MOHANSINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE above two appeals arise out of the judgment dated January 7, 1977 of the learned Sessions judge, Bhilwara where by the appellant Mohansingh in Appeal No. 30 of 1977 and the accused Saniya in Appeal No. 71 of 1977 were convicted of the offences Under Sections 148 and 302, IPC and the appsllants Najariya, Bhagwaniya, Kaniya, Manohariya and Baliya were convicted of the offences Under Sections 147 and 302/149, IPC Under Section 148, IPC the appellants Mohansingh and Saniya have been awarded 2 years' rigorous imprisoment each and Under Section 302, IPC imprisonment for life. The other appellants in Appeal No.71 of 1977 were awarded 1 year's rigorous imprisonment for the offence Under Section 147 and imprisonment for life Under Section 302/149, IPC. The other two accused -appellants namely, Heeriya and Rodiya were acquitted of the offences Under Sections 147 and 302/149, IPC.

(2.) THE prosecution case as unfolded during the trial, in brief, is that on 26.12.1975 at about 7 or 7.30 am. Mst. Bhanwarkanwar (PW 6) was in the Kitchen of her house in village Sardarji -ka -Kheera. Her husband Nand Singh (deceased) was also in the house. Her husband was sitting out side the Kitchen on a cot. In the other room, her children, sister and her husband's younger brother's wife Mst. Sajjan Kanwar (P.W 7) aged about 16 years were there. Ram Singh (P.W 5) aged about 30 years, the brother of Mst. Sajjankanwar was also in the boundary of the house. Gordhansingh (PW 8) aged about 18 years, the younger brother of Nandsingh had gone to the hilly forest for bringing fuel wood. It is said that the accused -appellant Mohansingh the maternal uncle of Nandsingh, accompanied with the eight accused -persons, who were 'Kanjar' by caste, came to the house of Nandsingh. First they pelted stones at Ramsingh and towards the house. Nandsingh, thereupon, entered into the kitchen and the kitchen was bolted from inside. Thereafter, they entered into the verandah of the houae. Mohansingh shouted for Nandsingh to come out. Mohansingh was armed with a 'Kulhari' and other Kanjars were armed with farsa and lathis, They started knocking the door of the kitchen with force Mst. Sajjankanwar (P.W.7) had also bolted the reom form inside. It is said that Mst. Bhanwarkanwar (PW. 8) then called Mst. Sajjan Kanwar (PW. 7) to open the door Thereupon, Mohansingh and Kanjars entered into that room, in which Mst. Sajjankanwar was there. They damaged the belongings lying in that room A blow was wielded on Sajjan Kanwar by Mohansingh, which was warded off by one kanjar saying not to wield a lathi on a woman Thereafter, the accused -persons came out from that roon and then asked, where Nandsingh is Nandsingh concealed himself under the cot, Mst. Bhanwarkanwar (PW 6) then uttered that he had gone to attend the court. The accused Najariya, thereupon, said that Thakurani referring Mst. Bhanwarkanwar, does not speak a lie. Mohansingh then said that he had seen him sitting on the cot. The accused Bhagliya then told after peeping into the window having iron bars that Nandsingh is sitting beneath the cot, it is alleged that accused Mohansingh then went to fetch one iron 'subbal' and then with the use of sabbel, the door and its frame were broken, whereby, the door fell down. Nandsingh came out of the kitchen. Soon thereafter, he was caught hold of by the accused Najariya, Bhagwaniya, Saniya and Manohariya. At some distance of the house, the accused Mohansingh inflicted a blow on the head of Nandsingh with Kulhari and the accused Saniya inflicted a blow on his neck with farsi, Mohansingh and Saniya with their weapons and the other accused -persons with lathis then inflicted the blows The accused -persons then stated from the place of occurrence. But, it is said that the accused Mohansingh called them and asked them to threw away the body in the well. Thereupon, the accused Heeriya. Saniya, Kaniya and Mohansingh carried the body of Nandsingh end threw it in the well which is situated just close to the kitchen. The accused -persons thereafter left the place. Mst. Bhanwarkanwar (PW 6) then went to the hilly forest and informed of the occurrence to Gordhansingh (P.W.8) In the meantims, Ramsingh had gone to the village and called some villagers. One Jagannath Bali was sent it to the police station, Mandalgarh at a distance of six miles, from the place of the occurrence with a written report but it appears that, that report was not entertained. Two constables, however, visited the place of occurrence Thereafter, Gordhansingh (P W. 8) accompanied with Ramsingh, went to the police station, Mandalgarh and lodged a report at 5.15 p.m. on that very day. In the report Ex p/8 lodged by Gordhansingh (PW 8) has stated that they had gone to the hilly forest for fetching fuel wood. His brother's wife Mst. Bhanwarkanwar (P.W. 6) came from the house raising shrieks and informed that his brother had been killed by Mohansingh, Kaniya, Rodiya, Saniya, Bhagwaniya and Heeriya with lathis, farsi and Kulhari and they had thrown the dead body in the well. At that time, Ramsingh his bother in law (wrongly stated to be his brother -in -law) was also there at the house. He also stated that he will produce the witnesses on the spot. His brother has been thrown in the well after killing him due to enmity. A case Under Section 302, IPC was registered by Gyansingh Verma. Head Constable (P. W. 4). He recorded the statement of Gordhansingh (P.W.8) and visited the place of occurrence He interrogated the witnesses in the night and in the morning, he prepared the site -note Exp/9 and site -plan Ex p/10 and conducted the spot investigation The dead -body of Nandsingh was taken out from the well and panchnama was prepared (Exp/11). Blood -stained stones and Takaliya were seized vide Ex p/ 13 and Ex.p/14 Thereafter he handed over the investigation to the Station House Officer Shri Chhaganlal (P.W. 9) on 26 -12 -1975, the Station House, Officer had gone to Bhilwara on Government duty. On return from Bhilwara he visited the site on 27 -12 -75 and he also took Dr. Dwijendra Mohandas (P.W. 1) with him, who conduced the autopsy on the dead -body of Nandsingh. The clothes of the deceased Nandsingh namely, dhoti and sweater stained with blood, were seized and packed vide Exp/6. He arrested Mohansingh on 29.12.75 and he gave information Ex.p/11 in respect of his kulhari. On his information and at his instance a kulhari was recovered vide Exp/22. Iron Sabbal was produced by Nahrsingh, which was seized vide Ex p/23 The other accused were arrested. On 2.1.1976 the accused Saniya gave information regarding his farsi Ex.p/2 and got the same recovered vide memo Ex.p/3. on 11.1976 the accused Mohansingh gave information Ex p/25 in respect of his blood -stained shirt and dhot iand he got the same recovered vide memo Ex.p/2 lathis were also produced by the accused Heeriya Kaniya, Bhagwaniya and Manohariya. After completion of the investigation, charge -sheet was presented against the nine accused -persons who were ultimately tried by the learned Sessions Judge, Bhilwara. The accused Mohan singh and Saniya were charged for the offences Under Sections 148 and 302. IPC simpliciter and rest of the acccused -persons were charged for the offences Under Section 147 and 302/149, IPC. The accused -persons pleaded not uilty to the charges and claimed to be tried. At the trial, the prosecution examined in all nine witnesses. The statement of the accused -persons were recorded, in which, they denied the prosecution case. In defence, the accused persons examined P.W. 1 Dr. Dwijandra Mohandas. After hearing the arguments, the learnrd Sessions Judge recorded the convictions and sentences of the 7 accused -persons as aforesaid and entered acquittal of the two accused persons as stated above.

(3.) BEFORE examining the case and dealing with the arguments advanced before us, it would be proper to notice the iujuries, which have been found by Dr. Dwijendra Mohandas (P.W 1) on the persons of Nandsingh deceased. Dr. Dwijendra Mohandas conducted the autopsy at 12.30 p.m. on 27.12. 1975. He found the following 25 external injuries on the person of Nandsingh.