JAGDISH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellants have preferred this appeal aggrieved by the judgment and order of conviction dtd. 28/11/1989 whereby the appellants have been convicted for offences under Sec. 302 read with Sec. 34 and Sec. 323 of the Indian Penal Code (hereinafter referred to as "the IPC") and have been sentenced to undergo life imprisonment and a fine of Rs.5,000.00 each. On non- payment of fine, to further undergo three months simple imprisonment for offence under Sec. 302/34 IPC and appellants have been sentenced to one month simple imprisonment for offence under Sec. 323 IPC.

(2.) Succinctly stated the facts of the case are that an FIR was lodged on 16/6/1986 by Malaram at 1.00 a.m. at Police Station, Khatu Shyamji wherein it was mentioned that at about 4.00 p.m., the appellants and four other co-accused assaulted Ganpat Ram near the well and then assaulted Ganpat Ram's wife - Smt. Jadavali. After giving beating and on shouting of co-accused Rameshwar, present appellants threw Smt. Jadavali into the well. Thereafter, the informant climbed down into the well and held Jadavali in his lap for about one hour and then she was exhumed from the well. The police registered a case under Sec. 302 IPC against the present appellants and four others and after investigation, filed charge-sheet against six persons including the present appellants. The appellants and the other charge-sheeted accused denied the charges and sought trial, upon which, as many as 14 witnesses were examined on behalf of the prosecution, explanations of the accused were recorded under Sec. 313 Cr.P.C. and six witnesses were examined in defence. After hearing the arguments, the trial Court acquitted four of the accused and convicted the present appellants, aggrieved by the judgment of conviction and the sentence, the appellants have preferred this appeal.

(3.) It is contended by Mr. V.R. Bajwa, Senior Advocate appearing for the accused appellants that the case of the present appellants is akin to that of the other four charge-sheeted accused. In the initial FIR lodged by Malaram, it was mentioned that all the six persons gave beating to the deceased - Jadavali and thereafter, five of them threw her into the well. It is further argued that learned trial Court has observed that the witnesses Malaram (PW-6) and Ganpat (PW-7) are not fully reliable and on the said basis, has acquitted four of the co-accused. It is also contended that Padmaram (PW-1), Dhapli (PW-2), Balu (PW-3) and Mangla (PW-4), who were the so-called eye witnesses, have not supported the case of the prosecution and have turned hostile. It is further contended that in the FIR and the statements recorded under Sec. 161 Cr.P.C. of Malaram (PW-6) and Ganpat (PW-7) allegation of giving beating to the deceased was on all the accused and the allegation of throwing her in the well was on five of the accused, however, later on, the witnesses have changed their version and have levelled the allegation with regard to throwing the deceased in the well against the present appellants only.