GAUTAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals arise out of the judgment dated January 7,1991 passed by the Sessions Judge, Banswara, by which the learned Session Judge convicts and sentenced the appellant for the offence under Section 302 I.P.C.

(2.) Appellant Gautam alongwith Bhagu alias Bhagwati, Miss Lasi and Mrs. Jasoad W/o Ganpat, was tried by the learned Sessions Judge for the offence under Section 302 I.P.C. for committing the murder of Gordhan. The case of the prosecution is that on July 14,1986, at about 9.15 p.m., Gautam and Bhagwati Teli inflicted injuries by Kulhari on the mouth and neck of deceased Gordhan. Mst. Jasoda and Miss Lasi inflicted injuries Gordhan by Lathis. Initially the case was registered under Section 307 I.P.C, but Gordha died during investigation on July 23, 1986 at Ahmedabad and the case was therefor converted under Section 302 I.P.C. The prosecution, in support of its case, examined 2 witnesses. The accused did not examine any witness in their defence. The learned Session Judge, after trial, acquitted Miss Lasi and Smt. Jasoda of the offence under Section 30 I.P.C. The learned Sessions Judge, also, acquitted the accused Bhagwati alias Bhagu of the offence under Section 302 I.P.C. but convicted and sentenced him for the offence under Section 323 I.P.C. The learned Sessions Judge, however, found the accused appellant Gautam guilty under Section 302 I.P.C. and passed the sentence of imprisonment for life and a fine of Rs. 100/- and in default of payment of fine further to undergo one month rigorous imprisonment. Accused Bhagwati alias Bhagu did not file any appeal, but accuse Gautam, dissatisfied with the judgment dated January 7, 1991, passed by the learned Sessions Judge, Banswara, convicting and sentencing him for the offence under Section 302 I.P.C, preferred these two appeals. D.B. Criminal Appeal No. 133 of 1991 we preferred by the accused-appellant through jail while D.B. Criminal Appeal No. 61 of 199 has been filed by the accused- appellant Gautam through his counsel.

(3.) The nature of the evidence produced by the prosecution, consists of the evident of the eye witnesses, namely, PW 6 Kundanji, PW7 Nathu Teli, PW 8 Ganga Ram. PW 1 Dali Chand, PW 11 Kalawati, PW12 Laxmanji and PW 13 Manjula. PW 10 Dali Chand has not supported the case of the prosecution and, therefore, he was declared hostile. So far as the evidence of PW 6 Kundanji, PW 7 Nathu Teli, PW 8 Ganga Ram and PW 12 Laxman are concerned, the learned lower Court after appreciation of the evidence, came to the conclusion that these witnesses have not seen the occurrence and they are not the eye-witnesses to the occurrence but they came at the place of the occurrence immediately after the incident was over when the injured was lying on the ground. The learned Session Judge, however, believed the statements of PW 13 Manjula and to some extent to statement of PW 11 Kalawati, also. PW 1 Gautam Lal, PW 2 Rajendra Prasad and PW Mahaveer Prasad are the three Motbir witnesses to the various recoveries. So far as PW 4 Partu and PW 5 Poorabiya are concerned, they are the Motbir witnesses of the arre of accused Bhagwati alias Bhagu. PW 9 Bheriya is a Motbir witness to the arrest of Mi Lasi and Smt. Jasoda. PW 15 is Dr. Binayak Rao Patil, who was a Tutor in the Forensic Medicine Department in the B.J. Medical College, Ahmedabad, who conducted to post-mortem examination on the deadbody of deceased Gordhan. PW 18 is Dr. Om Dutt Mathur, who examined the injured Gordhan on July 14, 1986, at the General Hospital, Banswara and found five injuries on his person. The remaining are the police witnesses. PW 14 Lal Khan is the police Constable, who, on October 13, 1986, was posted at Police Station, Khamera and who took the sealed articles for F.S.L. examination to the State Forensic Laboratory, Jaipur, and handedover the same at the State Forensic Science Laboratory, Jaipur and got receipt Ex.P.17, PW 16 Dilip Singh was posted as Assistant Sub-Inspector at Police Station, Khamera, who initiated the investigation, arrested accused Gautam, prepared the arrest memo Ex.P.4, recorded the information1Ex.P.11 and recovered the axe in pursuance to the information Ex.P.4 PW 17 is Durg Singh, Station House Officer, in whose presence, the F.I.R. Ex.P.6 was recorded at Police Station, Khamera. He prepared the site plan Ex,P.2, recorded blood stained earth and plain earth, lathi Article 2 and got all these articles sealed and thereafter sent all these articles to the State Forensic Science Laboratory, Jaipur, and the report of the F.S.L. is Ex.P.12 PW19 is Narendra Mohan Sharma Deputy Superintendent of Police, who conducted the investigation as a complaint was received from the side of the complainant party that the investigation conducted by the Station House Officer was not fair and was not free from doubt.