- (1.) The present appeal has been filed by the appellants- Rajpal @ Raju (appellant No.1) son of Banwari, Balwan (appellant No.2) son of Moman and Vijay (appellant No.3) son of Jagdish against judgment of conviction dated 14.11.2002 and order of sentence dated 16.11.2002 passed by the learned Additional Sessions Judge (Ad hoc), Hisar whereby the appellants have been held guilty for the offence punishable under Section 302 read with Section 34 Indian Penal Code (''IPC''-for short) for causing the death of Tek Chand Sarpanch in furtherance of their common intention and by actual participation. Besides, Rajpal @ Raju (appellant No.1) has also been held guilty for possession of a knife of a size beyond the permissible limit. Accordingly, he has also been convicted for the offence punishable under Section 25 of the Arms Act, 1959. The accused Banwari son of Mam Chand and Jagdish son of Banwari were acquitted by the learned Additional Sessions Judge (Ad hoc), Hissar as it appeared that they had been falsely implicated in the case. By a separate order, the learned Additional Sessions Judge, Hisar sentenced the appellants to imprisonment for life for the offence under Section 302 read with Section 34 IPC; besides pay a fine of Rs.500/- and in default of payment of fine the defaulting appellant was ordered to undergo further rigorous imprisonment of six months. Rajpal @ Raju (appellant No.1) was also convicted to rigorous imprisonment for one year for the offence punishable under Section 25 of the Arms Act. The sentences, however, were ordered to run concurrently with the sentence of imprisonment for life.
(2.) The FIR (Ex.P-14) in the case has been registered on the statement (Ex.P-12) of Chander Bhan son of Sant Lal resident of village Sahu (complainant) who is the brother of the deceased Tek Chand. It is alleged by the complainant-Chander Bhan that his elder brother Tek Chand (deceased) was Sarpanch of village Sahu. He was a worker of the Congress Party. For the last about 15 days, Banwari (since acquitted) son of Mam Chand, Rajpal @ Raju (appellant No.1), Jagdish (since acquitted) both sons of Banwari were threatening Tek Chand (deceased) brother of the complainant that they would finish him before the elections. The said persons were from the Lok Dal Party. On the date of the incident i.e. 21.02.2000 at about 9.00 pm, the complainant-Chander Bhan, Dalbir (PW-9) and Bhoria son of Maman Ram reisdents of village Sahu were coming back after serving meals to the staff (election staff) in the school and were going back to their respective houses. When they reached near the house of Mulkhi Ram; Tek Chand (deceased) brother of the complainant-Chander Bhan was seen coming from the opposite side. Vijay (appellant No.3) suddenly came from behind and caught hold of the left hand of Tek Chand (deceased). Balwan (appellant No.2) caught hold of him from his right hand. Banwari and Jagdish (since acquitted) together raised a ''lalkara'' that Tek Chand (deceased) should be taught a lesson of ''Sarpanchi,'' so that he does not become Sarpanch in the coming election. Rajpal @ Raju (appellant No.1) gave 2-3 blows with a knife to the brother of the complainant namely Tek Chand (deceased) in his chest. They raised an alarm and the accused left him (Tek Chand) and ran away. Tek Chand fell on the ground and became unconscious. The complainant-Chander Bhan, Dalbir (PW-9) and Bhoria Ram saw the said occurrence with their eyes. Then they arranged for a conveyance. Tek Chand elder brother of the complainant died after a little while. Leaving Dalbir (PW-9) and Bhoria Ram near the dead body, the complainant was going to the police station for lodging a report that the police party met him near Bharian School and he got his statement recorded. Banwari (since acquitted), Rajpal @ Raju (appellant No.1), Balwan (appellant No.2), Jagdish (since acquitted) and Vijay (appellant No.3) with their common intention had killed the brother of the complainant namely Tek Chand. Legal action was asked to be taken against them. The statement of the complainant was recorded and finding it to be correct, he (complainant) put his left thumb impression on the same which was attested by Jai Singh, SI/SHO, Police Station, Uklana (PW-11). The police proceedings were recorded by Jai Singh, SI/SHO, Police Station, Uklana (PW-11) to the effect that he along with Jagdeep Singh ASI, Ram Avtar Constable, Surender Constable in an official jeep, with the driver Ved Parkash were present near Bharian School in connection with chekcing, when the complainant-Chander Bhan met him and got his statement recorded. The statement after it was recorded was read over to the complainant word by word and he was made to understand it. On hearing the statement, he (complainant) admitted the same to be correct and put his thumb impression below it, which was attested by Jai Singh, SI/SHO, Police Station, Uklana (PW-11). From the statement that was made an offence punishable under Sections 148, 149 and 302 IPC was found to have have been committed. The writing was sent to the police station for registration of a case (FIR) through Constable Ram Avtar. Its number was asked to be intimated after registration. Jai Singh, SI/SHO, Police Station, Uklana (PW-11) along with his companions proceeded to the place of the incident for investigation. The complainant-Chander Bhan (PW- 8) was taken along with him. Special report was asked to be sent to the higher officials. The time and date of recording the statement is mentioned at 1.35 am on 22.02.2000 near Bharian School. On receipt of the above writing, a case (FIR) for the offences aforesaid was registered at the police station. Copy of the police file along with the original writing was sent to Jai Singh, SI/SHO, Police Station, Uklana (PW-11) through the constable who had brought it. Copies of the FIR were prepared which were being sent to the Illaqa Magistrate and the higher officers through Constable Kailash Chand No.182. Jai Singh, SI/SHO, Police Station, Uklana (PW-11) carried out investigation in the case. He went to the spot where the incident had occurred at about 2.00 am on 22.02.2000. Dalbir (PW-9) and Bhoria were present there. A rough site plan (Ex.P-29) of the place of incident was prepared at the spot. The blood stained earth was lifted from the spot and secured in a sealed parcel with monogram of JSY. The same was taken in possession vide memo Ex.P-25. A photographer was called and the spot was got photographed. The photographs Ex.P-18 to Ex.P-20 of the dead body were taken. Inquest report (Ex.P-4) was prepared. An application (Ex.P-3) was moved before the Medical Officer for conducting postmortem examination on the dead body of Tek Chand. The dead body of Tek Chand was sent to the Civil Hospital, Hisar to conduct autopsy. The dead body was sent through Constable Ram Avtar and Surender Singh. After postmortem examination, Constable Ram Avtar produced before Jai Singh, SI/SHO, Police Station, Uklana (PW-11) a sealed parcel containing the clothes of the deceased, which was taken in possession vide memo Ex. P-30. The same was attested by Ram Avtar Constable. On 22.02.2000, Jai Singh, SI/SHO, Police Station, Uklana (PW-11) along with other police officials went to the house of Banwari. Banwari and Jagdish (since acquitted) met him there and they were arrested in this case. On return to the police station, Jai Singh, SI/SHO, Police Station, Uklana (PW-11) deposited the parcel referred to above with the MHC of the police station. On 26.02.2000, Jai Singh, SI/SHO, Police Station, Uklana (PW-11) along with other police officials went to village Sahu. He joined Lakhmi Chand (PW-10) in the investigation. On receipt of secret information about the presence of Rajpal @ Raju (appellant No.1) at his house, he went there. Rajpal @ Raju (appellant No.1) was arrested and during interrogation he made a disclosure statement (Ex.P-26), which was reduced into writing. The disclosure statement was to the effect that he had concealed a knife beneath a ''Takhat'' (wooden platform) in a room of his house and the same could be got recovered. The disclosure statement was attested by the witness and Rajpal @ Raju (appellant No.1) thumb marked the same. In pursuance of the disclosure statement (Ex.P-26), Rajpal @ Raju (appellant No.1) led the police party and got recovered the knife (Ex.P-5) and its sketch (Ex.P-27) was prepared. The knife was put in a sealed parcel and taken in possession vide memo Ex.P-28. The memos were attested by the witnesses. A rough site plan (Ex.P-31) of the place of recovery was prepared. The sealed parcel and the knife were deposited with the MHC. On 06.03.2000, Balwan (appellant No.2) was arrested. The statements of formal witnesses were recorded and the police report in terms of Section 173 of the Code of Criminal Procedure (''Cr.P.C''-for short) was prepared on completition of the investigation on 02.05.2000. Thereafter, Vijay accused (appellant No.3) surrender before the Court on 15.06.2000 from where he was arrested by Ram Kumar, ASI. Supplementary police report (challan) qua the accused Vijay (appellant No.3) was prepared by Kailash Chand, Sub Inspector on 30.06.2000.
(3.) The learned Judicial Magistrate Ist Class, Hisar before whom the police report (challan) was filed in view of the offence punishable under Section 302 IPC being observed to be made out, which was exclusively triable by the Court of Session committed the case to the Court of learned Sessions Judge, Hisar vide order dated 12.08.2000.;