KALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present appeal has been filed by the appellant Kalu challenging his conviction under Sec. 302 I.P.C. and sentence of life imprisonment alongwith fine of Rs. 5,000.00 awarded by the learned Sessions Judge, Udaipur in Sessions Case No. 94/98 vide judgment dated 10.08.98.

(2.) The prosecution case was based on an oral report Ex.P.12 given by P.W.12 Nara on 01.10.97. On receiving the information, P.W.9 Bheru lal, Dy. Superintendent of Police, Police Station Sarada went to the scene of the occurrence. According to the report, at about 12.30 RM., P.W.12 Nara alongwith his brother P.W.14 Ganga proceeded to village Gatod. When they reached Ghantawali Naal, there they met P.W.10 Hakra and P.W.13 Manna. All these persons sat down under a tree and were smoking 'beedi. They heard cries of P.W.11 Laxmi. Someone was throwing stones on her. P.W.12 Nara and P.W.13 Manna rushed to the direction where Laxmi was shouting. They saw that one person wearing 'dhoti was carrying a bag on his shoulder. After seeing them, he moved towards the hill. They followed him shouting 'thief, thief. On hearing the shouts, persons from Guriya village also joined them. On being surrounded by all the persons, the accused was apprehended at the spot. The accused did not inform his name but he said that he is grandson of Doonga Meena. When the bag thrown by the accused was seen, it was soaked in blood and contained a baniyan, yellow coloured bag and turban. There were also two eyes and lower jaw found in that bag. They suspected that the clothes and other belongings may be of deceased Kalu Maharaj. On searching, they found the dead body of Kalu Maharaj covered by a white dhoti. The lower jaw and the eyes were missing. P.W.9 Bheru lal sent the First Information Report Ex.P12 with the Constable Shambhu Singh to the police station and after completion of investigation, a chargesheet was filed in the court of Munsiff and Judicial Magistrate, Udaipur who committed the case to the Session Court, Udaipur where the accused was charged under Sec. 302 I.P.C. The accused denied the charges and claimed trial.

(3.) At the trial, the prosecution examined 21 witnesses and exhibited 42 documents. The defence got one document exhibited. After the trial, the learned Judge considered the prosecution evidence and found that the defence story is not probable wherein it has been suggested that deceased Kalu died of an attack by some beast in the jungle and has found that death was homicidal. Then, the learned Judge proceeded to consider the evidence of other witnesses. Most of the prosecution witnesses have turned hostile. So much so, that the sons of the deceased P.W.3 Limba and P.W.4 Doonga and turned hostile. The learned trial judge has brushed aside the hostile character by saying that they were not the witnesses of the occurrence and were only witnesses of the identification of the dead body. Therefore, their turning hostile is immaterial to the prosecution case.