CHHOTU GIRI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal arises out of a judgment dated 22.6.1998 of the Additional Sessions Judge No. 2, Ajmer (Kekri Camp) in Sessions Case No. 6/97, whereby appellant was convicted under section. 302 Indian Penal Code and sentenced to life imprisonment with a fine of Rs. 5,000/- (in default, further 6 months' simple imprisonment) apart from conviction under section. 323 with sentence to undergo six months' SI with a fine of Rs. 1,000/- (in default, further one month's SI).

(2.) Brief facts are that a report (Ex.P/6) was lodged on 26.3.1997 by Hemraj Giri brother of deceased-Jagdish) alleging therein that on 26.3.1997 at about 5-6 O'clock in the evening when his brother Jagdish was standing outside their house, one Chhotugiri (accused-appellant) duly armed with club (lathi) came there and started squalling as to the squabble having taken place in day hours in between ladies but while squalling the accused forcibly inflicted lathi blows on his head, to which his sister in-law (brother's wife) tried to rescue him (her husband) but he was also beaten and at that time village people assembled to save otherwise his brother would have been killed at the spot itself and since he was serious, he had first been admitted in the hospital then he has came to lodge the report. On such a report, a crime was registered for offences under sections. 307, 451 and 323 IPC at Police Station Sarwar under FIR No. 54/97 (Ex.P/7). As injured Jagdish Giri died in the hospital, the case was converted into offence under section. 302 Indian Penal Code. After usual investigation, challan was filed and after committal proceedings, the trial Court charged the appellant for offence under section. 302 and 323 IPC, to which he denied and claimed trial. In support of its case, the prosecution examined ten witnesses and got exhibited 19 documents. The accused-appellant was examined under section. 313 Criminal Penal Code. after trial the learned lower Court by its impugned judgment convicted and sentenced the appellant as aforesaid. Hence this appeal.

(3.) Sarva Shri S.K. Saxena and D.D. Khandelwal appearing for the accused-appellant contended that Amra (PW-1) and Ladu (PW-2) did not support the prosecution because Amra (PW-1) has turned hostile while Ladu (PW-2) is formal witness as to having taken injured (since deceased) to the hospital. As regards other eye-witnesses, Shri Saxena contended that Bhuralal (PW-3) denied Smt. Lada (PW-4)'s presence so also as per his version, he was inside Sahkar Bhawan to which nothing could have been seen to the place of incident, inasmuch as he reached the spot upon hearing hue and cry; that apart as he admitted in cross-examination, the club (heavy stick) was brought out of Chhotu's house by the police and this according to Shri Saxena, makes the recovery of club as doubtful being not proved.