RAGHUNATH SINGH & OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Raghunath Singh, his brother Ishwar Singh and his (Raghunath Singh's) son Mahavir Singh alias Tampe were convicted the first named under section 302 Penal Code and the remaining two under section 302 read with Sec. 34 Penal Code and each was sentenced to imprisonment for life and a fine of Rs. 10,000.00 or in default of its payment to further rigorous imprisonment for two years on 6.7.94 by Mr. Brijlal Bundel the then Additional Sessions Judge, Jhalawar. Aggrieved they have directed the instant appeal against their conviction and sentence.

(2.) The prosecution case, in sum and substance, was that some days before the occurrence Ishwar Singh accused had misbehaved with a sister of Piru Lal deceased on account of which the latter had administered a thrashing to the former. On the fateful day (3.9.93), while Chander PW 3 and his brother Piru Lal deceased were returning from the fields in the area of their village Kotadi at or about 8/9 am the three accused of whom Raghunath Singh was armed with a knife besides a gun and the other two Mahavir Singh alias Temple and Ishwar Singh with lathis pounced upon the deceased Piru Lal and belaboured him. Chander PW 3 raised a hue and cry and followed the accused who took the deceased to the" Bajrangbali temple, there Raghunath Singh accused gave a knife blow to the deceased on his back and the other two accused hit him lathi blows. As per the version given in the FIR, the occurrence was witnessed by Devi Lal PW 2, Kaluji Gujar PW 1 Keshar Bai PW 6 (deceased's sister) and many others from the village. The accused thereafter made good their escape from the spot. The deceased who succumbed to his injuries, was removed in a animal driven cart by Chander PW 3 his sister Keshar Bai PW 6 his mother Gyani Bai PW 8 Police Station Pidawa where Chander PW 3 submitted written FIR (Ex.P 3) on the basis of which formal FIR (Ex.P 4) was registered by SHO Sh. Bajrang Lal Verma PW 15. The post mortem was performed the same day in the after-noon by Dr. Hari Mohan Gupta PW 13 whose post mortem report is Ex.P 16. The case was investigated into by the police. The accused were arrested. In due course and the weapons of offence were recovered from the accused from their places of concealment in pursuance of their respective disclosure statements. On these facts after completion of investigation the accused were challaned by the Police and were committed to stand their trial in the Court of Session vide formal order of commitment passed by the concerned ilaka Magistrate. In support of its case the prosecution examined a total of 15 witnesses including Kalu PW 1, Devilal PW 2, Chander (informant) PW 3, Udailal PW 4, Kesar Bai PW 6, Gyani Bai PW 8 eye witnesses, Doctor Harimohan Gupta PW 13 (the medical man) and the investigating officer Bajrang Lal Verma PW 15. In their statements at the close of the prosecution case the accused denied the allegations against them and pleaded their false implication. They produced Laxmi Narayan DW 1 in their defence. The result of their trial has been noticed at the out-set.

(3.) By the learned counsel for the appellants the arguments pressed into service before us are (i) that Chander PW 3 the informant at the time he appeared and testified before the trial court gave an altogether different version from that given by him in the FIR inasmuch as he now claimed that Mahaveer Singh alias Tampe accused was armed with a farsi and knife, that when the accused took the deceased to the Bajrangbali temple he instead of following them had run to his house within the abide of their village and fetched his sister Kesar Bai PW 6 and their mother Gyani Bai PW 8 and that at the Bajrangbali temple the accused had inflicted a knife below on the deceased on his ribs as well, (ii) that Udailal PW 4, who was not named as an eye witness in the FIR though he was subsequently cited as such during investigation when his police statement was recorded on the 9th of that month, at the,time he deposed at the trial maintained that the deceased was set upon by three' accused in Udailal's field and at that time the deceased had cried out addressing Raghunath accused as Raghunath dadaji to let him go as the knife had been thrust in his abdomen up to the hilt and that after assaulting him in the said field the accused had taken the deceased to the temple of Hanumanji and there Chander PW 3, his mother and sister had arrived and Udailal had at that time left as that was the time for him to attend to his she buffalows. Thus his version of the incident was different from that given by the informant either in the FIR or in his statement in Court at the trial, (iii) that Kesar Bai PW 6 the deceased's sister had in cross examination admitted that no below was given in her presence (iv) that the informant in his cross examination admitted that it had taken him some fifteen minutes to reach their house from the spot when he fetched his mother and sister for their house was some two kilometers distant therefrom and he had taken 10-15 minutes to cover the distance in the reverse direction from their house to the Bajarangbali temple thereby rendering the witnessing of occurrence either by him or his sister and mother at the Bajarangbali temple improbable for the accused would not commune to belabour the deceased for that much period or wait to cause the knife below after his arrival accompanied by his sister and mother meaning thereby that neither of them witnessed the occurrence at the Bajarangbali temple, (v) that the account of scribing of the FIR given by Chander informant that he had jotted down the FIR while travelling in the animal driven cart with the deceased to the police station was belied by Kesar Bai PW 6 who was just as emphatic that her brother had not written the report while travelling in the animal driven cart ali of which was irreconcilable and suffices to throw a pall of doubt on the prosecution case as such the conviction and sentence of the appellants were rendered unsustainable.