SHIV RATAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) APPELLANT Shivratan has preferred this appeal against the judgment of the Additional Sessions Judge, Bikaner, dated March 14, 1975 against his conviction and sentence under Section 326 and 324, IPC.

(2.) THE facts alleged by the prosecution are these. On 7 3 74 at about 10 30 pm. Chandraprakash, Ramprakash and Jethmal were returning to their houses from public -park. When they reached in front of Sardul School, appellant Shiv Ratan with his two or three companions assaulted them Shiv Ratan struck a knife blow on the right shoulder of Ram Prakash, while he was sitting on the carrier of a cycle. He got down from the cycle' Thereafter Shivratan gave another knife blow on the lower part of the abdomen of Jethmal. Ramprakash grappled with Shivratan. They fell down. The appellant then inflicted a knife blow on the pubic part of Ramprakash. Chandraprakash caught hold of the knife by his left hand, but Shivratan anatched it away with force. This caused an injury on the palm of Chandra Prakash. Shivratan then caught hold of the bushirt of Chandraprakash and inflicted two knife blows on his neck. Thereafter, the appellants ran away. The injured hired a Tonga and went to the hospital The police was informed and PW 7 Bhajansingh recorded the statement Ex.P/1 of Chandraprakash and on its basis recorded the first information report of incident and registered the case. During the investigation, the injured were medically exami3ned and a knife was recovered from the possession of the appellant. Some days after, Jethmal succumbed to his injuries The post -mortem examination of the dead body was conducted. It is also the prosecution case that 00 11 -8 -74 dying declaration of Jethmal was recorded. After completing the investigation, the police field a challan in the court of the Chief Judicial Magistrate, Bikaner, who committed the case to the Sessions for trial. The appellant was also charged for an offence under Section 302, IPC for committing murder of Jethmal. How ever, learned Additional Sessions Judge acquitted the appellant for the offence of murder and convicted him in the manner stated) above.

(3.) IT was argued by the learned Counsel for the appellant that the learned Additional Sessions Judge was in error in convicting the appellant solely on the testimony of Chandraprakash PW1 as it was found lacking in various respects. He did not explain the numerous injuries caused to the appellant. He could not stand the test of the cross examination and had to admit that he did not see the appellant inflicting the injuries on Jethmal. In the first information report, it was alleged that the appellant in the company of two or three persons attacked Chandraprakash and others However, at the trial only the appellant was fought to be implicated. The investigation was unfair and available independent witnesses to the incident were withheld. This led to the presumption hat the independent witnesses would not have supported the prosecution case.