BIRDA Vs. STATE

JUDGEMENT

(1.) THE two appellants Likhma and Birda have been convicted by the Sessions Judge, Jodhpur of an offence under Sec. 201 P. C. and sentenced to maximum punishment of 7 years rigorous imprisonment each. THE facts which gave rise to the prosecution of the appellants are these: - Jawan Dan S/o Prithvi Raj Jagirdar of Bhatelai who is alleged to have been murdered had admittedly enmity with the appellants. THEre was civil and criminal litigation going on between them regarding Arniawala well which had been obtained on lease by Jawan Dan from Akhey Singh and Multan Singh. Jawan Dan used to live with Smt. Mathura P. W. 5 in Bhatelai. On Baisakh Badi 1, Smt. 2013 corresponding to 26th April, 1956 he left Bhatelai after informing Mathura that he would first go to Bhambor and then at Jodhpur. At the time of his departure he was wearing a 'khaki safa', 'pesu shoes, a white coat, and a gold ring, and was carrying a bag which contained his papers and 'bahis , He went to Bhambor on Baisakh Bad 2, Samwat 2013 and met Hukamsingh P. W. 6 with whom he had monetary transactions. Without giving details of what Jawan Dan the deceased did at Bhambor, it will be sufficient to state that he left Bhambor for Moondon-ki-dhani in the morning of 26th April, 1956. On the way he reached the 'dhani' of Bena P. W. 15 at noon and asked for water to drink. . It is said that the two appellants also reached there and they were seen talking with Jawandan. Jawan Dan then left towards Moondon-ki-dhani after drinking water and invited the accused to go with him. After Jawan Dan had gone 15 or 20 panvadas, both the accused went after him in the same direction. THE prosecution case is that Jawandan was never seen thereafter and was murdered by these two persons. It may be mentioned here that when Jawandan left Bhambor his son Badridan was not at his house; having gone to Roopawas. On his return from Roopawas and finding that his father has not returned he went to search his father on 29th April, 1956. He reached the 'dhani' of Bena P. W. 15 and learned from him that his father had gone towards Moondon-ki-dhani. Badridan proceeded to Moondon-ki-dhani and on his way he saw Likhma accused going with a 'pharsi' in his hand with his 'dhoti' turned upwards. Badri Dan went and searched his father at Moondon-ki-Dhani and other places and having got no clue regarding his whereabouts he ultimately lodged a report Ex. P. 1 on 22nd May, 1956 implicating all those persons who were on inimical terms with Jawan Dan. A second report was filed on 2nd June, 1956 in which the earlier allegations were merely repeated. On 16th June, 1956 Badri Dari submitted another application Ex. P. 3 in which he gave much more information than was given in the earlier reports. It was mentioned in this report that in the way from Bhambor to Moondon-ki-dhani, Jawan Dan went to Bena's Dhani; there Birda and Likhma etc. , Jats of Bhatelai were present. It was further added that Birda and Likhma and other Jats had suggested to his father to arrive at a mutual settlement of their existing disputes but the negotiations for compromise failed and that his father then started for Moondo-ki-dhani. THEse Jats also followed his father and had forcibly abducted him to some place and that he had not been able to get any clue of place. In this report the property which was with Jawan Dan was also detailed. Besides some money, it was stated that he had 3 'chopanias' of red covers, parcha slips and Pattas of his property. It was for the first time in this application that Birda and Likhma the appellants and other Jats were positively implicated for an offence of abduction. After the submission of the Ex. P. 3, Badri Dan's detailed statement was recorded on 24th June, 1956 by Shri Kundanlal, Additional Superintendent of Police and a case under sec. 302 I. P. C. was registered at the Police Station Jhanwar. During the course of investigation the circle Inspector Gautam Prasad P. W. 30 recorded very detailed statements of the accused in which the accused are alleged to have given some information leading to the discovery of certain property. Birda accused gave information that he buried the papers of Jawan Dan including Pattas and 'bahis' in his field. He led the police to Arniawala field in the outskirts of village Bhatelai. From a corner of the field near the bush he dug out the earth knee-deep in the presence of 'motbirs' and brought out box Ex. 3 which was locked with padlock Ex. 4 containing the documents belonging to Jawan Dan. Birda also gave information to the police that he had purchased the box Ex. 3 from a shop of Mohammad Hussain P. W. 13. On this information Mohammad Hussain was discovered to be the vendor of these articles. He produced some entries relating to the sale of the articles to Birda. Likhma accused similarly in his detailed statement recorded by Gautamprasad gave information that he had thrown the dead body of Jawan Dan in Gundiwala well and that he had sold the gold ring of half 'mohar' to a shop-keeper in Jodhpur City. THEreafter only one bone was recovered from the well as there was lot of water. THE well was then emptied and several bones, one shoe and 'khaki Safa' were recovered from it. THEse articles were identified by Smt. Muthra and Badrinarain as belonging to the deceased Jawan Dan. THE bones were also found by the Doctor to be of an elderly male human being age 50 to 60 years. THE police after completing the investigation submitted charge-sheets against both the appellants under sec. 302 IPC, in the court of 1st Class Magistrate No. 2 Jodhpur who after enquiry under chapter XVII committed them to the court of Sessions for trial.

(2.) THE accused denied their guilt and came forward with a complete denial including the recovery. THE Sessions Judge after trial arrived at the following findings: - (1) that the evidence on record leaves no doubt that the prosecution has succeeded in proving the death of Jawan Dan beyond any doubt. (2) that the prosecution has not succeeded in proving beyond doubt that Jawan Dan's death was caused by, or in pursuance of, the act of Likhma and Birda accused. (3) that there is, however, conclusive evidence on record that Likhma and Birda accused concealed the evidence relating to the offence of Jawan Dan's murder.

(3.) COMING to the recovery evidence I propose to examine the cases of the two appellants separately.