ABDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence of the accused appellants by the learned Additional Sessions Judge, Hanumangarh 31 -7 -1976 whereby he has convicted all the three accused appellants under Section 302 and 14.8 IPC and sentenced them to life imprisonment under Section 302 IPC and under Section 148 two year's rigorous imprisonment. He has however, acquitted the accused appellants under 379 IPC and Section 25(1)(a) of the Arms Act.

(2.) THE facts giving rise to this case are that an oral report was filed by one Keshar Singh PW 2 on 8 -6 -1973 at about 6.30 p.m. at Police Station, Tibi stating that at 3.30 p m. Balbirsingh son of Sadhu Singh came to him and informed him that in Talwara Jheel he was assistant to Vaid Jarnail Singh and at about 10.30 a.m. Dheer Singh and Gurubachan Singh both came with an engine loaded in a bullock cart They placed their cart before the shop of Jarnail Singh and came inside the shop. Dheer Singh asked him to bring two glasses of Lassi. When he brought the two glasses of Lassi Dheer Singh was sitting out -side the shop in the verandah on a chair and Gurubachan Singh was standing in the verandah. He gave one glass of Lassi to each one of them and they were drinking the same. At about 11 a.m. Ashiq, who was armed with a 12 bore double barrel gun came at the shop and he fired a shot at Dheer Singh who was sitting on a chair. Dheer Singh was also armed with a gun and in order to save himself he also fired at Ashiq. The fire of Dheer Singh hit Ashiq on his head and he fell down on the ground and died Ashiq was accompanied by Saida, who was armed with 12 bore gun, Saida who was also armed with a 12 bore gun and two more persons were with him who were armed with guns. All of them fired at Dheer Singh and Dheer Singh fell down from the chair and died. Thereafter, all these persons took away the guns of deceased Dheer Singh and deceased Ashiq and left the place leaving behind both the dead bodies. This incident was witnessed by Jarnail Singh and Gurubachan Singh. This oral information was recorded and on that basis a case under Sections 302, 149, 379, 147, IPC and Sections 25 and 27 of the Arms Act was registered against the accused persons. The police took up the investigation, the dead bodies were taken into custody and sent for post mortem and the necessary site inpsection memo was prepared. The Investigating Officer, PW 14 Sujan Singh collected the pellets from the shop of Jarnail Singh and he also found some pellects in the shop of Ramkishan All the guns including of the deceased which were recovered at the instance of the accused persons were sent of ballistic expert along with empties recovered from the scene. Accused Maida and Saida were arrested on 7 -3 -1974 and accused Abda was arrested on 7 -8 -1973. The police after investigation filed the challan against all the three accused appellants and the case was ultimately committed to the court of Sessions for trial and the learned Additional Sessions Judge charged all the three accused persons under Sections 302, 147, 148 379, IPC and Section 25(1)(a) of the Arms Act. The prosecution examined as many as 14 witnesses and got 30 documents exhibited. The learned Additional Sessions Judge after due trial convicted and sentenced all the three accused persons as aforesaid.

(3.) MR . Singhvi, learned Counsel for the appellants has urged that the testimony of all the three eye -witnesses namely, PW 1 Jarnel Singh, PW 4 Gurubachan Singh and PW 11 Balbir Singh was not a reliable one Learned Counsel also submitted that in fact deceased Dheer Singh was the assailant and he fired the shot first and thereafter in retaliation the accused party fired a shot Learned Counsel also laid great stress on the injuries and submitted that number of injuries are ante mortem; Learned Counsel has also invited our attention to the pellets recovered from the shop of Ramkishan for propounding the theory that as a matter of fact the first shot was fired by Dheer Singh and pellets of which were recovered from the shop of Ramkishan. Learned Counsel has also submitted that accused Abda was arrested on 7 -8 1973 and his name was not mentioned in the First Information Report he was not identified by Gurubachan Singh PW 4 but he was only identified by Balbir Singh PW 11. But no person identical to that of Abda was mixed up in the identification parade before the Tehsildar.