BABU ALIAS RAJESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant was convicted under Sec. 302 of the Indian Penal Code and was sentenced to life imprisonment. He challenges the conviction and sentence in this appeal. THE case against the appellant was that on 4. 7. 93 at about 8. 30 to 8. 45 AM he went to deceased Ramsingh, scolded him and gave two knife blows to him which caused his death. Prem Singh, brother of the deceased lodged a FIR at 9. 45 AM at police station Pratap Nagar, Jodhpur which is at a distance of two kilometers from the place of occurrence. It was stated in the FIR that when Prem Singh and Ram Singh had gone some distance away from their house at about 8. 30 to 8. 45 on 4. 7. 93 and were entering the lime stone powder alongwith Kansingh, the accused appellant came there and scolded Ramsingh with the words "rsjs fnekx esa xehz T;knk gs D;k'' and taking a knife out of his pocket inflicted two injuries on the abdomen of Ramsingh. THE appellant Babu's younger brother Bheru also arrived on the spot. On alarm being raised by Prem Singh and Kansingh, Mahendra Singh and Doonger Singh came on the spot and Babu and Bheru ran away from the spot. It was further alleged in the FIR that on hearing the alarm Bhanwaria and Bhuria belonging to accused appellant Babu's party also came to the spot running and they pelted stones on the complainant party. After receiving injuries Ramsingh went some distance and fell down unconscious. By that time people from nearby also arrived on the spot. Ramsingh was put in a taxi and taken to Mahatama Gandhi Hospital, but immediately on reaching the hospital he died. It was stated in the FIR that Babu used to extort money from Kansingh & used to force him to give him pouches of Gutkha. On this there was a quarrel between these two 4, 5 days prior to the incident. According to Prem Singh, Babu had caused fatal injuries to Ramsingh because of this quarrel.

(2.) THE prosecution examined PW-6 Prem Singh and PW-9 Kansingh as the eye witnesses. PW-1 Mahesh Sharma, PW-4 Mohan Singh, PW-5 Roop Singh had not seen the assault, but had immediately reached the spot. THE witnesses of the memoranda prepared during investigation, the investigating officer, the Doctor who conducted the autopsy, were the other witnesses. THE accused appellant did not take a specific defence in statement under Sec. 313 of the Code of Criminal Procedure, but led evidence of two witnesses DW-1 Raju and DW-2 Maga Ram who admitted the presence of appellant Babu on the spot, but gave a totally different version about Ramsingh receiving injuries. Let us first discuss the evidence of eye witnesses PW-6 Prem Singh and PW-9 Ramsingh. PW-6 deposed that on the date of incident three brothers Ramsingh, Premsingh and Kansingh went to the spot where their house was being constructed. THEy were watering lime stone powder when Babu came and accosted Ramsingh with the words `` '' and inflicted two knife injuries in the abdomen of Ramsingh. On his raising alarm people from the locality collected there. Ramsingh ran towards his house, Bhuria, Bheru, Bhanwaria pelted stones on them. Ramsingh fell down on the way and their father also came there. Ramsingh was put in a taxi and taken to hospital where he was declared dead by the doctors. A report was lodged in the police station. This witness also stated that accused appellant Babu used to extort money and Gutkha from Kansingh and Ramsingh had gone to the accused and warned him not to do so. This according to the witness was the reason for the attack. A definite suggestion was given to this witness in cross- examination that Mahendra Singh and Doonger Singh had come on the spot with a knife and they had assaulted Babu with the knife, but instead of Babu knife hit Ramsingh and Mahendra Singh and Doonger Singh ran away with the knife. THE witness denied the suggestion. THE learned counsel for the appellant submitted that this witness was totally unreliable for the reason that he contradicts the FIR by stating that he did not know Mahendra Singh and Doonger Singh and also states that they had not come on the spot. It is also submitted on behalf of the appellant that the witness said that four hours were taken in getting the report lodged, on this basis it is submitted that the FIR is clearly lodged after investigation had begun because the witness Premsingh had gone first to Mahesh Sharma's house which was two kilometers away from the spot and then went to police station with him. According to learned counsel in the circumstances it was not possible to lodge the report within an hour at 9. 45 A. M. It was also submitted that the witness has admitted in the cross-examination that Raju, Banarasi, Shanti, Bhanwarlal, Bheria, Magraj and Abdul Rehman were present on the spot and none of these independent witnesses was examined. In any case Abdul Rehman's presence on the spot was specifically admitted by this witness, but he was also not examined.

(3.) THE learned counsel for the appellant thus submitted that independent eye witnesses were not examined though they were available. THEre were material contradictions in the versions given by the eye witnesses in the Court and the story given in the FIR rendering the testimony of eye witnesses wholly unreliable. THEre were no blood stains found on the clothes of PW 5 who claimed to have had taken the deceased in his lap. THEre was no trail of blood from the spot where the injuries were inflicted and the place up to which the deceased walked. According to the learned counsel the prosecution must fail because of all the above shortcomings in the prosecution case.