N.N.MATHUR,J. - (1.) THIS State appeal is directed against the judgment dated 10th September, 1980, passed by the learned Sessions Judge, Bikaner, in Sessions Case No. 42/1979, acquitting the accused respondents Dalip Singh Beniwal, Dalip Ram Kaler and Santosh Kumar Batad of the offence under Section 302, 325 read with 34 IPC.
(2.) THE prosecution case as set out during the trial is that the deceased Jagdev Singh and injured P.W. 6 Jagtar Singh and all the three accused respondents were the students of the ninth Semester of Medical College, Bikaner. All of them lived in the Tagore Hostel of the College except second respondent Dalip Ram Kaler, who was day scholar but he also used to visit and sometimes stay in the said hostel. P.W. 4 Balveer Singh was student of fifth Semester residing in another hostel. P.W. 5 Balvinder Singh, a resident student lived in Room No. 44 of the Tagore Hostel. About 6 -7 months prior to the date of incident, there was an election of the post of General Secretary of the Medical College for which Shri Vinay Beniwal was the candidate, who was not supported by Sikh students. This created an estrangement between the Jat and Sikh students. On 25.3.1979, there was some wrangle between the accused and their group on one side and the Sikh students on the other side at village Kolayat, where the students had gone for outing. Again on 21st April, 1979, P.W. 4 Balveer Singh and P.W. 5 Balvinder Singh had gone to see cinema in Minerva Talkies in matinee show, where at about 3 P.M., Balveer Singh was assaulted by Harendra Daiya, Ganpat Ram Kaler and Rajendra Karwasra, students of Medical College of the Jat group. The Sikh student reported the matter to the Hostel Warden and also to his senior students Jagtar Singh, P.W. 6, and deceased Jagdev Singh. It is alleged that at about 2 or 2.15 A.M. on the intervening night of 21st and 22nd April, 1979, the door of Room No. 51 of Tagore Hostel in which P.W. 6 Jagtar Singh resided, was knocked from outside. Jagtar Singh put on the light and opened the door and found Dalip Ram Kaler with a lathi, Santosh Bhatar with hockey stick and Dalip Singh Beniwal. They challenged him saying that if he wanted to talk to them with respect to the incident of cinema. On this, Jagtar Singh stated that he has reported the matter to warden, they may talk to him in the morning. Thereupon Santosh Batar gave a lathi blow which while warding off, was received on the right middle finger of the hand resulting into fracture. P.W. 6 Jagtar Singh rushed towards the outer gate of the hostel. On hearing the cries, deceased Jagdev Singh came out from Room No. 30 of the hostel. He rushed to save Jagtar Singh. Santosh Bhatar held Jagtar Singh outside the main gate and Dalip Singh Beniwal held Jagdev Singh. By then, P.W. 4 Balveer Singh and P.W. 5 Balvinder Singh also arrived. Accused Dalip Ram Kaler, while abusing, levelled a lathi blow at Jagdev Singh but it accidentally Tell on the head of accused Dalip Singh Beniwal. On account of this, deceased Jagdev Singh got released from the grip of Dalip Singh Beniwal. It is alleged that accused Dalip Singh Beniwal plunged knife in the back of Jagdev Singh. He started bleeding and was falling down. However, Balveer Singh and Balvinder Singh picked him up. P.W. 6 Jagtar Singh immediately rushed to the residence of P.W. 1 Dr. C.K. Joshi, the Warden of the Hostel. P.W. 5 Balvinder Singh tied the turban of P.W. 4 Balveer Singh on the wound of Jagdev Singh and tried to take him to the residence of Warden. Dr. C.K. Joshi, on hearing from Jagtar Singh, immediately tool out the jeep. At some distance from the gate of the Hostel, Jagdev Singh was gasping. He was put in the Jeep. Dr. Joshi drove the Jeep to hospital, at a distance of half a kilometer, Jagdev Singh was taken to the Casualty ward, where he was declared dead. P.W. 1 Dr. C.K. Joshi immediately informed the police of the incident, the entry of which was made in Rojnamcha vide Ex. P. 17. Accused Dalip Singh Beniwal also reached to the hospital. P.W. 6 Jagtar Singh seeing Dalip Beniwal, told P.W. 1 Dr. C.K. Joshi that Jagdev Singh was stabbed by him (Dalip Beniwal). The other eye witnesses viz; P.W. 4 Balveer Singh and P.W. 5 Balvinder Singh also stated that Jagdev Singh was stabbed by Dalip Beniwal. On receiving the telephonic message, the police arrived at the hospital and recorded the statement of P.W. 6 Jagtar Singh. On the basis of his statement (Ex. P. 13), the F.I.R. (Ex. P. 16) was prepared and registered at Police Station 'Police Sadar', Bikaner. Police prepared the inquest and proceeded with investigation. Accused Dalip Beniwal who got himself admitted in the Student Ward of the same hospital for his head injury, was arrested by the police at 3.30 AM vide Ex. P. 19. The police also recorded the statements of P.W. 4 Balveer Singh and P.W. 5 Balvinder Singh. The clothes of Balvinder Singh and Jagtar Singh were taken by the police as well as the turban of Balvinder Singh from the body of Jagdev Singh. The police also took the clothes of the deceased and accused Dalip Singh Beniwal. The autopsy of the dead body of deceased Jagdev Singh was conducted in the morning. which disclosed that his lung was punctured by the stab injury. The injuries of P.W. 6 Jagtar Singh and accused Dalip Singh Beniwal were also got medically examined and X -rayed. The clothes were sent for chemical examination. On serological examination, all the clothes were found stained with human blood. After usual investigation, the police laid chargesheet against the accused respondents for the offences under Sections 302, 302/34, 325 and 325/34 IPC.
(3.) THE accused respondents pleaded not guilty to the charges levelled against them and claimed trial. The prosecution in support of the case examined ten witnesses. P.W. 4 Balveer Singh P.W. 5 Balvinder Singh and P.W. 6 Jagtar Singh were examined as eye witnesses. P.W. 1 Dr. C.K. Joshi, the Warden of the Hostel, stated that on receiving the information of the incident from P.W. 6 Jagtar Singh, had taken the deceased Jagdev Singh to the hospital immediately. P.W. 2 Dr. S.K. Acharya conducted the post mortem on the body of the deceased Jagdev Singh. He also examined the accused Dalip Beniwal. P.W. 3 Dr. R.L. Vaidh radiologically examined the injuries of P.W. 6 Jagtar Singh and the accused Dalip Singh Beniwal. P.W. 9 Dharam Singh is the Investigating Officer. P.W. 7 Shankerlal, A.S.I., P.W. 8 Ranjeet Singh and P.W. 10 Rameshwar Lal are the formal witnesses. In his statement under Section 313 of the Code of Criminal Procedure, first accused respondent Dalip Singh Beniwal stated that he had gone to the Cinema in the night show and returned to the hostel gate at about 2 A.M. in a rickshaw. At that time, some students rushed towards him and one of them gave hockey blow on his head and he got admitted in the hospital. Accused Dalip Ram Kaler stated that he was a day scholar and at the time of the incident, he was at the house of his elder brother Shravan Ram in the locality known as 'Rajmata Ka Nohra'. The third accused respondent Santosh Kumar Batar also raised a plea of alibi saying that at the time of the incident, he was in the village Batranau in Sikar district far away from Bikaner. The learned trial Judge disbelieved the eye witnesses P.W. 4 Balveer Singh, P.W. 5 Balvinder Singh and P.W. 6 Jagtar Singh and acquitted all the accused respondents of the charges levelled against them for offences under Sections 302 and 325/34 IPC by impugned judgment dated 10.9.1980. The principal reasons for such disbelief, which can be gathered from the impugned order, are stated as under: i. The statement of P.W. 6 Jagtar Singh to the extent that he had alone gone to inform the Hostel Warden about the incident, is falsified when P.W. 1 Dr. C.K. Joshi, the Warden of the Hostel, stated that about twenty boys came to his residence to inform about the incident, which included Balveer Singh and Balvinder Singh. ii. The statements of all the three eye witnesses are falsified by the statement of P.W. 1 Dr. C.K. Joshi that there was none else except the three witnesses in the jeep. According to Dr. Joshi, there were about five to six students in the jeep. iii. From the Hostel of 22 rooms, no independent witness has been produced by the prosecution. The prosecution has examined only three Sikh eye witnesses inspite of the fact that there were large number of other non -sikh students. In view of the enmity between the two groups, it would have been proper to produce students of the community other than Sikh community. Prosecution is also guilty of not producing other students, who had gone to the house of Warden Dr. Joshi and some of them were in the Jeep, taking Jagdev Singh to Casualty Ward. iv. It is improbable that none of the occupants of Jeep would not have disclosed, the names of the assailants, while the deceased was taken in the jeep to the Hostel. It is also not probable that when he was taken from the stretcher to the Casualty Ward, the names of the assailants would not have been disclosed to the doctor and other staff, who attended the deceased. The omission to disclose the name of the assailant at the earliest suggests that the alleged eye witnesses were not aware as to who was the real assailant. v. P.W. 6 Jagtar Singh has stated that after Jagdev Singh was declared dead, he disclosed the names of the assailants. Thereafter, Dr. Joshi informed the police on telephone. If it was so, the names of the assailants would have found place in the telephonic message recorded by the police vide Ex. P. 17. Thus, Jagtar Singh has deliberately given false statement. vi. If the accused Dilip Singh Beniwal was the real assailant, it is contrary to the human conduct that instead of running away, he would have reached to the hospital immediately. vii. The prosecution has not unfolded as to how, weapon of offence viz knife came in the hand of accused and how disappeared. Knife has neither been recovered from accused, nor from the scene of occurrence or any other place. viii. There was no motive for the accused persons to kill Jagdev Singh as in the day at Minerva, the quarrel had taken place with Balveer Singh and Balvinder Singh. ix. There is no evidence to show presence of blood of deceased on the clothes of accused Dalip Beniwal. According to the prosecution, he plunged knife in the back of the deceased and then took out. In such event he must have carried the knife with him. If it is so, the Kurta must have come in contact with blood stained knife, leaving blood stains on the Kurta. The blood stains on Kurta is of 'A' group which is of the accused himself. He himself has sustained injury on the head. There is no evidence of blood of deceased on the clothes of accused Dalip Beniwal. This clearly exonerates the accused Dalip Beniwal of the charge of murder of Jagdev Singh by stabbing knife in his back. x. There was no enmity of the accused persons with Jagdev Singh. As per the prosecution case, they had gone to the room of P.W. 6 Jagtar Singh. Even if they wanted to kill Jagtar Singh, they had sufficient opportunity but they did not do so. This clearly shows that the accused persons did not go to the Tagore Hostel with an intention to commit murder. ;