SUNIL KUMAR GARG, J. - (1.) This appeal has been filed by the accused appellant against the judgment and order dated 28-7-2000 passed by the learned Special Judge, SC/ST Cases, Pali in Sessions Case No.25/97 by which the learned Special Judge while acquitting the accused appellant for the offence under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the SC/ST Act") and for the offence under Section 27 of the Arms Act, convicted the accused appellant for the offence under Sections 302, 341, IPC and 4 read with Section 25(1-B)(b) of the Arms Act and sentenced in the following manner :- Name of accused appellant Convicted Under section Sentence awarded Kalu Singh 302, IPC Life Imprisonment and fine of Rs. 500.00, in default of payment of fine, to further undergo one month SI. 341, IPC One month SI. 4 read with Section 25(1-B)(b) of Arms Act Three years' SI and fine of Rs. 100.00, in default of payment of fine, to further undergo 15 days SI.
(2.) It may be stated that by the same judgment and order, the learned Special Judge acquitted other two co-accused, namely, Devi Singh and Jabar Singh for the offence under Sections 302/34, 341, IPC and 3(2)(5) of the SC/ST Act and 27 of the Arms Act after giving benefit of doubt to them.
(3.) The facts giving rise to this appeal, in short, are as follows :- On 23-2-1997 at about 7.15 p.m. PW25 Rakesh Puri, SHO Police Station Kotwali, Pali received a cryptic telephonic message from unknown person to the effect that near the puliya of Ramdeo Road, Pali Kalu Singh (present accused appellant), Devi Singh and Jabar Singh (other accused who have been acquitted by the learned Special Judge), who are brothers, had caused grievous injuries to one Taxi Driver Ramesh (hereinafter referred to as "the deceased") by swords and when PW25 Rakesh Puri asked as to who gave that information, that person put the receiver off. PW25 Rakesh Puri reduced that information in Rojnamcha (Ex.P/39A) and thereafter, he along with Madanlal, ASI, Bhop Singh, ASI (PW13), Amar Singh, ASI (PW23) and other police officials proceeded towards the site in a Government Jeep and on the site, Narain Singh and Jogaram, who were at that time Constable in the Dhanmandi Chowki, were already there and on being asked, they informed PW25 Rakesh Puri that the deceased had been taken to Bangar Hospital, Pali and thereafter, PW25 Rakesh Puri reached Bangar Hospital (Troma Ward) where he found Bhojraj Singh, ASI (PW12), who informed him that the deceased had died. PW12 Bhojraj Singh further informed PW25 Rakesh Puri that before the deceased succumbed to his injuries, he mentioned the names of assailants and they were Kalu Singh (present accused appellant), Devi Singh and Jabar Singh. PW12 Bhojraj Singh further informed PW25 Rakesh Puri that when he started to record the statement of the deceased, he died and the name of the assailants disclosed by the deceased were written in the dairy ex.P/20 by Constable Pratap Singh (PW20). The further case of the prosecution is that on 23-2-1997 at about 8.15 p.m., PW4 Rupa Ram gave a written report Ex.P/13 to PW25 Rakesh Puri in the Bangar Hospital, Pali stating inter alia that on 23-2-1997 in the evening at about 7.00 p.m., he along with deceased and PW27 Mithu Singh, after sitting in a three wheeler Taxi, reached near Ramedeo road where Kalu Singh (present accused-appellant), Devi Singh and Jabar Singh, who are brothers, came in front of Taxi and they managed to stop the Taxi and thereafter, they, after caught holding the hands of the deceased, got him down from the Taxi and all the three accused persons were armed with naked swords and they all gave sword blows on the person of the deceased. It was further stated in the report Ex.P/13 by PW4 Rupa Ram that he and PW7 Mithu Singh tried to save deceased, but they tried to attack them also and on hearing their cries, PW6 Devi Das and PW21 Mangla Ram also reached on the spot and they had also witnessed the occurrence. It was further stated in the report Ex.P/13 that all the above three accused persons had enmity with the deceased. It was further stated in the report Ex.P/13 that thereafter, deceased was taken to Bangar Hospital where he was admitted and where Bhojraj Singh (PW12), ASI of Bangar Chowki came and simultaneously, Praveen Mehta and Rajat Vyas (PW18) also came there and when PW12 Bhojraj Singh asked about the incident from the deceased, then the deceased told him that Kalu Singh (present accused appellant), Devi Singh and Jabar Singh had caused injuries to him by swords and as soon as PW12 Bhojraj Singh took the papers in hand for recording the statement of deceased, he succumbed to his injuries. Thereafter, the said report Ex.P/13 was sent by PW25 Rakesh Puri to the Police Station Kotwali, Pali through PW23 Amar Singh, where a regular FIR Ex.P/14 was chalked out and investigation was started. During investigation, the post mortem of the dead body of the deceased was got conducted through Medical Board and the post mortem report is Ex. P/28 where it was opined by the Medical Board that the cause of death of the deceased was haemorrhagic shock due to injuries to spleen (vital organ). The further case of the prosecution is that PW25 Rakesh Puri received a secret information from mukhbir to the effect that the accused appellant had gone towards Agrasen Bhawan having a blood stained sword in his hand and upon this, he along with PW13 Bhop Singh, ASI reached Agrasen Bhawan where they saw accused appellant Kalu Singh and at that time, he was having a sword in his hand and seeing them, the accused appellant tried to run away, but he was caught-hold by them and the sword, which was in the hand of the accused appellant, was taken by PW25 Rakesh Puri in his possession and thereafter, PW25 Rakesh Puri reached Bangar Hospital Chowki where he produced that sword and accused-appellant before Ashok Kumar Gupta, PW24, who was at that time CO, Pali and thereafter, the fard of seizure of sword Ex. P/2 was got prepared by PW24 Ashok Kumar Gupta in presence of PW1 Roshan Singh and PW2 Shyam Lal and at that time, the sword was stained with blood. The accused-appellant was arrested through arrest memo Ex.P/1. The blood stained clothes of the accused-appellant were also seized by the Police through Ex.P/3. The site plan is Ex.P/10. The FSL report is Ex.P/43. After usual investigation, police submitted challan against the accused appellant Kalu Singh and two other accused persons, namely, Devi Singh and Jabar Singh in the Court of Chief Judicial Magistrate, Pali and from where the case was committed to the Court of Special Judge, SC/ST Cases, Pali. On 24-7-1997, the learned Special Judge, SC/ST Cases, Pali framed charges for the offence under Sections 302/34, 341, IPC, 3(2)(5) of SC/ST Act and 27 of Arms Act against the present accused-appellant Kalu Singh and other two accused persons namely, Jabar Singh and Devi Singh. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During the course of trial, as many as 26 witnesses were examined by the prosecution and many documents were got exhibited. Thereafter, statements of the accused persons under Section 313, Cr.P.C. were recorded. The accused persons did not lead any evidence in defence, but got exhibited some documents in their defence. After conclusion of trial, the learned Special Judge, SC/ST Cases, Pali through his judgment and order dated 28-7-2000 acquitted the co-accused Devi Singh and Jabar Singh of all the charges framed against them and also acquitted the present accused-appellant of the charges for the offence under Sections 3(2)(5) of the SC/ST Act and 27 of the Arms Act, but convicted the accused-appellant for the offence under Sections 302, 341, IPC and 4 read with Section 25(1-B)(b) of the Arms Act and sentenced in the manner as stated above holding inter alia :- (i) That Ex. P/39A Rojnamcha, which was prepared by PW25 Rakesh Puri on the information given to him on telephone by unknown person is not the first information report in the present case and the first information report is Ex.P/13, which was lodged by PW4 Rupa Ram. (ii) That the scribe of first information report Ex.P/13 was Surendra Nihalani and non-production of him would not affect the case of the prosecution. (iii) That if some of the statements of the witnesses were recorded after one or two days of the incident, it would not affect the case of the prosecution. (iv) That the Investigation Officer PW24 Ashok Kumar Gupta tried to record the statements of those independent witnesses, who were present at the time of occurrence, but none came forward and therefore, it cannot be said that PW24 Ashok Kumar Gupta did not try to record the statements of independent witnesses. (v) That no doubt PW19 Dr. K. N. Mathur had not opined that the injuries, which were received by the deceased, were caused by sword, but looking to the injuries received by the deceased, it can easily be said that such types of injuries could be caused by sword. Therefore, if the sword was not shown to Dr. K. N. Mathur, PW19, it would not affect the case of the prosecution. (vi) That the accused-appellant and other accused persons had enmity with the deceased and because of that enmity, deceased was murdered. (vii) That the case of the prosecution that the deceased before succumbed to his injuries gave oral dying declaration to PW12 Bhojraj Singh in the hospital was disbelieved by the learned Special Judge. (viii) That the incident took place at the place mentioned in the site plan Ex.P/10 near crossing. (ix) That the statements of two eye-witnesses, namely, PW6 Devi Das and PW21 Mangla Ram were disbelieved by the learned Special Judge. (x) That the statement of PW7 Mithu Singh, another eye-witness, was also disbelieved by the learned Special Judge on the point that in his earlier statement and in cross-examination, he supported the case of the prosecution, but later on, in his further cross-examination, which had taken place on, 5-2-1999, he retracted to his earlier version. (xi) That from the statement of PW4 Rupa Ram, another eye-witness and who lodged the report Ex.P/13, the learned Special Judge came to the conclusion that no doubt even though he has been declared hostile so far as the involvement of other co-accused persons, namely, Devi Singh and Jasbar Singh is concerned, but so far his statement involving the accused-appellant Kalu Singh is concerned, that portion of his statement was found reliable by the learned Special Judge and on the basis of that statement, he convicted the accused appellant Kalu Singh under Section 302, IPC for the murder of deceased. (xii) That the injuries, which were received by the deceased, were sufficient in the ordinary course of nature to cause death. (xiii) That death of the deceased was homicidal and was caused by the accused-appellant Kalu Singh by sword. Aggrieved from the said judgment and order dated 28-7-2000 passed by the learned Special Judge, SC/ST Cases, Pali, the present appeal has been filed by the accused-appellant.;