STATE OF RAJASTHAN Vs. NATHU

JUDGEMENT

(1.) This appeal by special leave is preferred by the State of Rajasthan against the order of the High court dated 11.1.1995 whereby and whereunder the High Court has maintained the conviction of accused Dhulla under302 IPC simpliciter and recorded acquittal of the accused-respondents Nathu s/o Nana, Walji (Balji) s/o Moola, Heera s/o Nana and Dheera S/o Moola, thereby reversing the sentences and convictions recorded by the Trial Court in case No. 90 of 1985 under 302 with aid of 149 IPC and sentenced them RI for life. The accused Dhulla is not before us.

(2.) Two children of Bhima (PW-1) - son-Dinesh aged about four years and daughter-Jeevi aged about seven years, were (SIC) death by inflicting axe blows between 12.00-1.00 noon on 26.6.1985. The post mortem shows that the necks of deceased Dinesh and Jeevi were choked and the same were connected with a thin layer of skin. The prosecution sry briefly stated in that on 26.6.1985 at about 12.00 - 1.00 noon while the complainant Bhima (PW-1) was sleeping on the cot along with his son Dinesh aged 4 years and his daughter Jeevi aged 7 years who were also sleeping on the palm carpet on the earth near the cot, he heard the noise of persons coming from the backyard of his house. He then got up and saw from the wall, made of wood, the accused persons - Nathu armed with gun; Heera armed with gun; Dheera armed with dhariya; Balji armed with axe and Dhulla armed with axe and the other persons armed with lathis. Being frightened he ran out of his house and hid himself behind the hut situated in front of his house and started watching from there. The accused persons entered in his house after breaking the wall of wood from the backyard of the house. When he heard his daughter Jeevis sound of Aah, Bhima (PW1) presumed that both the children have been killed and he would also be killed. So he fled from the place wards the house of his father and raised an alarm. Being attracted by his alarm his mother Kanku, brother Shankar, Arun etc. reached there. They also saw the accused persons leaving the house. Thereafter, the mother of Bhima went see the children. She found that both the children have been murdered. There was enmity between the accused persons and Bhima and a quarrel also ok place between the complainant and the accused party 7-8 days prior the incident. The accused were stated have taken avenge by committing the crime. Thereafter, PW-1 along with his brothers went the police station Pahara and lodged the FIR (Ext.P-1). Inspecr Bakhtawar Singh (PW-15) investigated the case. He also prepared panchnama of dead bodies (Ext.P-2 and P-3) of Dinesh and Jeevi respectively. He also prepared sketch memo of the scene of crime. He also got the post mortem conducted of the deceased Dinesh and Jeevi by Dr. Ramesh Chander Ohri (PW-12), (Ext.P-11 and P-12). The accused were arrested vide memo Ext.P-21 Ext.P-27. The accused Nathu, Heera, Dhulla and Balji gave disclosure statements vide Ext.P-28 P-32 and pursuant the disclosure statements lathis of cane were recovered vide Ext.P-11 and P-12. Pursuant the disclosure statement of accused Nathu, gun was recovered vide (Ex.P-9). Pursuant the disclosure statement of accused Dhulla and Balji axes were recovered vide Ext.P-8 and P-10. After the completion of the investigation seven accused persons were challened. Accused Dhulla and Balji were charged under Sections 148, 302 & 414 IPC. Accused Kalu and Jamji were charge-sheeted under Sections 148, 302 read with 149 IPC. Accused Nathu, Heera and Dheera were charged under Sections 148, 302 read with149 and 454 IPC. The accused pleaded not guilty and sought be tried. The learned trial court framed as many as five issues and after examining the evidence and documents on record found all the issues established against the accused and held the accused Dhulla guilty of offence punishable under Sections 302 read with 149, 454 and 148 IPC; accused Balji guilty of offence punishable under Sections 302 read with149, 454 and 148 IPC; and the accused persons Heera, Dheera and Nathu also guilty for the offence punishable under Sections 302 read with149, 451 and 148 IPC. Accused Jamji s/o Nanji and accused Kalu s/o Nanji were acquitted of the charges of the aforesaid offences. Accused Dhulla was awarded life imprisonment under302 IPC and a fine of Rs. 100/- and in default RI for one month. He was also awarded life imprisonment under302 read with149 and a fine of Rs. 50/- and in default RI for 15 days. He was also awarded two years RI for offence under454 IPC and a fine of Rs. 100/- and in default RI for one month and two years RI for offence punishable under148 IPC. Accused Balji was awarded life imprisonment under302 read with149 IPC and a fine of Rs. 50/- and in default RI for 15 days. He was also awarded two years RI for an offence punishable under454 and a fine of Rs. 100/- and in default RI for one month and two years RI for the offence under148 IPC. Accused Heera, Dheera and Nathu had been awarded life imprisonment under302 read with149 and a fine of Rs. 50/- and in default RI for 15 days. They were also awarded sentence of one year RI for the offence under451 IPC and two years RI for the offence under148 IPC. The sentences were ordered run concurrently.

(3.) At this stage it will be pertinent point out that algether eight accused were mentioned in the FIR. Accused Kana was separately tried by the Juvenile Court and the remaining seven accused faced trial before the Trial Court - out of which five accused were convicted as noticed above and two were acquitted by the Trial Court.