JUDGMENT

Banwari Lal Sharma, J. - This criminal appeal has been preferred against the judgment dated 3.3.2014, passed by Additional Sessions Judge No.4, Ajmer, in Sessions Case No.60/2012. The accused appellants have been convicted and sentenced as under-

Accused-appellant Mahesh @ Bhaiya '

For offence under section 302/34 IPC ' life imprisonment with fine of Rs. 1000/-, in case of default to pay fine, to further undergo simple imprisonment of three months.

Accused appellant Ankur @ Chirag '

For offence under section 302 IPC - life imprisonment with fine of Rs. 1000/-, in case of default to pay fine, to further undergo simple imprisonment of three months.

Brief Facts Of The Case

2. An FIR No.96/2011 was registered by the Police on 7.8.2011. It was on a written report by Sarwar Siddiqui. It was stated that at around 3.30 PM, he was called by some one to come down from the house. He immediately came down and saw Mohammad in pool of blood. Rajesh Choursia also reached there and on his motorcycle, Mohammad Faakir was taken to hospital. On asking, Mohammad Faakir told that Mahesh Bhaiya and his son stabbed him with knife. When motorcycle imbalanced, he was taken in an auto rickshaw from Ghaseti Auto Stand to JLN Hospital. His family members were also reached there. It was alleged that due to old enmity, both the accused have stabbed Mohammad Faakir with an intention to cause his death. On the above written report, the investigation was made. Mohammad Faakir died during treatment.

3. After investigation, police filed challan for offence under section 302/34 IPC against both the accused appellants. Since the matter was triable by Court of Sessions, it was committed. The trial court heard and framed charges against the accused appellants for the offence under section 302 IPC against accused Ankur and under section 302/34 IPC against accused Mahesh. The charges were explained to the accused appellants. They denied it thus trial commenced.

4. The prosecution produced twenty witnesses apart from seventy one documents to prove their case, whereas, statements of the accused appellants were recorded under section 313 CrPC, 1973. In defence, they produced two witnesses and fourteen documents.

5. After marshalling the evidence, trial court convicted and sentenced the accused appellants as detailed above.

Arguments On Behalf Of Accused Appellant Mahesh @ Bhaiya

6. Learned counsel for accused appellant Mahesh @ Bhaiya submits that in the written report, name of the accused Mahesh and Ankur were given without showing their overt act in the occurrence. In the television interview, the complainant and others had given name of some other person for causing the occurrence. It is only thereafter that name of present appellant was given.

7. It is also submitted that PW-4 to PW-7 and PW-18 were shown to be eye witnesses, however, PW-7 and 18 have not supported the prosecution case. They were declared hostile. The witnesses PW-4 to 6 were planted by the prosecution. In any case, they have not named accused Mahesh for causing knife blows to the deceased Mohammad Faakir. The specific allegation exist against accused appellant Ankur. There was no motive with the accused Mahesh to cause the occurrence with common intention to make out a case for offence under section 302 IPC with the aid of section 34 IPC.

8. Learned counsel has further stated that only one knife has been recovered thus occurrence could not have been caused by two persons. In the present matter, specific allegation exists against accused Ankur for causing the occurrence. In view of the above, mere presence of accused Mahesh cannot lead to his conviction for offence under section 302/34 IPC.

9. It is further stated that recovery of clothes and motorcycle with a knife has been shown at the instance of the accused Mahesh and even co-accused Ankur. The police had visited the residence of the accused but did not recover any clothes. It was recovered later on thus recovery becomes doubtful.

10. It is also stated