SWAMI SARAN Vs. STATE

JUDGEMENT

(1.) - The two appeals in this case are directed against the judgment of the learned Additional Sessions Judge, Jaipur dated April 29,1961, convicting appellants Kanhaiya Lal and Swami Saran of offences under secs. 302 and 302/109 I. P. C. respectively. While Kanhaiyalal has been sentenced to imprisonment for life, Swami Saran has been sentenced to rigorous imprisonment for 10 years. Kanhaiya Lal and Swami Saran have filed jail appeals. A notice was issued to Swami Saran by an order of this court dated July 25,1961 to show cause why his sentence should not be enhanced so as to make it in accordance with the law. A separate case has been registered in that connection as criminal revision No. 242 of 1961. The two appeals and the revision will, in these circumstances, be disposed of together by this judgment.

(2.) MOHANLAL P. W. 1 married his son Sohanlal with Smt. Beena Devi P. W. 2 daughter of Gopi Nath P. W. 16 on December 13,1958. Accused Kanhaiyalal is the son of MOHANLAL's elder brother and he used to reside separately with his mother in Mohalla Telipara, Jaipur City, and MOHANLAL also used to reside in the same locality. The allegations of the prosecution are like this : Before marrying Smt. Beena Devi with Sohanlal, her father Gopi Nath obtained the horoscope of the accused Kanhaiyalal also, but as his horoscope did not tally, the matter did not proceed any further and Beena Devi was married to Kanhaiya Lal's first cousin Sohanlal. Kanhaiyalal, however, nursed a grievance on that account as he suspected foul play on the part of MOHANLAL in getting the proposal of his marriage with Smt. Beena Devi rejected by Gopi Nath His grievance continued even after Smt. Beena Devi's marriage with Sohan Lal and he used to make indecent overtures to her. Apart from his passion for Smt. Beena Devi, Kanhaiyalal also had an eye on the property of his uncle MOHANLAL. Sohanlal was studying in those days in the Maheswari High School, Jaipur, in the 7th class. He used to live with his father MOHANLAL. On the morning of February 14,1959 (Suraj Saptami day) Sohan Lal went to his school as usual wearing a black coat, a blue pant, a 'kathai' sweter, a pink silken shirt, a banian, shoes and 'longs'. There were morning hours for the school. His friend Swami Saran accused also went with him to the school and they persuaded Sohanlal to accompany them. They went to the shop of Nathumal P. W. 5 where they took betels cigarettes and match box. Latter, Nazir Khan P. W. 36 saw them going towards the hillock of Bichoon the same day while Sawai Singh P. W. 26 saw them near a well in village Mokhampura at about 3 p. m. Matadeen P. W. 16 saw them in Mahalla village thereafter. The same afternoon, Kanhaiya Lal took his food at the house of Smt. Keshar P. W. 7 in that village along with accused Swami Saran and Shohanlal. He borrowed Rs. 2/- from his aunt Smt. Durga P. W. 6. The accused returned with Sohanlal to Jaipur the same evening and they were taken from "panch Batti" road crossing to Bagroowalon ka rasta where Swami Saran used to reside, by Heera Lal. P. W. 39, in his ricksha. Swami Saran called his land-lord Bhonri Lal P. W. 29 on reaching his house and the latter came and opened the door. He gave the explanation to Bhonri Lal that all three of them were coming from Ajmer and were late because of the late arrival of the train. They then went to Swami Saran's room. Phool Chand P. W. 40 who was another tenant of Bhonri Lal, also saw the two accused and Sohan Lal at that time. It is alleged that the two accused committed the murder of Sohanlal that night by strangulating his throat with handkerchief Ex. , J. and piece of stick Ex. 1 and that they wrapped the dead body thereafter in the cover of Swami Saran's quilt Ex. K and placed it in the 'tibara' of Mahadevji's temple nearby. In the morning, Swami Saran's room was found locked and he was not seen at his house thereafter untill the police arrested him on February 18,1959. The dead body of Sohan Lal was recovered on the next day at the instance of Kanhaiyalal from the 'tibara'. Swami Saran was also arrested the same day.

(3.) WE shall first take up the case of accused Kanhaiyalal. It may be mentioned at the outset that learned Dy. Government Advocate has frankly stated that he does not rely on the confessional statement (Ex. P. 14) of accused Swami Saran to prove the guilt of Kanhaiyalal. The evidence against him, therefore, is that relating to the motive for the murder, the taking away of Sohanlal from the school on February 14, 1959, the presence of Sohanlal in the company of the accused thereafter, their having been last seen together until the midnight of that day in the house of Swami Saran accused, the denial by Kanhaiyalal of certain well established facts, his efforts to set up a false plea of alibi and the recovery of the dead body and the other articles at his instance.