VIRI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a criminal appeal under Section 374(2) Cr. P.C. against the judgment of learned Addl. Sessions Judge, Deeg, dated 17 -12 -1983, by which accused appellant was convicted and sentenced to life imprisonment for offence under Section 302 I.P.C. Against judgment dated 17 -12 -1983 of learned Sessions Judge, Deeg.

(2.) BRIEFLY , the facts of the case are that the sons of deceased Amir Singh had committed murder of Chanku Singh, whose case was pending in the Court. On 23 -31983 the date of that case was fixed in the court, therefore, on that day in the morning deceased Amir Singh PW 3 Atma Singh and PW 7 Inderjeet Singh boarded Bus No. RRM 7445 from Kasba Nagar for coming to Deeg. In the same Bus, all the accused persons in that case were also travelling. When the bus reached near village Narayana, accused Viri Singh and Kumari Reshma are alleged to have attacked deceased Amirsingh with swords, due to which be fell down in the bus and accused Chanku, Pyari, Virma and Laxmi also caused injuries to him knives. On account of injuries of swords, the neck of the accused was cut off and he died on the spot. Accused Chanku Singh fired from his 12 bore gun, which struck in the roof of the bus. The conductor of the Bus Nand Kishore (PW 4) drove on motor cycle to the Police Station, Deeg and lodged an information regarding the occurrence. PW 8 Sriram SHO soon reached the spot, where PW 3 Atrna Singh handed over to him a written FIR Ex. P. 2, which was sent to the police station for registration. After some time, the police succeeded in arresting all the accused persons The dead body of deceased Amirsingh was brought to Deeg where the post mortem was conducted. After usual investigation, a challan against 6 accused persons under Sections 148, 302 I.P.C. and in the alternative under Section 302/149 I.P.C. was filed.

(3.) MR . Biri Singh, learned Counsel for the appellants has pointed out that the occurrence is said to have taken place on 23 -3 -1983 at 10.30 a.m. near the bus stand Narayana and FIR was lodged at 11.00 a.m. However, the FIR reached the court of Magistrate only on 25 -3 -1983, even though the concerned police station is at a distance of about one furlong only. There fore, no reliance can be placed on the truthfulness of the FIR. Ex.P 12 is the recovery memo of sword at the instance of accused appellant, but PW 5 Nawal Singh has denied the recovery of any sword in his presence. It is further pointed out that even though it is said that the sword was blood stained, but the same was not sent to the Forensic Laboratory and no report of Serologist has been filed to conduct the alleged weapon of offence with the appellant. It is further contended that PW 3 Atma Singh and PW 7 Inderjeet Singh are said to be the eye witnesses of occurrence, but PW 5 Nawal Singh has denied the presence of Atma Singh, PW 3 at the time of occurrence. The statement of PW 3 Atmasingh, therefore, cannot be relied, upon. It is further pointed out that in Ex.D 1 the statement of PW 3 Atma Singh recorded under Section 161 Cr. P.C., it has been stated that he and PW 7 Inderjeet Singh his nephew and deceased Amir Singh who is also his relative, came together from Semla Kala to Nagar boarded the bus at about 10 00 a.m. to go to Deeg to attend the date fixed in the court. However, he has denied this in his statement in the court and says that there was no court date in the court on that day and he had to file only an application in the court. He has also denied that deceased came along with him from Semla Kala to village Nagar and has stated that deceased is not related to him. It is, therefore, contended that no reliance can be placed on PW 3 Atma Singh, who changes the statements as it suits him. It is also contended that PW 7 Inderjeet Singh has stated that he came to know about the names of the accused persons through the police. Therefore, it was necessary to have held a test identification parade to establish the identity of the accused persons, which however has not been held. It is further pointed out that PW 3 and PW 7 when did not know the names of the accused persons and PW 3 says that when the police came, all the accused persons had run away, but still he gave the names of the accused persons in his statement under Section 161 Cr. P.C. It is further contended that admittedly, other passengers were also available at the site of occurrence when the police reached, but no independent witnesses have been produced in the case to support the prosecution story. It is pointed out that the learned trial court has disbelieved the prosecution witness in respect of 5 accused persons and acquitted them, but curiously enough believed the same witnesses to convict the accused appellant, which could not have been done. It is contended that there is no evidence to prove who is the author of grevious injury caused on the neck of deceased and, therefore, the accused appellant cannot be held to be responsible for causing death of the deceased in absence of any specific evidence on this point.