DOMBAYYA POOJARY Vs. STATE BY BANTWAL POLICE

JUDGEMENT

(1.) The accused who has been convicted for the offence under Sec. 302 of the Indian Penal Code (for short 'IPC') and sentenced to undergo life imprisonment with fine of Rs.5,000.00 and, to further undergo imprisonment for a period of 6 months in default of payment of fine, has preferred this appeal. The case of the prosecution in brief is as follows:-

(2.) The prosecution examined 12 witnesses. Appreciating the evidence of these witnesses, the trial Court came to the conclusion that the accused was guilty of offence under Sec. 302 of Penal Code and convicted him as stated above. The trial Court has recorded findings that from the evidence placed before it, the happening of the incident stands proved. After the quarrel started, P.Ws. 1 and 2 went to the house of Rama Bhat-P.W.3 and stayed there overnight. When they returned to the place of incident on the next day morning, they saw multiple injuries being present on the dead body. Only accused was present in the house. It is not the case of the accused that someone had come to his house during that night. It was within the knowledge of the accused as to what happened on that night. He only should explain as to how his mother sustained fatal injuries. According to Sec. 106 of the Indian Evidence Act, the burden was on the accused to prove the facts which were within his special knowledge. Referring to the evidence given by P.W.1, the trial Court has given a finding that the suggestion given to P.W.1 that she used to go to hillock area situate behind the house for answering nature's call, and the deceased was also going to the very same hillock for the same purpose and therefore, there was possibility of deceased having fallen down and sustained injuries, cannot be believed. Suggestion to this effect was not given to P.W.1 when she was cross-examined. In addition, when the accused was examined under Sec. 313 of Crimial P.C. he gave a statement that actually a quarrel broke out between his wife and the deceased and thereafter P.W.1 went out of the house with her children and then he slept in his house. The trial Court has disbelieved this statement. No suggestion was given to P.W.1 in this way when she was cross-examined. Therefore, the evidence on record would disclose that it was the accused who killed his mother. According to the trial Court, this is a case of murder punishable under Sec. 302 of IPC.

(3.) Assailing the findings of the trial Court, the learned counsel for the appellant argues that the incident is said to have taken place around 8.30 p.m. on 19.02.2013, but Ex.P.2 shows that it was registered at about 14.00 hours on 20.02.2013. It is a typed one. Therefore, this delay in registration of FIR has to be viewed seriously. He also argues that P.Ws. 1 and 2 are actually eye witnesses according to the prosecution, but they have not supported the prosecution case. These two witnesses turned hostile and when they were crossexamined by the Public Prosecutor he failed to elicit from them that they had actually seen the incident. Evidence given by P.Ws.1 and 2 finds support from the evidence of P.W.3, who has clearly stated that P.Ws. 1 and 2 came to his house and slept there on that night. Therefore, it is possible to draw an inference that P.Ws.1 and 2 are not the eye witnesses. Moreover, when P.Ws.1 and 2 returned to their house on the next day morning, accused was still sitting there. If he had really assaulted his mother, he would have left that place. The very fact he was there shows that the prosecution case cannot be believed. He further argues that evidence given by P.W.8 with regard to recovery cannot be believed. Even if it can be relied upon, the testimony of P.W.8, cannot be based to come to a conclusion about the involvement of the accused in the incident.