CHATARA Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed from Jail by the appellant Chatara and it is directed against the judgement dated 12th February, 1982 passed by the Sessions Judge, Banswara in Sessions case No 25/81. In the aforesaid Sessions Case, two persons, namely, the appellant, Chatara and one Gautam, were prosecuted. The appellant was charged with offences under Section 395 read with Section 397, Section 457 and Section 324 IPC Accused Gautam was charged with offences under Section 395 read with Section 397, Section 457 and Section 323 IPC. The Sessions, Judge, by his judgment aforesaid, convicted the appellant of the offences under Sections 392 and 324 and accused Gautam of the offence under Section 321 IPC. The said accused persons were acquitted of the other charges. The appellant has been sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 100/ - and in default of payment of fine to undergo rigorous imprisonment for one year under Section 394 IPC. He has been sentenced to rigorous imprisonment for three months and to pay a fire of Rs. 50/ - and in default of payment of fine to undergo rigorous imprisonment for seven days under Section 324 IPC. Accused Gautam has been sentenced to simple imprisonment for one month and fine of Rs. 50/ - and in default of payment of fine to undergo simple imprisonment for seven days under Section 323 IPC.

(2.) THE prosecution of the accused persons for the offences referred to above relates to an incident, which is alleged to have taken place in the night intervening 19th and 20th May, 1980 outside the house of one Soma (PW 2) in village Patan. The case of the prosecution is that Soma (PW 2) his wife Smt. Dalla (PW 7) and their three children were sleeping outside their house on the night intervening May 19 and 20, 1980 and that at about 2.30 a.m. Soma woke up on hearing some foot steps and he saw 5 -6 persons standing near his cot on the side of his head. Out of the aforesaid persons, Soma could identify the appellant and Gautam because it was a moonlight night. When Soma got up, Gautam threw a stone towards him which hit him in the right temporal region Gautam, thereafter, hit a lathi blow on the back of Soma and thereupon Soma ran shouting and stood a distance of about 100 ft. Gautam was armed with a lathi and the appellant was armed with a knife. The appellant cut the golden "Bore" (head ornament) of Smt. Dalla with the knife and inflicted injuries with the knife on the right wrist as well as palm of Smt. Dalla when she tried to resist. Thereupon, both the accused persons ran away. After sometime, Lalu (PW 6) and Phula (PW 5), who have their houses nearby arrived at the spot and Soma along with Lalu and Dhula went to the house of Kalu Sarpanch (PW 4) and narrated to him the incident and Kalu asked them to search for Gautam and thereupon they went to the house of Gautam but he was not found there. Soma informed Kalu about it. Kalu told them that he would come to Soma's house in the morning. In the morning, the villagers collected near the house of Soma and Gautam was also present there but he kept quiet Soma and Smt. Dalla then went to the hospital at Banswara where they were examined by Dr. P.L. Bhardwaj (PW 1) on 20th May, 1980 vide injury reports Ex. P. 1 and Ex. P 2. Injury report Ex P. 1 relates to Soma and shows that a contused wound was found on the right temporal region Injury Report Ex. P 2 shows that an incised wound was found on the right wrist of Smt. Dalla. The FIR (Ex. P. 5) about the incident was lodged at P.S. Kalinger by Dhula on 20th May, 1980 at 6.30 p.m. and on the basis of the said FIR, a case was registered and investigation was started. The appellant Chatara was arrested on 5th November, 1980 and on the basis of the information (Ex. P. 8) given by the appellant on 10th November, 1980 that he had sold the golden "bore" of Smt. Dalla to Devilal Sunar, the police went to the house of Devilal Sunar and recovered the gold nuggat weighing five grams on 13th November, 1980 vide Recovery Memo (Ex. P. 9). After completing the investigation, the police submitted a challan against the appellant and Gautam and two other persons Mangala & Gavaji. Accused Mangala and Givaji we'e, however discharged since there was no evidence against them and the appellant and Gautam were tried for the offences referred to above.

(3.) THE Sessions Judge has held that from the evidence of Soma & Smt. Dalla (PW 7) which finds support from the evidence of Dhula (PW 5), Lalu (PW 6) and Kaluram (PW 4), it is established that Gau am and the appellant had come to the house of Soma a(sic)d had inflicted injuries on the; persons of Soma and his wife Smt. Dalla and that Gautam was armed with a lathi and appellant was armed with a knife and th(sic) t the appellant had cut the golden "bore" from the head of Smt Dalla with the knife and had inflicted in pries on her person with the knife. The sessions Judge was of the view that (sic) established that the golden nuggat which has been recovered from Devilal Sunar has been prepared by melting the golden "bore" of Smt. Dalla and that the aforesaid recovery of the golden nuggat (sic)ooes not assist the prosecution case. The Sessions Judge was, however, of the view that from the evidence of Soma and Smt. Dalla, it has been established beyond reasonable doubt that on the night of the incident, six persons had come to their houses, and out of them, Soma and Smt. Dalla could identify appellant and Gautam and that soon after the incident, Dhula and Lalu had arrived at the scene and Soma and Smt Dalla had narrated the incident to them and also mentioned that they had identified the appellant and Gautam and this fact was also -corroborated by the evidence of Kalu Ram (PW 4). According to the Sessions Judge, the presence of the Appellant and Gautam at the scene of the occurrence was, thus, established from the evidence of Soma and Smt. Dalla, Lalu, Dhula and Kaluram and that there was no reason not to accept their testimony. The Sessions Judge also held that from the evidence of these witnesses, it is also established that accused Gautam had caused the injury on the right temporal region of Soma by stone and that the appellant had cut the golden "bore" from the head of Smt. Dalla with a knife and while he was doing so Smt. Dalla put up resistance and the appellant inflicted injury on the wrist of the right hand of Smt Dalla with a knife and that the aforesaid injuries that were inflicted on the persons of Soma and Smt. Dalla are proved by Dr. P.L. Bhardwaja (PW 1), who has also proved the injury reports Ex P. 1 and P. 2 The Sessions Judge was, however, of the view that since the incident had taken place out -side the house of Soma and Smt. Dalla, it was not established that all the accused persons had gone there with the object of committing the(sic)f or dacoity and the Sessions Judge -was also of the view that since accused Gautam had only caused injury to Soma and had not given any assistance to the appellant in the cutting of the "bore", it could not be said that all the accused persons had come with the object of cutting the "bore" of Smt. Dalla. The Sessions Judge, therefore, convicted the appellant under Sections 392 and 324 and accused Gautam under Section 323 IPC. As regards the charge under Section 457 IPC, the Sessions Judge held that Soma and his wife Smt. Dalla as well as the children were sleeping outside their house and, therefore, an offence under Section 457 had not been made out. The Sessions Judge, therefore, acquitted the accused persons of the offence under Section 457 IPC.