ISMAIL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) APPELLANT Ismail has preferred this appeal against the judgment of the Additional Sessions Judge, Alwar, dated January 1, 1975 for his conviction under Section 307 IPC and the sentence of 5 years' rigorous imprisonment and a fine of Rs. 200/ -, in default of payment of which further rigorous imprisonment for six months1.

(2.) THE prosecution case was under : On 6.10.1973 complainant Paltu went to the fields of Ginni and Ramchander in village Shikarion ka bas for ploughing them with his tractor. He was accompanied his half brother Ashraf. At about 4.30 p.m. when he was still at his work, Dalmor came there along with a number of persons in a tractor. The appellant shortly after wards also came there armed with a 12 bore gun on his scooter. Dalmor had a pistol with him while his other companions were also variously armed. They threatened the complainant with his life and then the appellant fired his gun at him. Paltu sustained pellet injuries on his left leg Some of the pellets also hit the tank of the tractor. The incident was seen by Ashraf, Ginna and Ram Chander. Complainant Paltu went away in his tractor directly to police section Sadar Alwar and lodged the FIR of the incident at 6.15 pm. A case was registered and the investigation began. Paltu was examined by Dr.P.S. Agrawal on the next day for his injuries. PW10 Ram Singh who was on that date the Incharge of the Police Station, registered the report, got the tractor photographed and took the dhoti of paltu in his possession. PW9 Laxminarayan recovered the gun from the possession of the appellant. After completing the investigation the challan was filed in the court of Additional Munsil Magistrate, 1st Glass No. 1, Alwar who committed the case to the court of Sessions. The learned Sessions Judge believed the prosecution evidence and convicted the appellant.

(3.) PW 1 Mohar Singh, PW2 Ginni, Ramchander had turned hostile The other three witnesses namely PW5 Kailash Singh, PW7 Paltu and PW8 Ashraf supported the prosecution case. It was argued by the learned Counsel for the appellant that the Sessions Judge was in error in not discarding the testimony of Kailash Singh. His name did not find place in the FIR and also he was examined quite a few days after the incident. In my opinion this argument ought to prevail. There is no cogent explanation as to why the name of this witness was not disclosed in the FIR and why he was examined by the police after so many days of the incident. It may be stated that this witness appears to be under some influence of Paltu otherwise he would not fall in line with the statements of Paltu and Ashraf. He also stated that Dalmor first fired with the pistol and then Ismail fired thrice with his rifle but only one fire could injure Paltu. The story of three fires and the fact that Dalmor also fired a pistol is not reliable as would be apparent from the discussion of the evidence of Paltu and Ashraf. I am, therefore, of the view that the statement of PW5 Kailash Singh cannot be used to corroborate the testimony of Pw7 Paltu or PW8 Ashrat. It was vehemently contended by the learned Counsel for the appellants that the core and substratum of the prosecution case stood deserted. The appellant had inimical relations with Paltu and Ashraf and, therefore, he was sought to be falsely implicated No doubt the FIR was lodged at the earliest bat it also reflected the attempt of Paltu to implicate a number of innocent persons. I have considered the argument carefully.