N.N.MATHUR,J. - (1.) THIS appeal is directed against the judgment dated 2.12.1996 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Jodhpur in Sessions Case No. 12/96 convicting the accused appellant of offence under Section 302 I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. 500/ -, indefault of payment to further undergo three months R.I. He has also been convicted of offence under Section 324 I.P.C. and sentenced to imprisonment for two years and to pay fine of Rs. 500/ -, in default of payment to further undergo 3 months R.I. Both the sentences have been ordered to run concurrently.
(2.) THE prosecution case briefly stated is as follows: On 26th November. 1995 PW/14 Shaitan Singh A.S.I. Mahamandir, Jodhpur on receiving a telephonic information reached at M.G. Hospital, Jodhpur. On enquiry PW/5 Kishan Lal stated that at about 8.45 P.M., while he was at his residence, some children came running to his house from the 'Garbha' and informed that the accused Bablu, Ayub and Rajesh Harijan have attacked on Raju @ Gungia by Knife. On receiving this information, he rushed to the 'Gangabai' temple. He found some blood spread on the spot. Raju was removed and taken to the hospital. He rushed to the M.G. Hospital and found Raju seriously wounded by knife. Another person present in the hospital and standing nearby namely Abdul Vahid also disclosed that when the deceased Raju was proceeding from Nagori Gate Circle towards 'Gangabai' temple, the accused Bablu Bharti, Ayub and Rajesh came from the side of Lakhara Bazar and made him to stop. Ayub and Rajesh caught the deceased Raju and Bablu stabbed knife. He also stated that the incident was witnessed by PW/1 Mohammad Sabir and PW/12 Ram Lal. On the basis of the statement of PW/5 Kishan Lal Ex. P/4, Police registered F.I.R. for offence under Sections 307, 324 and 341/34 I.P.C. and proceeded with investigation. Raju died on 27.9.1995 at about 8 A.M. and, therefore, a offence under Section 302 I.P.C. was also added. After usual investigation, police laid chargesheet against the accused appellant Parikshit Bharti and three others namely; Jai Kishan, Raju and Rajesh. The accused persons pleaded not guilty and claimed trial. The prosecution in support of the case examined 27 witnesses and produced certain documents. The accused persons in the statement under Section 313 Cr. P.C. stated that all the evidence appearing against them is false. Six witnesses were examined in defence. The trial court acquitted the accused Jai Kishan, Rajesh and Raju of all the charges levelled against them. However, the trial court found the case against the accused appellant proved and as such, convicted and sentenced him as noticed above.
(3.) ASSAILING the conviction, Mr. Sandeep Mehta, learned Counsel appearing for the appellant Parikshit Bharti @ Bablu contended that the trial court has committed an error in convicting the appellant solely on the testimony of PW/2 Abdul Wahid. It is submitted that the statement of PW/2 Abdul Wahid stands contradicted on material particulars by the statement of PW/5 Kishan Lal particularly about the time of incident, which excludes his presence on the spot at the time of incident. Elaborating the contention, it is submitted that PW/5 Kishan Lal has categorically stated that at about 8.45 P.M. he was informed by some of the children about the incident. Thus according to him, the incident took place prior to 8.45 P.M. whereas Abdul Wahid has stated that the incident took place when they were returning after seeing the 'Garbha' dance. In the cross -examination he admitted that 'Garbha' dance was witnessed by him. Thus, it is asserted that this witness has not seen the occurrence which took place prior to at 8.45 P.M. As per the version given by the PW/2 Abdul Vahid, he went to the police station alongwith the deceased Raju but this fact does not find place in the police record. It is also contended that though, it is admitted by the prosecution that when the deceased Raju was taken to the police station, immediately an entry was also made in the 'Rojnamcha' but, the same has not been produced. It given rise to suspicion that F.I.R. has been substituted. It is also contended that learned Judge has adopted double standard in analysing the evidence of P.W./2 Abdul Wahid, in as much that his testimony has been disbelieved as against accused Jaikishan, but he been believed as against the appellant. On the other hand learned Public Prosecutor has supported the judgment of the trial court.;