KAN NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the judgement of learned Sessions Judge, Jodhpur dated 13/10/1984 by which accused appellant Kan Nath has been convicted for having committed offence under Sec. 302 IPC and has been sentenced to life imprisonment.

(2.) THE prosecution case as disclosed in the F. I. R. lodged by Devnath on 28. 5. 82 is that deceased Gulab Nath, brother of complainant, had left his house alongwith his son Kan Nath, accused, on Sunday 23. 5. 82. On Monday evening, Kannath told Devnath that he has admitted his father Gulab Nath at Nimba Nimbdi hospital. Next day, he told that Gulab Nath has been admitted at Paota dispensary and yet third day, he informed that Gulab Nath has been admitted at Mahatma Gandhi hospital which created doubt in the mind of complainant. He, therefore, moved to find out about the truth about Kan Nath's statement first to M. G. Hospital, then to Paota dispensary and then to Nimba Nimbdi dispensary but did not find his brother admitted there. While returning to village Paldi from Nimba Nimbdi, he saw on the hillock 'jutiya; (shoes) of his brother and on going further, he saw that a scattered cores was lying, neck was severed from rest of the body and animals had torn the corpse in separate parts. In the night, he informed Birad Nath and Kalu Nath and in the morning, he has come to report about it that his brother has been murdered. In his statement, recorded, Dev Nath suggested that Kan Nath and his father Gulab Nath were not keeping good terms because about two months back, Kan Nath had returned from his aunt's house after stealing articles worth Rs. 3000/- and Gulab Nath has taken him to task and told that he (Gulab Nath) will have to make payment to his sister for which his field may have to be sold. On account of that, Kan Nath had also fought with his sister Oma.

(3.) IF the evidence relied on by the trial court for holding that the circumstance of last seen stands proved on record, is examined closely, we are of the opinion that the finding cannot be sustained. The trial court has relied on the statements of PW 1 Devnath, PW 6 Deep Giri and PW 10 Smt. Antra for the purpose. PW 1 Devnath while in the examination-in-chief states that Kan Nath had taken Gulab Nath to Mandore by saying that calves have been purchased and he may see the same on 23. 05. 1982 at about 11 A. M. but in the next breath, he admits that two have neither gone in-front of him nor he has seen them going together. While at one place in the examination-in-chief, he says that when Kan Nath returned in the evening, he asked him about the whereabouts of Gulab Nath and on his asking, Kan Nath told him that Gulab Nath has been admitted to Nimba Nimbdi hospital and on next day that is to say on 24th, he stated that Gulab Nath has been admitted to Paota dispensary and on third day i. e. on 25. 05. 1982, he stated that Gulabnath has been admitted to M. G. hospital but in his examination-in-chief at a later stage, he clearly states that since Kan Nath had taken Gulab Nath on Sunday morning, he has not returned home. This not only cuts across his testimony as to the circumstances of last seen but to the very substratum of his story that Kan Nath had given him three versions about admittance of his father Gulab Nath at three different hospitals. When Kan Nath had not returned home since Sunday, there was no occasion for him to have made enquiry from Kan Nath and to attribute three different statements to him. P. W. 6 Deep Giri does not inspire any confidence about his statement that he had seen Gulab Nath and Kan Nath together. Firstly, he does not give any time or date as to when he has seen Gulab Nath and Kan Nath together. The statement of PW 6 Deep Giri does not lead to any inference that he had seen accused Kan Nath and deceased Gulab Nath together on 23. 05. 1982. While prosecution case is that Kan Nath has allured his father to Mandore on the pretext of showing the newly purchased calves, PW 6 Deep Giri in his statement says that Gulab Nath has told him that he alongwith his son, is going to hospital. Even this statement is found to be contrary to his statement given in the police when confronted, In his cross-examination, he has admitted that he has come to give evidence at the instance of Kalu Nath PW 2 and Devnath PW 1. Devnath is the person who has set the entire prosecution on motion by indicating that the skeleton found by him is corpse of Gulab Nath which, we have already discussed, was not in a state of identifiable position as per the post mortem report. PW 10 Smt. Antra, the remaining witness on which the finding of last seen circumstance has been arrived at, also do not support the prosecution on this issue. She, in her examination-in-chief, has categorically stated that at the time when her husband Gulab Nath and son Kan Nath are stated to have gone together out of the house, she was not at home and this fact about their going together was informed to her also by none other than Devnath PW 1. As we have discussed above, PW 1 Devnath had also not seen Kan Nath and Gulab Nath going together and he could not have known about this fact unless he has met Kan Nath on his return which according to him, he did not return. Therefore, in our opinion, none of the statements relied on by the learned Sessions Judge establishes the circumstances that Gulab Nath and Kan Nath were last seen together on 23. 5. 82, Apart from the evidence as discussed above, we have also pointed out above that last seen circumstance is also not corroborated by the post mortem report Ex. P. 30. While according to Ex. P. 30, the death must have been caused on or about 14. 05. 1982, the prosecution has tried to prove that Gulabnath was seen alive on 23. 05. 1982. IF the prosecution case is correct about the last seen circumstance then the corpse on which post mortem was conducted, could not have been of Gulab Nath who admittedly was alive on 23. 5. 82 and if the identity of corpse is believed to be by Devnath then the story of Gulab Nath having been last seen with the accused Kan Nath on 23. 5. 82, falls to the ground. This is a serious infirmity in the case of prosecution.