BITTHAL PRASAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the Judgment dated 6-9-1989 passed by learned Sessions Judge, Jhalawar, whereby he convicted the accused appellant of offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fins, of Rs.500/- (Rupees five hundred), in default of the payment of fine the appellant was directed to furthe undergo one year's RI.

(2.) The facts giving rise to this appeal are that one Radhey Shyam Chouhan (PW-6) recorded the statement of injured-Bakhshu S/o Shri Ram at the Primary Health Centre, Manohar Thana, and on the basis of this "parcha bayan" (Ex.P/6), a first information report No. 48 of 1988 registered at Police Station Manohar Thana, wherein Bakhshu, in his statement, stated that half an hour before he was coming to the market frem his house; under a pipal tree near the house of Baluji Mehar accused appellant- Bitthal Prasad gave a spear blow from sharp edged side in his stomach due to previous enmity as a result of which he had sustained grievous injury. He has stated that on the spot 'Pipaliwali' lady named Kasturi Bai alongwith one more lady were present. After recording the aforesaid statement the case was registered for offence under Section 307 IPC and investigation was commenced. It may be pertinent to mention here that the time of incident recorded is between 9.00 p.m. to 10.00 p.m. on 29-5-1988 and the first information report had been taken down at 11.30 p.m. while the statement was recorded at 10.25 p.m. at Primary Health Centre. It may also be observed that no Medical Officer was available, hence the statement is recorded in presence of one Balkishan. Shri Radhey Shyam Chouhan, S.H.O., thereafter handed over the investigation to Shri Nana Kishore Verma, S.I. (PW-11) who prepared the site plan (Ex.P/1) and recorded the statement of Kasturi Bai. He also recorded the statement of Ratan Bai (PW-7) W/o Bakhshu (deceased) and Kanhiya Lal (PW-9) S/o Bakhshu- (deceased). He also recovered a 'trishul' on the information furnished and at the instance of the accused appellant. After completing investigation, he submitted a charge-sheet in the Court of learned Munsif and Judicial Magistrate, Aklera (Jhalawar) for offence under Section 302 IPC who committed the accused to the Court of Sessions, Jhalawar. The learned Sessions Judge framed charge for offence under Section 302 IPC to which the accused pleaded not guilty and claimed to be tried. Prosecution thereafter examined as many as 11 witness in support of its case and thereafter the statement of the accused was recorded under Section 313 Cr, P.C. Accused examined one Mohan Lal (DW-1) as the defence witness.

(3.) The prosecution evidence consisted of the direct evidence as well as the circumstantial evidence. The direct evidence produced was that of Mu. Ratan Bai (PW-7), Mu. Kasturi Bai (PW-8) and Kanhiya Lal (PW-9), and the circumstantial evidence was the recovery of 'trishul' and the dying declaration of the deceased (Ex.P/6) recorded by Shri Radhey Shyam Chouhan (PW-6), S.H.O. The learned Sessions Judge disbelieved all the three eye witnesses who also did not place reliance on the recovery of the weapon of offence but relying on the dying declaration, he convicted and sentenced the accused appellant as indicated above.