KRISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal directed against the judgment of the learned Additional District & Sessions Judge, Hanumangarh dated 4th of March 1986 by which the learned Judge has convicted the accused Krishan, Mithusingh and Dungarram under section 302 read with section 341 I. P. C. and sentenced to them life imprisonment with a fine of Rs. 2000/-, in default of payment of fine to further undergo one year's R. I.

(2.) BRIEF facts which are necessary for the disposal of this appeal are that on 8th October 1982, Vali Mohd. sen of complainant Mst. Rehmatbibi went to fetch bidi bundle from the shop of Asharam Meghwal. On the way Vali Mohd. was way-laid by all the three accused persons. It is alleged that Mithusingh was armed with Gandasi, Dungar Ram was armed with Lathi and Krishan was armed with a Gandasi. Shokat the younger brother of Vali Mohd. , was also playing around the temple near the scene of the occurrence. When he saw that his brother was being belaboured by these accused persons, he immediately rushed to the house and informed his mother Mst. Rehmatbibi about the beating of these accused persons. Thereafter Mst. Rehmatbibi along with her two daughters and son Shokat immediately rushed on the scene of the occurrence. It is alleged that at that time they saw Vali Mohd. was being belaboured by the accused persons. Complainants Rehmatbibi and her son Shokat raised alarm that as a result of which the accused persons withdrew from that place. Hansraj and Maniram ran away from that place. It is alleged that at the time of the beating Hansraj and Maniram were present on the scene. First information report of this incident was filed by Rehmatbibi on 9th of March 1982 at 8 A. M. at Police Station, Hanumangarh Junction. On the basis of this report a case under section 307 read with section 34 I. P. C. was registered. The injured Vali Mohd was taken to the hospital. Thereafter on 10th of October, 1982, when Mst. Rehmatbibi was taking the injured to Jaipur for treatment, the injured died near Sikar and, therefore, offence under section 302 I. P. C. was registered against the accused. The dead body of the accused was sent for postmortem. Police during the course of investigation prepared a site plan and arrested the accused; A Lathi was recovered at the instance of the accused Dungarram and likewise Gandasi from Mithusingh and Dungarram. After close of the investigation Police flled a challan against Mithusingh and Dungarram under section 302 read with sec. 34 I. P. C. in the court of Munsif and Judicial Magistrate, Hanuman-garh. A complaint was also filed against accused Krishan and a cognizance was taken against him. As such all the three accused persons were charged under section 302 and in the alternative under section 302/34 I. P. C. Prosecution examined six witnesses. The learned Sessions Judge after close of the trial found accused guilty as aforesaid. Hence the present appeal.

(3.) NOW this leaves us the sole testimony of P. W. 4 Shokat. He is the real brother of deceased aged 12 years. It is submitted that Mr. Kharalia learned counsel for the appellant that the Investigating officer has not pointed out place from where P. W. 4 Shokat could witness this whole beating. This emission on the part of the Investigating Officer in preparation of the site plan will not render the testimony of P. W. 4 Shokat as unreliable. So far as testimony of P. W. 4 Shokat is concerned, reading of the same shows that he has reason to be there as he was playing with his other friends at that time. It is not an unusual conduct. There-fore, that testimony of P. W. 4 Shokat is truthful. But the testimony of P. W. 4 Shokat also does not advance the case of the prosecution to any greater length for the reason that he has only witnessed the beating given by Dungar Ram with lathi on the victim. As such the accused persons cannot be convicted under section 302 read with section 24 I. P. C. as he has specifically staled in his cross-examination that he did not see Mithusingh and Krishan beating deceased Vali Mohd. Therefore, the case at best could not travel beyond section. 325 I. P. C. only. Since Doongar has also been charged under section 302 simplicitor and in alternative all the three accused persons have been charged under section 302 read with section 34 I. P. C. Since there is no evidence to show that Krishan and Mithusingh took any participation in beating, therefore, both are acquitted of all the charges. Accused Doongar Ram can only be held liable for causing injury by Lathi to deceased.