SINGH, J. - (1.) THIS appeal has been filed u/sec. 374 (2) Cr. P. C. by accused appellant Vishal Singh against the judgment dated 25. 10. 1997 passed by learned Special Judge, SC/st Act Cases, Jodhpur in Sessions case No. 11/97 by which he has been convicted u/sec. 302 IPC and sentenced to life imprisonment with a fine of Rs. 5,000/- and in default to further undergo two years' simple imprisonment. He has also been convicted under Sec. 341 IPC and sentenced to one month's simple imprisonment with a fine of Rs. 100/- and in default to further undergo seven days' simple imprisonment. Both the sentences were ordered to run concurrently.
(2.) THE prosecution story as unfolded in the trial court is that at 8. 00 P. M. on 5. 12. 1996 in the city of Jodhpur PW6 Mukesh with his uncle PW 7 Chetan Prakash as also his father Kaluram (since deceased) went to Railway Stadium on bicycles to bring waste meals discarded by the marriage party for their pigs. At about 10. 15 P. M. they were coming back from the Railway Stadium alongwith two cycles and the waste meals near S. P. S. School. By the side of the road five persons were standing with a scooter and a Hero Puch. THEy stopped the complainant party and asked wherefrom they are coming and called them thieves and wanted to take their personal search. When Kaluram (since deceased) as also PW 7 Chetan Prakash refused to give their personal search Vishal Singh, accused appellant herein, took out a knife from his pocket and inflicted the fatal blow on the chest of Kaluram. Co-accused Manoj Kumar (acquitted by the trial Court) inflicted a stone blow on the head of Kaluram. THE remaining three persons started beating by fists. When PW-6 Mukesh and PW-7 Chetan Prakash intervened, all the assailants made good their escape. After walking few steps Kaluram became unconscious and fell down. Thereafter injured Kaluram was taken to Railway Hospital through a taxi from where he was referred to Mahatma Gandhi Hospital for treatment where Kaluram passed away at 1. 30 A. M. At the hospital itself PW-6 Mukesh at 2. 15 A. M. gave a parcha bayan Ex. P/7 to PW 3 Girija Shankar, S. I. who sent the same to police station Sardarpura where FIR Ex. P/24 was recorded at 2. 30 A. M. Immediately thereafter all the five accused persons were put under arrest. Knife Art. 1 was recovered on the voluntary disclosure statement given by Vishal Singh accused appellant which was seized, sealed and sent to the FSL where it was found stained with human blood. After usual investigation five persons were challaned and charged in the trial court for offence under Secs. 147, 323, 341, 302, 302/149 IPC as also u/sec. 3 (2) (5) of SC/st Act. Upon pleading not guilty and claiming trial prosecution examined 17 witnesses and exhibited 33 documents. In statements given under Sec. 313 Cr. P. C. accused persons denied all the averments appearing against them and pleaded false implication and alibi. In defence DW-1 Nishant Gaur was examined and photos Ex. D/3 and D/4 were exhibited. Therefore the learned trial court after threadbare discussion of evidence available on record acquitted Manoj Kumar from all the offences. Shaitan Singh, Suchi Singh and Narendra Singh were convicted u/secs. 323, 341 and were released on probation. However, Vishal Singh accused appellant was convicted and sentenced as stated above. Learned counsel for the appellant has raised manifold contentions to bring home that the accused appellant has been falsely implicated. He was not known to the prosecution witnesses nor was there any intention to cause murder and that at the time and date of occurrence he was attending a marriage party of Ramesh Gaur where photographs Ex. D/3 and D/4 were snapped. That there were significant improvements and contradictions in the prosecution evidence. Lastly it was submitted that there was only single injury and that too in a sudden quarrel and sudden fight and without premeditation, therefore, at the most the offence may fall u/sec. 304 Part-II IPC. On the contrary learned Public Prosecutor has supported the impugned judgment and conviction.
(3.) WE have carefully considered the rival contentions. So far as plea of alibi is concerned, no such suggestion was put to PW-6 Mukesh who was an eye witness and son of deceased though he has been put to lengthy cross examination. However, PW- 7 Chetan Prakash has denied a suggestion that accused Vishal Singh alongwith Shaitan Singh were attending the marriage of Ramesh from 8:00 P. M. to 11:00 P. M. This witness has also been shown photographs Ex. D/3 and D/4 in which at mark "x" Vishal Singh has been identified by him. In defence also DW-1 Nishant Gaur was examined to prove that on 5. 12. 1996 Aashirwad Samaroh of his elder brother Ramesh was celebrated from 8:00 P. M. onwards in which Vishal Singh and Shaitan Singh were invited. The invitation card Ex. D/5 was also exhibited and photos Ex. D/3 and D/4 were also allegedly snapped in which Vishal Singh is also seen enjoying buffet. It is an admitted fact that so called Aashirwad Samaroh was also not far off from the place of occurrence and the photos so exhibited does not indicate that Vishal Singh was present at the Aashirwad Samaroh right from 8:00 P. M. to 11:00 P. M. It is just possible that after attending the Aashirwad Samaroh accused appellant alongwith his friends may be coming back and at that time have committed this crime. Be that as it may, the plea of alibi has rightly been discarded by the trial court which we also uphold. Learned counsel for the appellant contended that when injured Kaluram was admitted in Railway Hospital and from there he was shifted to Mahatma Gandhi Hospital and his treatment continued till 1. 30 A. M. and one police person was also available in the hospital, why the parcha bayan Ex. P/7 was not lodged immediately after the occurrence. Had the identity of the assailants known to PW-6 Mukesh or PW-7 Chetan Prakash the FIR could have been lodged immediately after the occurrence. It seems that the names of the assailants were not known, therefore, lodging of the FIR was delayed. We have carefully considered this aspect of the matter also. ;