NATHU ALIAS MITHU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This Criminal appeal is directed against the judgment of Additional Sessions Judge, Dausa, dated 22-2-1930, by which the appellant was convicted under Sec. 302 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 500.00 and in default of payment of fine further three months' imprisonment along with set off under section 428 Crimial P.C.

(2.) The prosecution case, in brief, is that on 29.6 1979 at 8.00, P.M., Raghu Nath Singh resident of Gudha-Chandarji and at present driver at P.H.C , Mandawari informed on telephone to SHO, Police Station, Lalsoth that a person has been admitted at P H C. who has been seriously injured by gun shot and his condition was serious. On receiving this information, Inoharge Police Station, Head Constable Hajari Lal and other constables reached P. H. C., Mandawari and found one Madho Singh son of Moharpal Meena resident of Maheria in serious condition, on the request of the Police, the Doctor recorded the dying declaration of Madho. Moharpal father of Madho also lodged a F.I.R., Ex. P. 4 at Police Station, Lalsoth on 29.6.1979 at 10.05 P. M. The case as stated in the F.I.R. was that a dispute was going on for the last one year between the informant and Keria son of Sukhji Meena of Maharia (father of accused appellant) in respect of boundary wall of the field. On 29 6.1979 the Informant son of Madho was sitting in the field at about 5-6.P.M. in the evening. Prior to this the accused Nathu Lal alias Mithu Lal son of Karia Meena was sitting in a concealing manner with a gun. Accused hurled abuses on Madho Lai and there after, accused Nathu Lal fired two shots, out of which one shot went empty and the other went inside the stomach of Madho Lal. When our partner Shri Nathu Lal son of Moju Ram Meena came running and at ended Madho Lal. He found that a bullet had gone inside the stomach of Madho Lal and the accused Nathu Lal son of Keria was standing with a gun. Then Shri Nathu Lal son of Moji Ram after going at the house of Kajod son of Lohadiya Meena told that Madho Lal has been fired by a gun shot by Nathu Lai alias Mithu Lal son of Keria. The the informant, his brother Kalyan and Prabhu son of Dhanna came at the field of the informant Mohar Pal and found Madho Lal lying there. Blood was oozing out from his stomach. Injured Madho Lai was then brought to Mandawari P.H.C. in a Camel Cart and requested the Police to take action. The Police registered a case under Sec. 307, 447 and 323 I.P.C. and started investigation. The statement of injured Madho was recorded under Sec. 161, Cr. P C. On the advise of the Medical Officer, injured was sent for treatment to Jaipur with Head Constable Shankar Singh. Soon after reaching Jaipur hospital, injured Madho succumbed to the injuries and the police registered a case under Sec. 302 1. P.C. The police inspected the site and prepared site-plan Ex. P. 2 and got the post mortem examination of deceased Madho. In the post mortem of the deceased two pieces at pallets and round pallet was found inside the body of the deceased. Accused Nathu was arrested and the double barrel 12 bore gun was recovered from bis possession. The blood-stained clothes and sample of earth were sent for chemical examination. Accused after usual investigation was challenged under Sec. 302 I.P.C. The prosecution examined 18 waitresses in support of its case and the statement of accused was recorded Under Sec. 313 Crimial P.C. The accused submitted his written statement also in writing on 2.2.1980. The accused in his statements under Sec. 313 Crimial P.C. admitted that he had fired a shot and deceased Madho died of account of the said gun shot. However, the case of the accused was that he had no intention to cause the death of Madho. He admitted that he had given gun to the police with which he had fired on Madho and he himself had surrendered before the police. According to the accused, P.W. 13 Nathu Lal was giving statement against him due to enmity. In the written statement submitted by the accused he has stated that in June 1978 his father was mercilessly beaten by Madho (deceased) and his father Moharpal. On account of the injuries the head and the left hand of his father were broken. Due to injury, in the hand his father was unable to cultivate. He was the only son of his father. Deceased Madho and Moharpal wanted to kill him and to grab the field and other properties belonging to him. As there was danger to his life from the side of deceased Madho and others he had filed an application under Sec. 107/- 116 Crimial P.C. in the court of S.D.M., Dausa in 1978 against Madho (deceased), Moharpal, the witness Nathu and 6 other persons. He had also given an affidavit in May, 1979 in that case for his safety. On 29.6.1979 the alleged day of incident, he along with Nanga son of Budha were spreading manure in their field Choksrwala. Madho and his partner Nathu came in his field Chokar wala armed with in order to take forcible possession. It is further stated th3t when the accused asked not to do so than Madho inflicted blows by a lathi. Accused tried to scape but both the aforesaid persons chased in order to kill him and on this first fired in the air to scare them but they did not stop and when accused became fully convinced that he would be killed by these persons then he fired a shot on the legs of the deceased so that he may desist from chasing him but as the deceased instantaneously set down, case of the pallets went inside his stomach. According to the accused he had no intention at all to cause death of the deceased but the entire act was done to save his own life. Accused in his defence examined Nanag Ram, DW.l and Ganga Dhar, D. W. 2

(3.) The learned Sessions Judge, after recording the statements of the witnesses placed reliance on the statement of Nathu, P.W. 13. and did not believe the story set-up by the defences and in the result, convicted and sentenced the accused in the manner indicated above.