from accused giving a chit to Shri Jai Singh for past but mentioning since September 28, 1986 he will be represented by Shri Jai Singh Rathore and his name also has been shown hi the cause-list, but he has not cared to appear. I strongly condemn this attitude towards an accused in jail and express my displeasure. I anticipated such sort of attitude, from my past experience and that I may have to seek the assistance of one of the counsel, I had directed the Registry to appoint an amicus curiae and the Registry had appointed Miss Rajesh Khandelwal as amicus curiae who has assisted this court in going through the entire record with all sense of responsibilities and it is but for this that appeal is being disposed of by this judgment.