Farooq Hassan, J. - (1.) This appeal is directed against the judgment of learned Additional Sessions Judge, Jaipur District, Jaipur, dated 27-8-197 7 in Sessions case No. 208/74, whereby all the accused respondents have been acquitted of the offence under Section 302 I.P.C.
(2.) Briefly stated the prosecution case is that the accused respondents reside in Badh Khatipura, Tan Sanganer. Deceased Gopi Chand, who lived jointly with his father and brothers, resides in the same locality. It has been alleged that the relations between the accused respondents and the complainant party were strained and the proceedings under Sections 107/117 Cr. P.C. were going on between them at the relevant time. In the night between 23/24-6-1974, victims father Shri Devi Lal (P.W. 7) and brother Mohan Lal (P.W. 17) returned to their house at about 1.00 P.M. from the house of one Ram Sahai, where they had gone to attend some social function. P.W. 17 Mohan Lal was sleeping on the roof of the house, while P.W. 7 Devi Lal was sleeping on a cot outside the house & deceased Gopi Chand was sleeping on a cot in court-yard. While the aforesaid father & brothers were sleeping, in the mid-night they heard the voice of dog barking. Gopi Chand deceased got up and picked a torch (Art. 1) from his father Devi Lal and went out in the direction of dogs barking. Mohan Lal had a torch with him and flashed it from the roof. He saw some persons behind the Aak tree. He asked Gopi Chand deceased to go to that side to find out what was the matter. Gopi Chand deceased covered a distance of about 150 feet and climbed over the boundary wall of the field of one Kanhaiya Lal Kumawat. It has been further alleged that at the time when Gopi Chand deceased was standing on the boundary wall of the field accused Ram Narain, and Ganesh Narain appeared and they caught hold of deceased Gopi Chand. Accused Ganesh Narain and Kalu Ram (now dead) also came out of the trees. They were armed with lathis. Both the accused Govind Narain and Kalu Ram struck lathi blows to Gopi Chand. All the 4 accused persons then forcibly dragged Gopi Chand towards a dry well situated near the boundary wall of Shri Kanhaiyalal's field. It has been further alleged that Mohan Lal (P.W. 17) went towards the well to rescue his brother Gopi Chand. But before he could reach there, the accused persons the Gopi Chand in the well. All the accused persons made good their escape. Gopi Chand started raising cries from the well. On hearing the cries of the deceased, many a persons including Mohan Lal (P.W. 17). Devi Lal (P.W. 7) Munna (P W, 2), Babu Lal (P.W 3), Mst. Madan (P.W. 15), Kanhaiya (P.W. 5), Laxmi Narain (P.W. 5), Mst. Gauri (P.W. 6), Ram Gopal (P.W. 8) and Narain (P.W. 10) reached the well. All the persons requested Nanda (P.W. 2) to get down into the well to take out Gopi Chand. On this, Nanda (P W 2) got down into the well and Gopi Chand was taken out of it. There were multiple injuries on the body of Gopi Chand. It has been further alleged that Nanda P.W. 2 asked Gopi Chand as to what happened and Gopi Chand narrated the incident as aforesaid, while he was in the well. After being taken out from the well the aforesaid witnesses and other persons present also asked Gopi Chand about the incident and in turn, Gopi Chand again narrated the same story as stated above Gopi Chand was taken to the Government Dispensary in a bullock cart. Devi Lal, Mohan Lal and some other persons accompanied him. A three wheeler tempo was hired and Gopi Chand was placed in it. White going towards Sanganer in the Tempo, Kalyan (P.W 1) was also sitting in the same tempo by the side of Shri Gopi Chand and Kalyan asked Gopi Chand about the incident and in tempo, Gopi Cband narrated the same story as was narrated in the well and outside the well, Siiri Gopi Chand was taken to Government Dispensary Sanganer where the Incharge of the dispensary advised the companions of Gopi Chand to take Gopi Chand to S.M.S. Hospital for treatment and at that time at about 2.30 A.M. P.W. 17 Mohan Lal presented a written report of the incident at Police Station, Sanganer. A case under Section 307 I.P.C. was registered and the Police advised Mohan Lal (PW 17) to take the victim to the Govt. Dispensary, Sanganer. The complainant party again took Shri Gopi Chand to the Dispensary. The Police personnel were also accompanying the complainant party. It has been further alleged that P W. 4 Mohd Ali, A.S.I.. Sanganer Police Station recorded the Statement of Shri Gopi Chand at about 3.00 A.M., which is being subsequently treated as dying declaration and is marked as Ex.P.3. in the trial court. Dr. D. K. Joshi, Medical Officer-in-charge Sanganer Dispensary examined the injuries of Shri Gopi Chand. After preparing M.L.R. of the deceased the incharge of the Dispensary again advised the complainant party to take Gopi Chand to the S.M.S. Hospital and on his advise, Shri Gopi Chand was taken to the S.M.S. Hospital Jaipur, where he was admitted as in door patient at about 5.30 A.M. for his treatment but Shri Gopi Chand did not survive and expired at about 7.30 A.M. Dr. R.P. Gupta (P.W.13) conducted the auto pay at about 11.00 A.M. and it was opined that Shri Gopi Chand died due to extensive internal bleeding. An inquest report was also prepared by the Police and blood stained clothes of Gopi Chand were seized. The case was converted from Section 307 to Section 302 I.P.C. after the death of Gopi Chand. Accused were arrested on 24 6.1974. Inconsequence of the information furnished by accused Ganesh Narain and Kalu Ram while they were under arrest, 2 lathis were recovered on 24.6.74. The Police reached the place of occurrence and site plan (Ex P.5) was prepared on 24 6.74. Torch (Art. 1) was taken into possession from Mohan Lal (P.W. 17). After completing investigation police submitted a charge sheet against the accused respondents in the Court of Judicial Magistrate, No 1, Jaipur, who committed the accused in accordance with the provisions of Sec 209 Cr P.C.
(3.) Charge under Section 302 I.P.C was framed against the accused respondents, which was read over to them. The accused respondents pleaded not guilty and claimed trial. The prosecution in all examined 18 witnesses and filed some documents in support of its case. In defence, the accused-examined 4 witnesses and also filed some documents. Statements of the accused were recorded under Section 313 Cr. P C. by the learned Sessions Judge. Accused respondents denied the allegations levelled against them by the prosecution witnesses and they further claimed that the case against them was false. It was again stated by the accused persons that deceased Gopi Chand fell into the well accidentally in a pitch dark night. The well was to the surface level with no walls around. There was deep rooted enmity and hostility between the accused and the deceased family. The accidental death of the deceased was converted into a case of murder against the accused respondent.;