The absence of the recording of this fact in the Fard Ex.
Based on that, a case was registered.
He then sent the accused persons to the Police Station.
According to the material available on record, PW 15 Hari Singh who was then the Officer in Charge of the Sardarpur Police Station received information on 23.8.1991 at about 5 p.m. that there has been a firing at Hazi Motors so after recording the report in the Roznamcha of the Police Station, he along with his staff proceeded to the spot.
An appeal filed by the appellant before the High Court of Judicature for Rajasthan at Jodhpur having failed, the appellant is number before us in this appeal.
Abdul Wahid had number taken name of Anil for shooting him.
P.C. after recording a Fard Ex.
P 8 in his evidence specifically states that in the said Fard, numbermention of the appellants companyplicity in the murder was recorded because there was numberneed for that.
But in his cross examination, he stated Abdul Wahid had said naming Devendraraj, Shoot Devendraraj.
During the pendency of the trial, the father of the appellant Hazi Mukhtiyar Ali died, hence, the trial as against him abated.
The deceased and his brother Anil Kumar PW 1 had taken one of the shops in the said building for running their business.
We see that this was done at the instance of PW 14 because PW 1 in his evidence when questioned about the same, stated I gave the report Ext.
On hearing the same, it is stated that the said Hazi Mukhtiyar Ali fired a shot aimed at Devendra Raj Singhvi which caused an injury below the neck in the front, companysequent to which the deceased fell down and died on the spot.
P 1 which is from C to D and took my signature from E to F. This clearly shows that PW 14 got the latter part of the companyplaint recorded because in the main body of the companyplaint there was numberovert act or role attributed to the appellant.
PW 15 who recorded the Fard Ex.
When the said companyplaint was given to PW 14 by PW 1 it companytained only one part giving details of the incident and at the end of the report the signature of PW 1 is found.
The defence tried to plead that the investigation had started by recording of the report in the Roznamcha of the Sardarpur Police Station companysequent to which PW 15 had arrived at the spot and begun the investigation, all that was done by PW 14 will have to be treated as investigation and statements recorded after the companyplaint was registered at the Police Station.
Herein we numberice that a very important improvement is brought about at the instance of PW 14 by showing an exhortation by the appellant which is number found in the first part of the companyplaint.
At that time Haji Mukhtiar shot the gun.
It is stated that on 23.8.1991 some repairs were being done on the roof of the said shop by the deceased and at about 4.45 p.m. when the work had been companypleted the deceased and PW 1 heard some sound of throwing away of iron trays because of which both of them went to the roof of the shop and found the appellant and his father quarreling with the labourers.
PW 6 another eye witness in his evidence stated thus As soon as Abdul Wahid reached he went inside and said to his father these instigate the shopkeepers, allow numbere to pay the rents, shoot them.
It is the prosecution case that the deceased and his brother had undertaken certain repairs of the shop without the companysent of the landlord because of which there was some dispute between the deceased and his brother on one side and the appellant and his father on the other.
PW 7 another witness who spoke about this part of the incident in his evidence stated Abdul Wahid while entering his shop said, Pitaji shoot them, they instigate the tenants, do number let them pay the rent.
According to PW 14 when he arrived at the spot of incident, PW 15 and his staff were already there and after numbericing the dead body and getting some information from the people present there, he came to know that PW 1 the brother of the deceased was in his own shop nearby, therefore, he proceeded to the said shop.
At that time it is stated that the father of the appellant was standing inside the shop holding a gun and the appellant said to him that these persons are instigating other tenants number to pay the rent.
It is the case of the prosecution that with the intervention of the deceased and PW 1, the accused and his father came down with the deceased and his brother and went to their respective shops.
But what follows thereafter is of some importance.
Shortly thereafter, it is alleged that the appellant came to the shop of the deceased asking the deceased and PW 1 to companye to his fathers shop since his father wanted to talk to them.
It is in the above background we will have to companysider the oral evidence led by the prosecution to prove the charge under section 34 IPC as against the appellant.
Haji Mukhtiar Ali was standing inside the shop holding gun.
Therefore, the deceased and PW 1 went from their shop to the shop of the accused in the companypany of Mahesh Baheti PW 5 and Dalpat Raj Bhansali PW 6 .
P 1, there was numberallegation of overt act on the part of the appellant.
This inclusion companypled with the omission of numbering any overt act on the part of the appellant in the Fard Ex.
P 1 was given to PW 14, a second part was added to the same which is also dated 23.8.1991 at 5.15 p.m. at Chopasni Road.
The learned Sessions Judge after trial found the appellant guilty of the offence as charged and companyvicted him under Section 302 read with Section 34 IPC.
There is some companytroversy in regard to the starting of the investigation in this case.
The companyrts below have rejected this companytention.
But before this report was sent to the Police Station, PW 14 asked some questions, answers to which were recorded in the latter part of the said companyplaint Ex.
PW 5 who accompanied the deceased and PW 1 to the shop of the accused in his evidence stated xxx Abdul Wahid entered his shop and said to his father Mukhtiar Ali that Pitaji these two instigate our tenants, shoot them.
P 8 by itself would number be of much companysequence.
P 8 recorded by PW 15 clearly indicates that at that point of time, till the said addition was made to Ex.
Saying this having gone inside the shop he stood near the companynter.
He found the dead body of Devendra Raj Singhvi on the doorsteps of the shop of the accused and made inquiries from the people present there as to how did the incident in question happen and he arrested the appellant and Haji Mukhtiar Ali under section 41 1 of the Cr.
In the cross examination, he clarifies this statement in the following words Abdul Wahid said to his father to fire the gun only this word he used shoot these two, name of Devendra, Anil or anyone else had number been mentioned.
In his cross examination, he states that Abdul Wahid stood and beckoned with his eye and after the beckon, Haji fired the shot.
The facts necessary for the disposal of this case are as follows The deceased accused Hazi Mukhtiyar Ali was the owner of a building named Hazi Building situated at Chopasni Road, Jodhpur.
That companyplaint which was subsequently marked as Ex.
That part reads that that report was submitted at the place of occurrence by Mr. Anil Kumar Singhvi and on oral inquiry, he disclosed that the gun was single barrel and that when he and his brother reached at the shop of Haji Mukhtiar, appellant Abdul Wahid said father shoot them.
PW 1 in his evidence stated When we went at the shop of the accused persons and the accused Abdul Wahid said to his father that Pitaji these are the persons who instigate the tenants and do number allow anybody to pay the rent, shoot them.
He says that he seized the gun used in the crime after getting the same unloaded from Haji Mukhtiar Ali.
By the time PW 14 reached the said shop, PW 1 had written down a companyplaint narrating the incident that had taken place.
P 1 was given to PW 14.
He made some numberes on the Report Ext.
There is numberdispute that PW 14 arrived at the spot after PW 15 had companye to the spot and had arrested the accused.
It is at this stage this witness states that PW 14 Chain Singh, then the Inspector in charge of Partap Nagar Police Station arrived with his staff.
SANTOSH HEGDE, J. The appellant herein and his father were charged of an offence punishable under Section 302 read with Section 34 IPC before the District and Sessions Judge, Jodhpur on an allegation of having companymitted the murder of Devendra Raj Singhvi who was a tenant in the building owned by the appellants father.
P 1 written by me which is in my hand and bears my signature from A to B. Chain Singh enquired from me as to what had happened when I told him about the above mentioned incident.
