NEMI CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused appellants stood charged for having committed .the offence under section 302/34 Penal Code and were tried by the learned Sessions Judge Baran in Sessions Case No. 55 of 1395, who convicted and sentenced each of them under the said section for causing the murder of Vishnu Deva to suffer imprisonment for life and to pay a fine of Rs. 450.00 in default to further undergo three months simple imprisonment. In all the three instant appeals the aforesaid judgment has been called in question by the accused appellants.

(2.) The prosecution story as unfolded during trial may be summarised as foilows. A written report was lodged by the informant Jagdish with the Police Station Kotwali Baran on March 8, 19S5 around 1.05 a.m. alleging therein that on that night about 10.45 p.m. his brother Vishnu Deva (since deceased) was going to the house of Tej Karan Yadav to see the film on Televison. When Vishu Deva passed in front of the house of Ramesh Chand (accused), Nemi Chand, Radha Kishan, Ramesh and one Kailash caught hold of Vishnu Deva. Ratnesh and Radha Kishan pushed Vishnu Deva down, they set on his chest and inflicted blows with sharp edged weapons on his head. Hearing the hue and cry of Vishnu Deva. informant Tej Karan Yadav, Phool Chand, Kanhaiya Lal Yadav, Kanhiya Lal Meghwal rushed to the place of occurrence. While seeing them, the assailants taken to heels, Vishnu Deva was escorted to Hospital but he died on the way. On the basis of the written report a case bearing No. 98/95 for the offence under section 302 Penal Code was registered and investigation commenced. On conclusion of investigation charge sheet against the accused appellants was filed and case was committed to the court of Sessions Judge where charges under section 302 and in the alternate 302/34 Penal Code were framed against the accused appellants. They denied the charges and claimed trial. As many as 19 witnesses were examined by the prosecution in support of its case. The accused appellants denied the allegations appeared against them in their explanation recorded under section 313 Crimial P.C. No. evidence however was produced in defence. Learned Sessions Judge, after hearing the rival contentions convicted and sentenced the accused appellants as indicated hereinabove.

(3.) Mr. S.R. Bajwa, learned Senior Advocate appearing for the accused appellant Nemi Chand very strongly contended before us that in the instant case there is a lack of evidence on record to suggest that accused party formed common intention to kill deceased Vishnu Deva. The informant Jagdish falsely named one Kailash in the FIR against whom Investigation Officer did not find any evidence and he was not charge sheeted. The allegation against accused Nemi Chand in the FIR is that he caught hold of the deceased Vishnu Deva. The possibility of falsely implicating the accused Nemi Chand cannot be ruled out as from the record it is not borne out that Nemi Chand had any enmity with the deceased or he had close relations/friendship with the co-accused Ramesh and Radha Kishan. From the testimony of the witnesses, it cannot be said firmly that Nemi Chand was present at the spot or he actively participated in the alleged assault. In the alternative it was argued that even if the presence of Nemi Chand is established his case does not travel beyond 326/34 IPC. Reliance was placed on Kashmira Singh Vs. State of Punjab (AIR 1994 SC 1651) Munna and Ayyia Vs. State of U.R (AIR 1994 SC 278) and Daiya Moshya Bhil and Others Vs. State of Maharashtra (AIR 1984 SC 1717).