INDER SEN ISRANI, J. - (1.) THIS is an appeal under Section 374(2) Cr. PC against the judgment and order dated 17th September, 1985 of the learned Sessions Judge, Jaipur District, Jaipur whereby the appellant was convicted under Section 302 IPC and sentenced to imprisonment for life with a fine of Rs. 100/ -, in default of payment of fine to further undergo one month, rigorous imprisonment.
(2.) AN FIR was lodged on 13 -5 -1984 by Ashok Kumar s/o Banshi deceased, Resident of Bhenslana at Police station Rainwal at 9.30 pm. It has been stated that on 13 -5 -1984 at about 3.00 p.m., complainant's father was sitting at the shop of Gulab Chand Kumawat and he was also standing there. Accused Amara Jat was talking to Gopu at the shop of Bodu. At that time, at the shop of Gulab, apart from the complainant, his father, Kana Ram Kumawat, Ganga Ram, Raj Singh and Bhagwan Sahai were also sitting. At that time accused Amara Ram came all of a sudden with a stick in his hand and struck 4 blows by stick on the head of Banshi, due to which Banshi fell down. Thereafter Amara Ram gave stick blows on the feet of Banshi. When the complainant asked Amara Ram not to beat his father, Amara Ram leaving his father ran towards complainant and beat him. Thereafter, the complainant ran away from there towards the Station from where he was seeing the whole incident. Raj Singh shouted that Banshi should be taken to the hospital. Thereupon Amara Ram gave lathi blows to Raj Singh also. Afterwards the complainant's uncle Hanuman and his father came on the spot and took injured Banshi to Bhenslena Hospital. The doctor advised them to take him to Jaipur. They started from Benslana to Rainwal for taking injured Banshi to Jaipur and put him in a Tonga and brought him to the Bus -stand, but between 9 and 9.50 injured Banshi died. He then took the dead body of his father Banshi to the Police Station. There -upon, a case under Section 302 IPC was registered and investigation commenced. The post -mortem of the dead body was conducted. Injured Raj Singh was also medically examined. Site -plan of the place of occurrence was prepared and accused Amara Ram was arrested by the police. A stick was recovered at the instance of the accused. After investigation a challan was filed in the court of Chief Judicial Magistrate, Sambhar Lake, who committed the accused to the court of Sessions for trial on 27 -6 -1984. After hearing arguments of learned counsel for the accused and the learned Public Prosecutor on 8 -8 -1984 the accused was charged with the offence under Section 302 IPC. The accused denied having committed any offence and claimed to be tried. On behalf of the prosecution, as many as 13 witnesses were examined and documents Ex. P 1 to Ex. P. 19 were exhibited. The accused was examined Under Section 313 Cr. PC. He stated that the prosecution witnesses have given false statements against him and he claimed that he was not present at the relevant time at the where the incident took place and that he had enmity with Bodu, Raj Singh and Bhagwan Sahai and as such they have falsely implicated him in this offence. Accused examined as -many as 8 witnesses in his defence and also produced documents Ex. D 1 to D 6 on his behalf. After hearing both the sides, the learned Sessions Judge, Jaipur, District Jaipur found the accused to have committed offence under Section 302 IPC and convicted and sentenced him as indicated above. Learned counsel for the accused has argued that when the incident took place at about 3.00 p.m., there was no reason to have filed the FIR as late as 9.30 pm even though when injured Banshi was taken to Bhenslana, the Police Station Rainwal was on the way, but still no FIR was lodged deliberately at that time. He therefore argued that the FIR is not a correct version of the incident and is an after -thought, in Which accused has been falsely implicated. According to the learned counsel for the appellant the incident took place out side the shop of Bodu which is nearby the shop of that of Gulabchand. In the FIR no reason is shown why accused Amararam came all of a sudden and started beating deceased Banshi with lathi blows. He stresses that in fact it is evident from the statement of Bhagwan Sahai recorded under Section 161 Cr. PC (Ex. D. 1) in which he has stated that Bodu had got the stones of Banshi removed, on account of which there was exchange of abuses between them and there was a quarrel. Due to this quarrel accused Amararam struck lathi blows on the head of Banshi. Amararam is the nephew of Bodu. Bhagwan Sahai (PW 6) in his statement in cross -examination has stated that accused after beating Banshi in side the shop, ran away. He has denied that there was any fight between deceased Banshi, Ram Singh and Amararam and all the 3 received injuries on account of this quarrel. He has stated that there was no quarrel between Amararam and Banshi on that day. After 10 minutes of the incident, injured Banshi was taken to the hospital. He has admitted that while going to Rainwal, on the way the Police Station comes first and thereafter the hospital. Jagdish Kumar (PW 7) in his statement recorded under Section 161 Cr. PC (Ex.D ) has stated that Amararam lives with Bodu and also works there. He has also stated that 5 -6 days earlier than the day of occurrence, Banshi came to Bodu and asked him why he had got his stones removed and there was exchange of hot words and there was a quarrel between them on this account. At that time Amararam was also present there. On account of this there was a quarrel again and there was exchange of hot words and thereupon, Amararam gave beating to Banshi. In his statement, this witness has stated that on 13 -5 -1984 at about 2.30 p.m. while he was at his house he had heard the abuses exchanged between Banshi Amara Ram and Bodu. After quarrel, Banshi Went away to the shop of Gulabchand and sat there and Amararam and Bodu were sitting at the shop of Bodu. Thereafter he went away. PW 4 Raj Singh in his statement under Section 161 Cr. PC has stated that on the day of occurrence accused Banshi came all of a sudden at the shop of Gulab Chand and gave 4 lathi blows on the head of deceased. When he caught hold of accused, he gave blows on his hands, neck and back with lathis and ran away to the shop of Bodu. He also went to the shop of Bodu. Thereupon Bodu struck him on his hand with a stick. In his statement in cross -examination, he denied that there was any quarrel between Bodu, himself and Banshi. He has also denied that the name of Bodu, who is a handicapped has been substituted by the name of Amara Ram. He has stated that it is correct that after he tried to catch accused Amara Ram, he ran away towards the shop of Bodu, but he has stated that he had not gone to the shop of Bodu and has denied that Bodu had not given any stick blows on his head. He has stated that since he himself received injuries and was feeling painful on that account and therefore he did not make any telephone to the police to inform about this incident nor he told any body else to do so. He has denied that on account of quarrel with Bodu, deceased Banshi fell down on the stones, on account of which he received injuries on his head.
(3.) PW 10 Gulab Chand on whose shop the occurrence is said to have taken place, has stated in his statement that the shop of Bodu is about 50 yards away from his shop. He has stated that on the day of occurrence, he was giving materials to his customers at the relevant time when the occurrence took place and Kana Ram, Ganga Ram and some other persons were sitting at his shop. He has further stated that Banshi was not at his shop and he was sitting at the shop of Bodu. Banshi never came at his shop. He heard Banshi and Bodu exchanging abuses between themselves. When the wife of deceased Banshi shouted, he came but of his shop and saw deceased Banshi lying on the road infront of the shop of Bodu. He further says that he did not know who gave beating to Banshi and Amara Ram was not present on the spot at that time. He further states that Raj Singh, who lives above his shop, came on the spot on hearing the shouts of wife of Banshi. He did not see Amara Ram giving lathi blows to Banshi. This witness has been declared hostile by the prosecution. He has further stated that his statement recorded in the presence of the Magistrate was given under pressure of police. He states that he had affixed his signatures on some documents as the Thanedar had told him that if he does not sign these documents, he will be involved in a false murder case.;