JAIN, J. - (1.) FIR No. 111/2004 was registered at Police Station, Kotwali, Barmer under Section 302 of Indian Penal Code and after investigation, the charge -sheet was submitted in the trial court and Addl.Sessions Judge(Fast Track) camp Barmer had framed a charge under Section 302 of Indian Penal Code against accused Gaja Ram@ Gajendra Jat for causing murder of two persons, namely, Upendra Prasad and Ashok Prasad on 1.5.2004 at 10.30 p.m. at Marudhar Hotel, Barmer. The accused denied the charge and after conducting the trial, Additional Sessions Judge(Fast Track),Balotra camp Barmer in Sessions Case No. 124/2004 (old No. 55/2004) by its judgment dated 27.2.2007 had convicted the accused Gaja Ram@Gajiya@Gajendra under Section 302 of Indian Penal Code for causing murder of two persons as mentioned in the charge and he was sentenced to rigorous life imprisonment with a fine of rupees five thousand and in default of payment of fine, he was further ordered to undergo six months rigorous imprisonment. In this case, accused was arrested on 2.5.2004 and since then he is continuously in custody because his prayer for suspension of sentence was not accepted during the hearing of this appeal.
(2.) AGAINST the judgment dated 22.7.2007 passed by the trial court, the accused -appellant Gaja Ram has filed this appeal and it has been argued on his behalf that the case was not proved against him beyond reasonable doubt and still the trial court has convicted him on the basis of conjectures and surmises, though there was material improvement in the statements of the witnesses and the identification parade of accused was also not conducted as per law and procedure. It has also been argued that he was arrested from the room and his coloured photograph was also obtained from the room and by showing that coloured photograph, the witnesses were told to identify him under the wrong impression that he has committed murder of two persons, though he was not involved in the offences at all. Similarly, it has also been argued that the recovery of a push button knife at the instance of the accused -appellant was not proved but still on the basis of alleged recovery of blood stained knife and blood stained clothes, the accused -appellant has been found guilty under Section 302 of Indian Penal Code and, in the alternative, it has also been argued that since the accused -appellant was not proved to have any previous enmity with the deceased persons and he is in jail since the date of his arrest, so it has been prayed that he should be released on undergone sentence after converting his conviction under Section 304 Part I of Indian Penal Code. On the other hand, the learned Public Prosecutor has strongly opposed the prayer of accused -appellant. It has been argued by him that clear cut statements of eye -witnesses PW -24 Raj Kumar Mahto and PW -25 Suresh Mahto cannot be ignored, who have fully supported the prosecution case. It has also been argued that soonafter the judgment was pronounced by the trial court, the Presiding Officer was attacked upon the dais itself by a sharp edged stone by the accused - appellant , though no injury could have been caused to the Presiding Officer because of his alertness and the accused -appellant was convicted for the contempt of the Court on 27.2.2007 by the trial court itself in separate proceedings. This fact was mentioned by the Presiding Officer of the trial court in the impugned judgment itself at page 33 and 34. It has also been argued by the learned Public Prosecutor that the statement of PW -24 had to be kept reserved on 24.3.2005 at the request of the defence counsel on some lame excuse and then his cross -examination could have been completed only after one year,viz., on 17.4.2006 and still the witness could not be won over by the accused.
(3.) IN the aforesaid background, it can be said that even if some of the prosecution witnesses have turned hostile in the case, it will not materially affect the result of the case because the star witnesses, PW -24 Raj Kumar Mahto and PW -25 Suresh Mahto have fully proved the prosecution story and on their statements alone, the accused - appellant appears to be guilty of causing murder of two persons during ordinary scuffle regarding supply of food in a hotel on priority basis. There was no previous enmity of both the deceased persons with the accused -appellant but still both of them were brutally and repeatedly stabbed by a push button knife which the accused - appellant was carrying in his pocket.;