G. M. LODHA, J. - (1.) THIS is an appeal of the State against the acquittal of Jeeta Singh, who was tried by the Additional Sessions Judge, Gangapur City for offences under sections 302 and 397 IPC for the alleged murder of Ramniwas and dacoity at his residence.
(2.) THE prosecution story was that on 2nd August, 1971 at about 9 p. m. four accused including Jeetasingh came to the house of the complainant and demanded some flour. Two of the accused thereafter entered into the flour mill of the complainant and committed the murder of Ramniwas by a pistol. THE complainant Motiram, father of the deceased Ramniwas escaped though he was also fired at. THE accused then took two trunks and one attache containing some ornaments, cash and clothes of the complainant. However, after taking the valuable articles, the attache and the trunks were left near the village pond. The F. I. R. of the incident was lodged by Motiram father of Ramniwas and S. H. O. Rameshwarsingh registered a case on 3rd August, 1971 and commenced investigation. During the course of investigation, the police authorities got clue about Jeetasingh from two witnesses Tulchha and Mukhasingh and on getting full information about the address and whereabouts of the accused Jeeta Singh, the police went to apprehend him. The accused Jeetasingh was then arrested and according to the prosecution, recovery was made on his information of a chaddar, a pair of shoes and a pistol. Identification parade has held in which he was identified as one of the four accused persons who has participated in the dacoity and who had a pistol in his hand and who fired at Ramniwas. The commitment proceedings were taken by the Magistrate and then the Additional Sessions Judge tried the case after the accused had claimed trial and pleaded not guilty. The charges under sections 302 and 397 I. P. C. were framed against the accused. The accused denied the allegations and he examined three witnesses in his support. The case of the accused was that he was falsely implicated on account of enmity with the S. H. O. Balbirsingh P. W. 13. The learned Additional Sessions Judge has disbelieved the recovery of the Chaddar, pair of shoe and pistol and held that these recoveries have not been made from the accused. The learned Additional Sessions Judge has further held that the accused was arrested on 14th of August, 1971 and the identification parade was held on 23rd August, 1971 and during this period the possibility of the accused having been shown to the witnesses cannot be ruled out. The Additional Sessions Judge further held that the story put up by the prosecution that the accused was not arrested on 14th August, 1971 and he was arrested only on 21st August, 1971 is false and demolished by the defence evidence consisting of the A. S. I. Gurucharan Singh of police station Mukatsar and the Sarpanch of Luhanawali and wife of the accused, whose presence at the time of the arrest cannot be doubted.
(3.) HAVING disbelieved the entire evidence of recovery as well as identification, the Additional Sessions Judge acquitted the accused and while doing so further held that the investigation was very unfair in this case as the S. H. O. Balbir Singh himself was interested in falsely implicating the accused because there was some dispute between his brother and the in - laws of the accused, in respect of the agricultural land. Mr. Bhati, the learned Public Prosecutor has invited our attention to the evidence on record and he has submitted that so far as the test identification parade is concerned, there is no reason to disbelieve or discard it. According to Mr. Bhati the test identification parade was held after taking all precautions and by a Magistrate competent for holding the same. Mr. Bhati submitted that P. W. 1 Motiram, P. W. 2 Mala Singh, P. W. 6 Surat Singh, PW 8 Dungar Singh and PW. 9 Laduram are all trustworthy witnesses who have identified the accused in the test identification parade. It was argued that Motiram and Mala Singh are father and grandfather of the deceased Ramniwas who was killed by the accused and his party and they had earlier also seen the accused in the day time and, therefore, there was no reason to doubt their identification. Similarly it was pointed out that Suratsingh, Dungar Singh and Laduram have seen the accused in the day time before the incident of dacoity happened in the night and they have identified the accused in the rest identification parade. It was pointed out that in the statements during the trial, they have identified the accused and their testimony has not been shaken in the cross examination. Nothing has been shown to infer that they have falsely implicated or at any reason to falsely implicate the present accused. Mr. Bhati further submitted that so far as the question of enmity between the S. H. O. Balbirsingh and the in-laws of the accused on account of some dispute of land is concerned, the S. H. O. Balbirsingh came in picture much later on 2lst only and, therefore, it was the A. S. I. Rameshwarsingh who recorded the F. I. R. , started investigation and went to apprehend the arrest of accused and ultimately arrested him. Evidence of all these witnesses was read before us. Mr. Garg, learned counsel for the accused-respondent has vehemently opposed the contention of Mr. Bhati According to him the present one is a case where the police officers are guilty of fabricating evidence recovering the chaddar, shoe and pistol and concealing the arrest of the accused with the malafide motive to conceal that the accused remained in their custody for about a week during which time the witnesses were free to see the accused so that they could identify him in the identification parade. Mr. Garg then argued that in any way, as per the reasons which have been given by the Additional Sessions Judge and which are based on thorough discussion of the evidence and correct appreciation of all facts of this case, it cannot be said that the present case is one which should be interfered against the acquittal of the accused, ;