BABUDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The sole accused in the case is the appellant herein. He was tried for offences punishable under Ss. 302, 307, 380 and 460, IPC by the learned Sessions Judge, Jalore. He was sentenced to death under S. 302, IPC. He was also sentenced under S. 307, IPC to undergo 10 years R.I. and to pay afine of Rs. 2,000/-in default of payment of which to undergo 3 years R.I. under S. 380, IPC to 5 years R.I. and to pay a fine of Rs. 1,000/- in default of payment of which to undergo 2 years R. I. and under S. 460, IPC to 10 years R.I. and to pay a fine of Rs. 2,000/- in default of payment of which to undergo 3 years R.I. The sentences other than death were ordered to run concurrently. The learned Sessions Judge made a reference for confirmation of death sentence and the accused also preferred an appeal against the convictions and s6ntences and they were disposed of by a common judgment by the High Court. The death sentence was reduced to imprisonment for life by the High Court and other convictions and sentences were confirmed. Hence the present appeal.

(2.) The prosecution case is that on the intervening night of 13th and 14th July, 1980 the deceased Manshaji and his wife Smt. Gangadevi P.W. 2 were sleeping in the chowk of their house. P.W. 18 Pukhraj, son of the deceased Manshaji and his wife Smt. Phau, P.W. 1 were sleeping upstairs. At about 1 a. m. in the night the deceased raised alarm "Chor Chor'. Thereupon, Smt. Gangadevi, P.W. 2 got up and saw her husband and the thief grappling with each other. The thief who was armed with a sword, inflicted injuries on the head and on other parts of the body of the deceased. Then P, W. 2 went near the thief and she was also inflicted blows with sword. The deceased fell down and became unconscious. P.W. 18 and his wife P.W. 1 on hearing the alarm came down. The thief had already run away before they came down. The villagers also gathered later. On verification it was found that the thief had stolen some silver karas. P.W. 18 went to the police station and gave a report. S.H.O., P.W. 30 sent the same for registration to the Police Station and the crime was registered and investigation commenced. Inquest was held and the dead body was sent for postmortem. The doctor, P.W. 20 who conducted the postmortem, opined that the deceased died because of the injuries found on him. S.H.O. seized certain articles at the scene of occurrence. He recovered a bag which contained shocs and pieces of towels. He learnt that a person by name Babuda (the appellant before us bears the same name) used to move about tying red chundari turban with a sword having a black sheath and a piece of towel tied to that sheath. The Investigating Officer enquired about his movements. He learnt that Babuda was involved in a case in the Court of Bhininal and that he did not attend the court as he was an under-trial accused. He made investigation from jail officials and gathered some information about his clothes. Then he got identified all the clothes recovered from the spot and came to know that Babuda was a historysheeter. The S. H.O. alerted all police stations. He seized a sword said to have been deposited at the police station by one Sattar. He arrested the appellant Babuda on 1-9-80 nearly I- 1 1/2 months after the occurrence and on information given by him that he sold silver karas to one Shesh Ram Sunar (Pawn Broker), P.W. 15, he went to P.W. 15 and recovered silver karas articles 1, 2, 3 and 4. When the accused was arrested he also recovered a sword with a black sheath. Articles 1, 2, 3 and 4 were identified as belonging to the deceased. After completion of the investigation charge-sheet was laid. The prosecution examined 32 witnesses who spoke about various circumstances. The accused pleaded not guilty and stated that he was arrested and implicated falsely. Both the courts below observed that the case rested on the following circumstances:

(3.) It was held by both the courts below that these circumstances particularly the circumstance namely the recovery of silver karas identified as belonging to the deceased established the guilt of the accused. The High Court held that the prosecution has failed to prove that the turban and the black sheath were of the accused. The High Court has also held that the general evidence that the accused used to wear a red chundari turban and used to have a sword with a black sheath is of no help to the prosecution. The High Court also pointed out that the Investigation Officer has -recovered two swords and thus a discrepancy has crept in. This second circumstance was eschewed. The High Court relied on the other circumstances and held that they form a complete chain and bring home the guilt to the accused. We may point out here that the main circumstance relied upon by the High Court was the recovery of the silver karas.