KRIPAL SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) CHALLENGE in these appeals is to the judgment dated November 22, 2002 of the learned Additional Sessions Judge (Fast Track) No. 1 Jhalawar whereby accused Kripal Singh was convicted and sentenced under Sections 302, 394and 324 IPC and co-accused Ramlal, Arjun Singh and Sultan Singh were acquitted of all the charges. Kripal Singh is the appellant in appeal No. 16/2003. Whereas Appeal No. 513/2003 has been filed by the State of Rajasthan.

(2.) IT is the prosecution case that on July 28, 2001 at 9. 15 PM informant Sunil Goyal (P. W. 13) submitted a written report (Ex. P- 1) at Police Station Dug with the averments that on the said day around 6. 30 PM he along with his elder brother Yashwant and Paras Mal had gone on motor cycle RJ- 20 8m-9309 to their agricultural farm situated at village Doodhlai and while they were returning back Kripal Singh, Ramlal, Arjun Singh and Sultan Singh met them near the house of Dhoole Singh. They were armed with axe, lathi, Dharia, sword and Pharsa. They surrounded the motor cycle and exhorted to kill Yashwant Singh. The informant and Paras Mal got down and distanced themselves but Yashwant could not and he was severely beaten up. All the assailants inflicted blows with axe, Dharia, Sword, Pharsa and Lathi on the person of Yashwant. The assailants made attempt to kill the informant and Paras Mal while they were running for their life. They were chased by Kripal Singh who gave a blow with axe on the left shoulder of Paras Mal. On that report case under Sections 302, 323, 394 and 34 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jhalawar. Charges under Sections 302, 394, 394/34, 324 or 324/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Sec. 313 Crpc, the appellant claimed innocence. Three witnesses in support of defence were examined. Learned trial Judge on hearing final submissions, while acquitting co-accused persons, convicted and sentenced the appellant as indicated above.

(3.) LEARNED counsel for the appellant Kripal Singh while assailing the impugned judgment made following submissions:- (i) The incident occurred in the chowk of village, which was a place in which villagers always remain present, but no independent person was made a witness. The trial Court erred in convicting the appellant on the basis of testimony of Sunil Kumar (P. W. 13), who was not present when the incident occurred. (ii) Shiv Singh (Dw. 2) and Bhagwan Singh (Dw. 1) categorically stated that Sunil Kumar (P. W. 13) was sitting in the shop, when they went to bring Khad and to meet Yashwant and in the meantime Paras came to shop and informed that Yashwant was given beating in village Dudhlai. (iii) Nathu Singh (Dw. 3) ruled out the presence of Sunil Kumar (P. W. 13) at the time when Yashwant came riding on motor cycle and was given beating. If Sunil Kumar (P. W. 13) would have been present at the place of occurrence he could have positively made attempt to rescue his brother and could have sustained injuries. Nathu Singh also ruled out the presence of any one of the accused. (iv) Paras Mal (P. W. 1) did not support the prosecution story and the conviction of appellant is wholly unfounded. (v) FIR (Ex. P-1) was lodged after an inordinate delay of one hour forty five minutes. The incident alleged to have taken place at 7. 30 PM, whereas the report was lodged at 9. 15 PM, which cast doubt on the veracity of prosecution version and conviction of appellant is wholly illegal. (vi) LEARNED Lower Court has wrongly taken the motor cycle to have been recovered from the appellant, solely on the basis of testimony of Jagdish (P. W. 8), Birdhichand (P. W. 20) and Hemraj (P. W. 21 ). No independent witness was associated when the motor cycle was recovered vide memo Ex. P-51. (vii) It has not been proved that human blood was found on the Kulhari, motor cycle and Dhoti of appellant and the same resembled the blood group of the deceased. (viii) No independent witness was associated at the time of alleged recovery of Kulhari at the instance of appellant. (ix) LEARNED lower Court has acquitted other accused persons, whereas on the same piece of evidence the appellant has been convicted.