- (1.) Heard learned Counsel (Amicus Curiae) appearing for the Appellant and learned Counsel for the State. This appeal by special leave challenges the judgment and order dated 6.12.2005 of the High Court of Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No. 419 of 2001 urging various legal contentions.
(2.) According to the prosecution, one Tej Prakash was done to death on 29.2.2000 at 8.10 p.m. The reporting of the occurrence was done by Ramesh Chander, PW -4, the brother of the deceased Tej Prakash. The first information report narrated the incident as under: "12. .....Sir, it is submitted that today on dated 29.2.2000 at about 8 p.m. my brother went outside for taking medicine from doctor, after about ten minutes, 10 -12 persons of our colony including Jhabarji Choudhary told us that three boys stabbed my brother Tej Prakash in Shri Ram Nagar and fleed from the scene, Then I immediately came on the site, my brother was lying there besmeared with blood. Many persons of our colony were standing there. Someone has already given information to the Police. At that time, police also arrived at the spot. In the way, me and Sub -Inspector of Police asked my brother as to who have stabbed you thereupon he named one Girraj among the boys who stabbed him. Apart from that he was not telling anything else. Some children residing in our neighbour also saw this incident. My brother Tej Prakash was having stab wounds on the posterior part of his neck, large quantity of blood was coming out from this wound. While taking him to hospital, he fainted in the way near collectorate. When we admitted him in the emergency of S.M.S. Hospital, doctor declared him dead...." During the course of investigation the police recorded statements of Suresh Kumar, Jhabar Mal and Maliram, who were subsequently examined as prosecution witnesses in the trial to prove the charge against the Appellant. According to the version of these witnesses, the deceased had given the names of the assailants. Going by the version of these witnesses, three persons were suspected to be involved in the occurrence viz., the present Appellant, Devender and Rajinder. The accused persons were interrogated and the statement of the Appellant Under Sec. 27 of the Indian Evidence Act, led to the discovery of a blood -stained shirt and a knife. After due investigation, charge -sheet was filed and these accused persons were tried for the offence of murder of said Tej Prakash.
(3.) The prosecution examined Ramesh Chander as PW -4 and Maliram as PW -5. These two witnesses, in their deposition in the Court have referred to the fact that they had reached the place of occurrence soon after the incident. They had found Tej Prakash seriously injured and said Tej Prakash, in a low voice could utter the name of one of the assailants viz., that the of the present Appellant. The other two witnesses i.e. PW -9 and PW -10 further submitted that they had also independently reached the place of occurrence and that said Tej Prakash had given out names of three assailants viz., that of the aforesaid three accused persons, who were being tried. The medical evidence was unfolded through Dr. B.R. Baiwa, PW -16, who found the following injuries on the dead body of Tej Prakash: "1. Swelling 4 x 3 c.m. (Lt.) side front to temporal region of scalp lower and lowerly. 2. Swelling 4 x 2 c.m. back of occipital region of scalp. 3. Abrasion 1 x 4 c.m. lateral on (Lt.) eye.;