SHARMA, J. - (1.) APPELLANT Ajay Singh and Sanjay Singh were indicted before the learned Special Judge (Prevention of Sati) and Additional Sessions Judge in Sessions Case No. 3/95. They were found guilty, convicted and sentenced vide judgment dated July 26, 1995 as under:- Ajar Singh : U/s. 302 IPC to undergo imprisonment for life and fine of Rs. 500/-, in default to further undergo sentence of two months RI. Sanjay Singh : U/s. 302/34 IPC to undergo imprisonment for life and fine of Rs. 500/-, in default to further undergo sentence of two months RI.
(2.) AGAINST this judgment of conviction that the appellants have preferred instant criminal appeal. It is the prosecution case that on March 9, 1992 Gurucharan Singh (PW2) submitted a written report (Ex. P1) with the Police Station Ramganj, Jaipur around 6. 00 P. M. stating therein that at 4. 00 P. M. when he reached at the chowk near the house of Billu, he found Ajay Singh and Billu @ Kulwant Singh quarreling. Billu was demanding money from Ajay and in turn Ajay was abusing him. In the meanwhile Sanjay, younger brother of Ajay, came rushing over there and they started beating Billu with fists and legs. Informant Gurucharan Singh and Sharad Saxena made an attempt to intervene but failed. Ajay then went inside his house and came out with a knife in his hand. At the same time Sanjay caught hold of Billu and Ajay inflicted knife blow on the abdomen of Billu. Both Ajay and Sanjay thereafter fled away. Billu was taken to the hospital, where he was declared dead. Police Station Ramganj, Jaipur registered a case u/s 302/34 IPC and investigation commenced. Site was inspected, inquest report was drawn and statements of witnesses u/s 161 Cr. P. C. were recorded. Appellants were arrested. The information supplied by the appellant Ajay Singh was recorded and at his instance knife was recovered. Relevant seizure memos were drawn. Post mortem of dead body of Billu @ Kulwant was conducted and on completion of investigation, the Investigation Officer filed charge sheet. In due course, the case came up for trial before the learned trial Judge. Charge u/s 302 IPC was framed against appellant Ajay Singh, whereas Sanjay Singh was charged u/s 302/34 of the IPC. The appellants denied the charges and claimed trial. The prosecution examined as many as 13 witnesses. Thereafter, the statements of appellants u/s 313 Cr. P. C. were recorded. As many as four witnesses were recorded in defence. On hearing final submission, the learned trial Judge conviction the appellants as indicated hereinabove. Mr. A. K. Gupta learned counsel appearing for the appellants canvassed that the occurrence had taken place at the shop belonging to the appellants and genesis of the incident appears to have been concealed by the prosecution. It is urged by the learned counsel that appellant Ajay Singh also received three injuries on his person and the said injuries were not explained by the prosecution. It is also contended that from the material available on record, the intention of the appellants in committing the crime has not been established. The star witness Gurucharan Singh (PW 2) and Sheela (PW 3) are merely chance witnesses and their presence at the place of occurrence is not natural. They made material embellishments in their testimony and no reliance can be placed on their evidence. Sheela is the mother of deceased Billu and at the time of occurrence she was residing at the third floor of the house and it is the prosecution case that on hearing hue and cry, she came to the spot. Under these circumstances, she could not have been in a position to see the actual occurrence. The theory of oral dying declaration introduced by the prosecution has no leg to stand. Gurucharan Singh and Sheela are not truthful witnesses and their testimony should be outrightly rejected. It is alternatively submitted that even if the injury on the person of Billu is attributed to appellant-Ajay Singh then also the case does not travel beyond Section 304 Part-II of the IPC. Learned counsel placed reliance on K. Ramakrishnan Unnithan vs. State of Kerala (1 ). In regard to allegations against the appellant Sanjay Singh, learned counsel cited Ramshish Yadav vs. State of Bihar (2) and Ajay Sharma vs. State of Rajasthan Per contra, Mr. R. P. Meena, learned Public Prosecutor supported the impugned judgment and urged that both the appellants have rightly been convicted by the learned trial Judge. The presence of Gurucharan Singh and Sheela at the place of occurrence is quite natural. The case of appellant Ajay Singh is not covered in any of the exception appended to Sec. 300 of IPC and in view of Clause thirdly of Sec. 300 IPC the appellant Ajay Singh is guilty of murder. In regard to appellant Sanjay Singh, learned PP contended that after seeing Ajay with a knife, he caught hold of Billu and thus shared common intention in committing the crime. Under these circumstances, he was rightly convicted with the aid of Sec. 34 IPC.
(3.) WE have given our anxious thought to the rival submissions advanced before us and carefully scanned the material on record. The prosecution examined two star witnesses in support of its case namely Gurucharan Singh (PW2) and Sheela (PW3 ). Their statements have been supported by the testimony of Sheela Jain (PW12) and Satya Bhan Singh I. O. (PW13 ). Sharad Saxena (PW11) and Narain Dass (PW8) have also been examined as eye witnesses but they did not support the prosecution case and were declared hostile. A look at the testimony of Smt. Sheela (PW3) demonstrates that she reached at the spot just after the incident was over. She had seen her son Kulwant in a serious condition who narrated the incident to her and this alleged oral narrated the incident to her and this alleged oral narration of the deceased to her was treated as dying declaration by the learned trial Judge. She also deposed that she has seen accused Ajay Singh with blood stained knife in his hand. Gurucharan Singh (PW 2) in his deposition categorically stated that Ajay Singh inflicted Knife blow on the abdomen of Kulwant Singh. The statement of Gurucharan Singh finds support from the testimony of Dr. Sheetal Jain, who conducted the autopsy and exhibited post mortem report as Ex. P16. The knife was recovered at the instance of Ajay Singh, which was found smeared with blood of `o' Group. Underwear of the deceased was smeared with blood of `o' Group, which is evident from the FSL Report (Ex. P19 ). It has also been established from the evidence that appellant Sanjay Singh caught hold of the deceased. ;