RAM SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by appellant Ramsingh against his conviction for the offence Under Section 302 IPC and the sentence of imprisonment for life and a fine of Rs. 100/ - imposed on him for the said offence by the Additional Sessions judge, Jhalawar in his judgment dated November 30, 1973 in Sessions Case No. 40/1973. In the Sessions case aforesaid five persons, including the appellant were prosecuted in respect of charge Under Sections 148/302/149 and 323/149 IPC. The charge Under Section 302/149 IPC related to the murder of one Sultan Kanjar and the charge under Section 323/149 related to the injuries inflicted on the person of Smt. Khawasi (PW 1) wife of Sultan deceased. The Addl. Sessions Judge acquitted the other four co -accused, viz,, Bheru Singh, Mangilal, Motisingh and Nathu Singh of all the charges. The Additional Sessions Judge acquitted the appellant also of the charges Under Sections 148 and 323/149 IPC and while acquitting the appellant of the offence Under Section 302/149 IPC, he held that the appellant guilty for the offence Under Section 302 IPC.

(2.) THE case of the prosecution is that on 20th April, 1973. at about 1.30 p.m. Smt. Khawasi, wife of Sultan (deceased) (PW 1) lodged an oral report (Ex. P 1) at police station Gangdhar in district Jhalawar, wherein it was stated that on the morning of 20th April, 1974 the appellant came to her house in village Harnikheda and asked her husband to accompany him to receive the grain in lieu of the wages for working as Chowkidar and thereupon she and her husband went along with the appellant to Bharkhedi and reached there at about 8 a.m. The appellant took them first to the well. The other four co -accused were present there from before. They were armed with 'Kalpewali' Lathis and were taking liquor. As soon as she (complainant) and her husband reached there accused Mangilal asked them to sit down and asked for the return of the opium which had been snatched by them. Her husband expressed his ignorance about the opium. There upon all the accused persons started assaulting her husband and herself with fists and kicks and also forced him to take liquor and thereafter they tied her husband with a rope to the branch of a banyan tree and they assaulted him with 'Gandasi' and Lathis. In the said report Smt. Khawasi further stated that she raised an alarm and thereafter all the five accused persons assaulted her with 'Gandasi' and Lathis and threw her at a distance in the field. In the meanwhile her daughter Chameli (PW 2), her son Shantilal (PW 3), and Nathia Kanjar PW 4) reached there and any took her to Harnikhera and brought her to the police station. According to the said report Kalu Singh, Dulesingh and Amarsingh, who are related to the accused person, were present at their wells at that time and they had asked the accused persons not to assault her husband and herself and the accused persons did not pay any heed to that also. In the report it was also stated that her husband is laying tied to the branch of the banyan tree and that he may be killed. On the basis of the aforesaid report a case Under Sections 148, 342, 325, 330 and 307 IPC was registered and investigation was commerced. The investigation was conducted by Vijay Bahadur (PW 13) who was the SHO, Police Station Gangdhar on 20th April, 1973. The Investigating Officer reached the scene of the occurrence on 2nd April, 1973 and prepared the site plan (Ex. P 15). He also siezed the blood smeared earth from the field of Kalusingh vide memo (Ex P 19), a rope from the banyan tree vide memo (Ex. P 20) and two empty bottles of liquor and other articles vide memo (Ex. P 21). On 24th April, 1973, on the basis of information given by Chameli a dead body (skeleton) was found in the field of Raghunathsingh and it was seized vide recovery memo (Ex. P 24). After the recovery of the dead body, the memo of description of the dead body (Ex. P 18), the site plan of the place of the recovery of the dead body (Ex. P 16) were prepared. The clothes found on the dead body were seized vide memo (Ex. P 17) On the basis of the clothes found on the dead body it was identified as that of Sultan deceased and then inquest report (Ex. P 25) of the dead body was also prepared. The post mortem examination of the dead body was conducted by Dr. R.C. Dube, Medical Officer Incharge hospital, Gangdhar on 25th April, at 8 a m. According to the post mortem report (Ex. P 9) there was a transverse cut by a sharp cutting weapon about 2 ' in length over the right parietal bone of the head, a fracture of the mastoid bone of right side, transeverse cut by sharp cutting weapon about 1 1/2' over the lateral tubercity of the tibia bone, transverse cut about 1' by sharp cutting weapon over the mid of shine of tibia, a piece of fibula was attached at the lower l/3rd of tibia whose upper end was cut by sharp cutting weapon, on the right side, the second rib was cut by sharp cutting weapon, and on the left side the second and fourth ribs were broken and whole foot was absent from ankle joint. According to the opinion of the medical officer the cause of death was intra cranial heamorrhage due to head injuries or shock due to multiple injuries caused by sharp weapon. Dr. R.C. Dube bad also examined the injuries of Smt. Khawasi on 20th April, 1973 at 2 p.m. and had prepared the injury report (Ex. P 10). According to the said injury report Smt. Khawasi had a lacerated wound 2 1/2'x1/4'x1/4' over upper 1/3rd of the left forearm, a bruise 2' x 1/2' over right shoulder and swelling 1' x I' one inch below the little finger of right hand. The appellant was arrested on 1st May, 1973 and the other accused persons were arrested on various dates from 1st May, 1973 to 16 May, l973. On the basis of information given by accused Nathusingh, Motisingh and Mangilal, two 'Gandasis' and a Lathi were recovered. After completing the investigation the police filed a charge sheet against all the five accused persons in the court of Munsif Magistrate Bhawani Mandi, who, after holding an enquiry, committed them for trial to the court of Sessions after framing charges Under Sections 148, 302/149& 323/144 IPC. The said charges were read over to the accused persons by the Addl. Sessions Judge, Jhalawar. The accused persons pleaded not guilty and claimed to be tried.

(3.) THE Additional Sessions Judge held that the skeleton that was recovered on 24th April, 1973 was that of Sultania and that there were sharp cuts indicating that the deceased must have been hit by sharp weapon for causing his death. The Addl. Sessions Judge, also held that from the evidence of Smt Khawasi (PW 1), Chameli (PW 2) and Shantilal (PW 3) it was established that the appellant had come to call the deceased and that the deceased as well as Smt. Khawasi had accompanied the appellant to his field for the purpose of collecting grain in lieu of wages for working as chowkidar. The Addl. Sessions Judge was also of the view that from the evidence of prosecution witnesses 1, 2, 3 and 4 it was established that the appellant had assaulted the deceased. The Additional Sessions Judge was however, of the view that the participation of the other co -accused in the occurrence had not been established beyond doubt. The Addl. Sessions Judge also disbelieved the evidence with regard to the recovery of the two 'Gandasis' and the Lathi at the instance of some of other co -accused parsons on the view that Bhawanisingh (PW 12), who was attesting witness of the recovery memos, has stated, during the course of cross examination, that no recovery was made in his presence. In view of the findings aforesaid the Addl. Sessions Judge acquitted all the accused persons of the charges levelled against them. The Addl. Sessions Judge also acquitted the appellant of the charges Under Sections 148, 302/149 and 323/149 IPC. The Addl. Sessions Judge however, convicted the appellant of the offence Under Section 302 IPC on the view that from the evidence of prosecution witnesses 1, 2, 3 and 4 it was established that the deceased had died on account of injuries inflicted by the appellant. The Additional Sessions Junge has, however, held that the weapon by which the injuries Were caused was either 'Pharsi' or Lathi and that it is not established as to what was the weapon in the hand of the appellant at the time of the incident. Feeling aggrieved by the aforesaid conviction and sentence, the appellant has filed this appeal.