S. S. BYAS, J. - (1.) ACCUSED Babu Singh was convicted under Sections 302 and 324 I. P. C. and sentenced to imprisonment for life with a fine of Rs. 500/- and rigorous imprisonment for two years with a fine of Rs. 500/- on the respective counts by the learned Additional Sessions Judge (i), Ajmer by his judgment dated June 18, 1988. The accused has come-up in appeal and challenges his conviction.
(2.) AT about 7-50 p. m. on 22-12-1984, PW-5 Radhey Shyam appeared at G. R. P. Station, Ajmer with a bleeding wound on his neck. He was employed as a 'rakshak' (constable) in the Railway Protection Force and his duty hours on that day were from 6. 00 p. m. to 12-00 p. m. He stated before the S. H. O. Mod Singh PW-14 that while taking rounds at the railway station, he reached the R. P. F. post near, which bicycles are kept at about 7-30 p. m. He found a healthy-man around 55-60 years in age with white hair, beard and moustache. As bicycles are generally stolen from that place he asked that man as to why he was standing there. That man told him that he had come there in search of his friend "verma-ji". That man then left the place and went towards the plat-form No. 1. He (Rakshak) also followed him and after some distance asked him his name. That man told his name as Joshi and that-he had come from Ratlam in railway train No. 112. While these talks were going on PW-7 Ishwarlal who is his relative also came there. The Rakshak and that, man proceeded further and came at the junction of plat-forms No. 2 and 3. They and Ishwarlal smoke a bidi there. Ishwarlal then left the place to go to his house. He (Rakshak) suspected that man as a cycle thief and caught him to take to the railway police station. That man offered a big bribe of Rs. 500/- to him but he refused to accept it. While they were on the way that man took out a dagger from his bag and struck a blow with it on his (Rakshak's) neck. That man then took to heels. He raised cries and ran after that man. Hearing his cries Mahendrasingh, the deceased, tried to catch that person. That person plunged his dagger in the chest of Mahendra Singh. Mahendra Singh fell down. PW-2 Rambal who was also employed as a Rakshak in the R. P. F. ran after that person. That person entered in a compartment of the train. Rambal PW-2 followed him and that person struck blow on his abdomen by the dagger. Rambal fell down. That person made good his escape throwing his bag and the cover of dagger there. PW-14 Modsingh, S. H. O. recor-ded this statement of Radhey Shyam in Ex. P. 7 and prepared the first information report Ex. P. 8. A case under Sec. 307, 302, 353 and 333 IPC was registered. , Mahendra Singh was taken to the Govt. Hospital where he passed away at about 8-15 p. m. on the same day. The Station House Officer inspected the site and prepared the site plan Ex. P. 9. and the inquest report of the victim's dead-body. He also seized the bag and the dagger cover thrown by the culprit near the place of incident. The postmortem examination of the dead-body of Mahendra Singh was conducted next day by the medical jurist J. L. Nehru Hospital. Ajmer. The injuries of Radhey Shyam PW-5 and Rambal PW-2 were also examined. As per medical opinion, the cause of death of Mahendra Singh was shock and haemorrhage as a result of ante-mortem injury on vital organ (liver ). Radhey Shyam and Rambal were admitted for treatment in the hospital where they remained as indoor patients for a pretty long time. When the bag thrown by the culprit was opened and searched, some clothes, keys, tooth-brush and like such articles along with a torned written chit Ex. P. 26 were found. In Ex. P. 26, "naharpura" was found written along with two names namely Rampal and Laluram Ji Sharma. The blood stained clothes of the deceased and the injured Rakshaks were seized and sealed. The police made strenuous efforts to trace-out the culprit and various police parties were sent for that purpose. The Dy. Supdt. of Police went to Ratlam and arrested the accused Babu Singh in Naharpura locality in the mid-nig of 26-12-1984 and prepared the arrest memo Ex. P. 22 The accused was brought to Ajmer and remand of his police custody was obtained from a Judicial Magistrate. In consequence of the information furnished by him, a dagger was recovered lying berried deep near the place of incident. The accused was lodged in Central Jail, Ajmer on 31-12-1984. The test identification parade was conducted on 2-1-1985 by the Addl. Chief Judicial Magistrate Shri Verma PW-16. " The accused was correctly identified by PW 5 Ishwarlal, Ramesh and Ramchandra. PWs Amar Singh and Bachcha Ram did not identified him correctly and identified some others as the person who had stabbed the Rakshaks and deceased Mahendra Singh. Again on 22-2-1985 a test identification was conducted in the Central Jail, Ajmre by the Judicial Magistrate Shri T. P. Gupta PW-15 in which PW-2 Rambal and PW-5 Radheyshyam correctly identified the accused as the person who had stabbed them. The test identification memos are Ex, P. 1 and Ex. P. 2. After when the investigation was over, the police submitted a challan against the accused in the Court of the Judicial Magistrate (Railways), Ajmer who in his turn committed the case for trial to the Court of Sessions The case came for trial before the Additional Sessions Judge (1), Ajmer, who framed charges under Sections 302 and 307 IPC against the accused to which he pleaded not guilty and faced the trial. In support of its case the prosecution examined 16 witnesses and filed some documents. In defence the accused examined one witness. On the conclusion of the trial, the learned Addl. Sessions Judge held the charges proved against the accused. He was consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction, the accused has taken this appeal. We have heard Mr. Ashok Verma learned counsel for the appellant and the learned Public Prosecutor Shri Rizwan Alvi. We have also gone through the case file carefully. It may be mentioned at the very out-set that Mr. Verma did not chellenge the cause of death of Mahendra Singh and the number and nature of injuries found on PW-2 Rambal and PW-5 Radheyshyam. The post-mortem examination report is Ex. P. 17 and the injury reports are Ex. P. 18 and Ex. P. 19. All these three documents were admitted by the accused during trial and, as such, the doctors who conducted the autopsy and examined the injuries were not produced in evidence. Since these are admitted documents, we need not deal with them in detail. Suffice it to say that the death of Mahendra Singh was homicidal and the injuries caused to PW-2 Rambal and PW-5 Radheyshyam were simple inflicted by a sharp weapon. Mr. Verma also did not challenge the incident nor was in a position to do so in view of the direct evidence of PW-1 Ram Chandra, PW-2 Rambal, PW-5 Radheyshyam, PW-6 Bachharam, PW-7 Ishwarlal, PW-8 Ramesh and PW-9 Amar Singh. We have gone through the evidence of these witnesses and it can be said without any hesitation that PW-2 Rambal & PW-5 Radheyshyam were inflicted injuries with some sharp weapon and Mahendra Singh was stabbed to death by same person in the yard of railway station, Ajmer around 7-30 p. m. on. 22-12-1984.
(3.) IN assailing the conviction of the appellant, Mr. Verma vehemently contended that it is a case of wrong identity. It was argued that the entire prosecution case rests on the identification of the accused made by the prosecution witnesses firstly on 2-1-1985 and subsequently on 22-2-1985. He has taken several grounds to show that the test identification parades conducted do not inspire confidence. It was further argued that the Dy. Superintendent of Police who arrested the accused in Naharpura locality, Ratlam on 26-12-1984 has not been produced in evidence by the prosecution. The prosecution has not explained as to on what grounds and reasons the accused was arrested at Ratlam. The best witness to state so was the Dy. S. P. and he has been withheld. We shall take up his contention as sailing the identifications at seriatem. Before we deal with the contention of Mr. Verma some prominent features arising in the case may be noticed. The first is that the incident took place in the yard of the railway station. All the witnesses who identified the* accused as the culprit who committed the offence, are either police or railway employees or employees in the Railway Protection Force. G. R. P. station is situate on platform No. 1 of the railway station. The accused was arrested at Ratlam in the night of 26-12-1984 and was brought to Ajmer. Remand of his police custody was obtained from a Magistrate and he remained in police custody till he was lodged in Central Jail, Ajmer on 31-12-1984. First identification parade was conducted on 2-1-1985. The accused-was taken back in police custody and was thereafter lodged in Central Jail, Ajmer on 8. 11. 985. The second test identification parade took place on 22-2-1985, In the second test identification, PW-2 Rambal and PW 5 Radheyshyam - who are the injured victims in the case participated. In the first information report Ex. P. 7 (statement of Radheyshyam), the description of the culprit is that he has. white hair on head, white beard and moustache and was of 55-60 years in age. In challenging the identification, the-first contention raised by Mr. Verma is that the accused was arrested on 26-12-1984 at Ratlam. , He was brought to Ajmer and remand of his police custody was taken. He remained in police custody and was lodged in Central Jail, Ajmer on 31-12-1984. When the first test identification was conducted on 2-1-1985 the accused stated before the Magistrate conducting the identification that he was already shown to the witnesses by police and that fact has been mentioned in the test identification memo Ex. P. 1. The mode and method adopted by the investigating agencies is highly objectionable and is in violation of Rule 7. 31 of the Rajasthan Police Rules, 1965 (hereinafter to be referred to as 'the rules') It" was argued that the investigating officer deliberately took the police remand of the accused with a purpose to show him to the witnesses. The contention raised is quite effective and has considerable merit. ;