MISHRIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Mishriya, the appellant in this appeal was tried by the Sessions Judge, Balotra in respect of offnces under section 302, 3 7, 458 and 326 Penal Code The charge under section 302 I.P.C. related to the murder of Bhara, father of the appellant and Smt. Meera,the grand-mother of the appellant. Charges under sections 307, 458 & 326 Penal Code related to the assualt by the appellant on Lachiya (P.W. 12) with a 'kulhari'. The Sessions Judge convicted the appellant of all the charges and has sentenced the appellant to imprisonment for life u/s 302 IPC, rigorous imprisonment for seven years under section 307 IPC, rigorous imprisonment for five years u/s 326 Penal Code and rigorous imprisonment for five years u/s 326 IPC. All the sentences have been ordered to run concurrently. The occurrence as alleged by the prosecution had taken pace in the night intervening April 4 and 5, 1977.

(2.) The case of the prosecution is that on 5th April, 1977 at 12.30 p m. Shivji (P.W 1) lodged a report (Ex. P. 1) at police station Siwana. In the said report it was stated that in the night between 2-3 a.m. when he was sleeping in his house, he heard sounds of 'Mare-re, Mare-re' from towards the house of Lachiya. Since he wife of Lachiya was ill and thinking that she was dead he went to the house of Lachiya and found that Lachiya and the appellant were fighting with each other and that Shiviya (P.W. 4) and Nagiya (P.W. 3) were also present there and that Shiviya (P.W. 4) snatched the 'kulhari' from the possession of the appellant and thereafter the appellant was tied with a 'safa'. Lachiya had injuries on his back as well as on his throat and on being asked he stated that some quarrel had taken place between Bhera and the appellant with regard to 'biedi' and sometime earlier he (Lachiya) had got up to give medicine to his daughter and he heard sound of Bhera crying 'Mare re' and that he went towards the house of Bhera and saw the appellant assaulting Bhera with a 'kulhari' and Bhera was lying in front of his house. Thereupon he raised an alarm and the appellant run after him but he entered into his house & appellant also followed him & inflicted an injury on his throat with a kulhari' as a result of which he fell down. When he stood up the appellant again inflicted an injury with a 'kulhari' on his back. According to the F.I.R. Lachiya caught hold of the appellant from behind & tried to snatch the 'kulhari'& during this struggle they came out of the house & Lachiya & his wife raised cries. In the F.I.R. it was also stated that the appellant was telling loudly to everybody that he had killed his father & his grand mot,her with the 'kulhari'. Smt Meera was found dead in the courtyard of the house and Bhera was found dead outside the house. In the F.I.R. it was also stated that Suwadi, daughter of the appellant and Kharkali, his sister were crying and Suwadi was saying that the appellant had killed 'Male and 'Baa'. In the F.I.R. it was also stated that the Mukbiya of the village was called and thereupon Shivji went to the police station for lodging the report. On the basis of the aforesaid report a case under sections 302,458 and 307 Penal Code was registered and Shri Devilal (P.W. 16). S.H.O. police station Siwana commenced the investigating. The Investing Officer prepared the site plan (Ex. P. 15) and the memo of the site inspection (Es. P. 8). He also prepared the 'Farad surat Hal Lash' of deceased Bhera and Smt. Meera vide memos (Ex. P. 9 and P 10).The blood stained clothes of Bhera were seized vide seizure memo (Ex. P. 16) and the blood stained clot' es of Smt. Meera was seized vide seizure memo (Ex. P.17). The post-mortem examination of the dead bodies of Bhera and Smt. Meera was conducted by Dr. Om Prakash Vyas (P.W. 14) Medical Officer In-charge, Balotra vide post mortem reports (Ex P. 4 and P. 5). According to the post-mortem report (Ex. P 4; deceased Bhera had five injuries on his person caused by a sharp edged weapon. Injury No. 1 was a big wound extending from 2" below lobule of left ear extending on back of neck and right side upto right mostoid process. Cervical vetebral column was cut through, left mendible was broken in pieces. Margin of lower flap of skin of the wound was sharp. Margins of tuner flap sharp and irregular. The other wounds were on the left humerus bone right fore arm cutting through right ridious bone, and right side of chest 8" long vertically X 6" vide horizontally cutting right clavicle & upper four cartilages and rupturing right lung. According to the medical officer. Bhera had died instantaneously because of the injury to vital organ like spinal cord, right and cervical vessels leading to shock and death. The post mortem report (Ex. P. 5) show that Smt. Meera had a big gaping wound 8" long horizontally x 3" wide laterally on right side and 4" wide at centre cutting through trachea and big cervical vessels. Muscles of cervical region and big vessel-sure cut through and wound extended posteriorly up to servical region. According to the medical officer the deceased had died instantaneously because of injuries to vital organ like trachea cutting it through and through end big vessels of cervical region leading to shock & death The injuries of Lachiya (P.W. 12)were medically examined by Dr. Om Prakash Vyas vide injury report (Ex P. 6). According to the said injury report Lachiya had two incised wounds, one of them was grievous and the other simple. The grievous injury was an incised wound 3 long x 3/4" wide 1" deep obliquely directed laterally. The wound was horizontally placed on right side of neck at lower end, lateral and of wound extending up to right clavicle. A bony point separate from clavicle was present near sternal end of clavicle and there was slight irregularity in the continuity of right clavicle. The other wound was on the right upper inter scapular region. The appellant was arrested vide memo of arrest (Ex. P. 14) and the clothes of the appellant was seized vide memo (Ex. P. 11). The 'kulhari' was produced before the Investigating Officer by Nagiya and was seized vide seizure memo (Ex. P 13). After completing the investigation the police filed a charge against the appellant in the court of Munsif and Judicial Magistrate Balotra and the case was committed for trial to the court of Sessions and the appellant was tried by the Sessions Judge, Balotra. He framed charges in respect of offences under section 302, 307, 326 and 458 WC. When the charges were read over to the appellant on 30th May, 1977, the appellant admitted that he had killed his father and his grand mother and had caused injuries on the person of Lachiya and further stated that he had caused the injuries with a 'kulhari. He also stated that he did not want a trial and did not want to examine the witnesses. In view of the seriousness of the charges the Sessions Judge however, proceeded to hold the trial and examined the witnesses.

(3.) The prosecution, in support of its case. examined sixteen witnesses out of whom (P.W. 1) Shivji bad lodged the F.I.R., Tikma (P.W. 2) arrived at the scene of the occurrence shortly after the incident, Nagiya (P W. 3) and Shiviya (P.W. 4) had arrived at the house of Lachiya at the time when Lachiya and he appellant were grappling and snatched the ace from the possession of the appellant and tied him with a 'safa'. Kutnari Suwadi (P.W. 5) is the daughter of the appellant. Chandani (P W. 6) is the wife of Lachiya. Sawa (P.W. 7), Prabhulal (P W. 8), Shivasingh (P.W. 9), Bhanwarlal (P.W. 10) and Misariya (P.W. 11) had arrived at the scene shortly after the occurrence. Lachiya (P.W. 12) is the person who had sustained injuries at the hand of the appellant. Purshottom (P W. 13) did not support the case of the prosecution and was declared hostile. Dr. Om Prakash Vyas (P.W. 14) is the Medical Officer who conducted the post-mortem examination of the dead bodies of Bhera and Smt. Meera and also examined the injuries of Lachiya and has proved the post mortem reports (Ex. P 4 and P 5) and injury report (Ex P. 6). Narpatraj (P.W. 151 is the attesting witness of the various memos prepared in the course of investigation Devilal (P.W.16) was the S.H O , police station Siwana, who conducted the investigation of the Lase. Kachab Singh (P.W. 17) was the head constable who was posted at police station Siwana and who bad recorded the F.I.R. lodged by Shivji. The appellant, in his statement recorded u/s 313 Cr. P.C. denied the prosecution case. He denied that he had committed the murder of his father Bhera and grandmother Smt. Meera with a 'kulhari' or had inflicted injuries on the person of Lachiya with the 'Kulhari'.