GUR DASS SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 26 -9 -1981 passed by the learned Additional Sessions Judge No. 2, Hanumangarh whereby he has convicted the accused appellants Gurdass, Mangatsingh, Payarasingh and Dilipsingh under Section 302 read, with Section 149 I.P.C. and sentenced him to life imprisonment with a fine of Rs. 2,000/ - and in default of payment of fine to further undergo two years' rigorous imprisonment. He has further convicted the accused appellants under Section 148 I.P.C. and sentenced them to one year's rigorous imprisonment. Both the sentences are directed to run concurrently.

(2.) THE facts giving rise to this case are that on 15 -9 -1978 deceased Jogendrasingh informed the Station House Officer, Police Station, Hanumangarh that at about 7.00 p.m. in the evening when he was going back to his house after closing his shop along with Harbansh Singh and reached near the railway gate there he found accused Gurdass Singh along with his son Mangatsingh armed with Kirpan along with his another son Dilipsingh armed with Kirpan and another person armed with Gandasi. Mangatsingh gave him a blow with Kirpan on his right leg. The other, person who was armed with Gandasi gave a blow on his left leg. It is said that Gurdass was also armed with a Takua and Payarasingh armed with Gandasi. Accused Gurdass Singh exhorted his two sons to kill him Payarasingh hit the deceased on his head while Mangatsingh gave a blow on his right leg. Thereafter, all the accused appellants started beating with their weapons. Harbansh Singh wanted to intervene and save him as a result of which he has also received injuries. Thereafter, the deceased fell unconscious on the ground. Thereafter, wife of the deceased came on the scene of occurrence and she carried him in a rickshaw to the Hospital. It was further stated by the deceased that the accused persons are inimically motivated towards him because he has already filed a complaint under Section 107 Cr. P.C. against the accused persons. On the basis of this information given by the deceased a case under Sections 307, 326, 325, 324, 147, 148 and 149 I.P.C. was registered against all the accused persons.

(3.) WE have heard the learned Counsel for the appellants and the learned Public Prosecutor and have gone through the judgment as well as the record. Mr. Bhagwati Prasad, learned Counsel for the appellants has strenuously urged that the incident has taken place on account of old enmity and the testimony of Harbansh Singh PW 6 is not reliable and the dying declaration is not worthy of credence. We have gone through the dying declaration, the statement of PW 6 Harbansh Singh and other evidence on record PW 6 Harbansh Singh has deposed that when he along with deceased Jogendra Singh were going to Hanumangarh town and when they reached near the railway gate at that time, Mangatsingh, Dilipsingh and one more person came there and surrounded them. He identified Mangat Singh, Dilip Singh and Luna Ram Mangal Singh and Dalip Singh were armed with Kirpans and Lunaram was armed with Gandasi. He said that Mangatsingh gave the blow on the right leg of deceased and Luna Ram gave the Gandasi blow and thereafter Gurdass Singh and Payarasingh also came and they also gave beating with Takua and Gandasi. Accused Gurdass Singh exhorted his two sons do not spare the deceased. He tried to intervene but he could not succeed and he also received injuries. Accused persons left the place believing that the deceased has expired. Thereafter, wife of the deceased and a rickshaw puller came and some more persons came there. The deceased was immediately taken to the Hospital and he immediately rushed to the police station. When he reached at the police station, he was informed that one Charan Singh, ASI has already left the police station. We have gone through the statement of this witness and we are of the opinion that there is no reason to disbelieve the testimony of Harbansh Singh. He has stood well in the cross examination and the defence could not shatter his testimony. Likewise, we have also gone through the dying declaration Ex P 5, which was recorded by the Magistrate and after going through the dying declaration Ex P 5 where in the deceased has given out the whole version of the incident. The dying declaration Ex.P 5 stands duly supported by the testimony of PW 6 Harbansh Singh. The only difference between the dying declaration given by the deceased and Harbansh Singh PW 6 is regarding the identity of Lunaram. The deceased could not identify the accused Lunaram, therefore, he could not name that person. However, Harbansh Singh PW 6 has named Lunaram. But the benefit of doubt regarding this variations has already been given by the learned Additional Sessions Judge and he has acquitted the accused Lunaram. Thus, we are of the opinion that the learned Additional Sessions Judge has rightly convicted the accused appellants for committing murder of the deceased Jogendra Singh.