RAMESH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the above five accused appellants against the judgment dt. 23. 5. 2002 of learned Additional Sessions judge No. l, Sriganganagar whereby he convicted all of them under Section 302 read with section 149 IPC with imprisonment for life and to pay a fine of Rs. 1000/- and in default to further undergo three months R. I. All the five accused were also convicted for the offence under Section 148, IPC and sentenced to one year's R. I. along with a fine of Rs. 500/- and in default to further undergo one month's R. I. Both the substantive sentences were ordered to run concurrently.

(2.) THE prosecution story in nutshell is that on 7. 11. 2002 Smt. Charanjeet Kaur PW 2 mother of deceased Gurjant Singh filed a report Ex. P. 1 before the S. H. O. Police Station kotwali Ganganagar that she is living at sethia Farm opposite the Sweet Pills factory. Her husband Gulwant Singh is employed in rajasthan Home Guard and daughter was blessed with a baby about 4-5 days back. Her son Gurjant Singh aged 22 years is also working in Rajasthan Home Guards. Accused appellant Atma Ram who used to reside 7-8 years back as her neighbour, started coming to her house two years back with fellow persons. On account of their family having young daughters, they objected. Upon objection, the quarrel took place between accused Atma Ram and his son Gurjant for which accused Atma Ram filed a case against her son Gurjant at the police Station and since then, accused Atma ram developed enmity with her son Gurjant. On the preceding day at 8 p. m. accused appellants Atma Ram Manoj and Heeralal abused her son Gurjant and today in the morning at 9 a. m. , when Gurjant went out for ironing his clothes, then one Guddi came to her and told that her son was being beaten at Bhagwandas Chowk near the shop of Raju dhobi. Upon hearing this she went at the spot. Accused-appellants including one babu were having knives, hockies and lathis in their hands. Accused appellant Atma Ram inflicted a knife blow on the stomach of her son Gurjant. When she rushed and caught accused Atma Ram then Babu, brother of accused Atma Ram inflicted a hockey blow on her right hand and second blow at her back whereupon she fell down, Thereafter gurjant ran away from the spot and entered into the compound of a house, where all the accused-appellants including Babu inflicted blows to Gurjant with knife, hockey and lathis. When she shouted Mani Ram and satpal came on the spot and on seeing them, the accused ran away by that time, shivdarshan and Ravindra Bakshi came there and took her son in their vehicle to the hospital where he died. Upon this report, the FIR being No. 390/2000 was registered and the police commenced investigation. During the course of investigation, the accused were arrested and on their informations, recoveries of weapons were made. The recovered blood-stained clothes and weapons were sent for chemical examination. After investigation, all the five accused appellants were charge sheeted by the police under Sections 147, 148, 323 and 302 read with Section 149 IPC in the court of C. J. M. Sri Ganganagar who committed the case to the Court of Sessions. Learned addl. Sessions judge No. 1 Sri Ganganagar after hearing the arguments on charge framed charges under Sections 148, 302 read with Section 149 and 323 read with section 149, IPC against all the five accused, to which they pleaded not guilty. The prosecution examined 12 witnesses. The statements of the accused were recorded under Section 313, Cr. P. C. They produced mani Ram DW-1 in their defence. After hearing the final arguments the learned trial judge acquitted all the accused appellants under Section 323 read with Section 149, ipc but convicted them for the offences under Sections 148 and 302 read with section 149 IPC as above. Being aggrieved by the judgment of the learned trial Judge this appeal has been preferred.

(3.) LEARNED counsel appearing on behalf of the accused-appellants have drawn our attention to the 3 testimony of eye witnesses smt. Charanjeet Kaur PW-2 and Satpal PW-5, mother and maternal uncle of deceased-Gurjant respectively and submitted that from the evidence of these two witnesses, neither any common object nor common intention is established to kill deceased-Gurjant. According to the learned counsel, the enmity of deceased Gurjant was with accused-appellant Atma Ram, who filed a case against the deceased and the evidence against him is that he inflicted knife blow on the stomach of deceased but this knife has been recovered from accused-Ramesh kumar who is brother of accused appellant atma Ram. Satpal PW- 5 has stated in his police statement Ex. D-2 that a knife blow was given by accused Ramesh Kumar and not by accused-Atma Ram but in the court statement, he named both the accused Atma ram and Ramesh Kumar in inflicting knife blows. The mother of deceased namely Smt. Charanjeet Kaur who reached later as per the version of Satpal, PW-5 has stated that knife blow was given by accused Atma Ram but knife has not been recovered from accused Atma Ram and on the contrary, the recovery from accused-Atma Ram is of "dang" (stick ). It has been further argued by the learned counsel for the accused appellants that another eye witness, as stated in the FIR Ex. P. 1 is Mani Ram but he has not been examined by the prosecution and per contra, he has been produced by the defence as DW-1 and he has not named the accused-appellants in inflicting any blow on the person of deceased Gurjant. According to the learned counsel the police has prepared fake inquest memo, recovery memos and informations of the accused which is recorded after five days of their arrest. The FIR is also ante dated. Therefore, according to the learned counsel the investigation has not been conducted in a fair manner and accused appellants are entitled to the benefit of doubt. Learned counsel has also placed reliance on certain decisions on the question of altering conviction from Section 302 to Section 304 part-II IPC, as there being only one knife blow so as to bring the case under clause IV of Section 300, IPC. Learned counsel has further drawn the attention of this Court that while recording statements of the accused under Section 313, Cr. P. C. no question was put to them with regard to the FSL report.