BHERA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellant Bhera has filed this appeal against his conviction by the Sessions Judge, Udaipur for the offences under sections 302 and 330 Indian Penal Code. The appellant has been sentenced to imprisonment for life under section 302 Indian Penal Code and to rigorous imprisonment for five years and to pay a fine of Rs. 500/- and in default of payment of fine to undergo section 330 Indian Penal Code.

(2.) The aforesaid prosecution of the appellant relates to the murder of one Bharta who happened to be the father-in-law of the appellant on the night intervening May 5 and 6, 1976. The case of the prosecution is that the deceased Bharta used to stay alone in his field in village Canawal. On the evening of 5th May, 1976 Bhagala the grandson of the deceased had gone to the field of the deceased with his meals and returned back. On the morning of 6th May,1976 when Bhagala went to the field of the deceased with the meals he found him lying dead outside the house. He thereupon informed Kika (P.W. 1) and then Kika arrived at the house of the deceased and thereafter a written report (Ex. P. 1) was ascribed by Manohar Singh and Kika alongwith three other persons went to police station Sayara and lodged the said report at police station Sayara on 6th May, 1976 at 10 p.m. On the basis of the arofesaid report proceedings under section 174 Criminal Procedure Code were commenced and Shri Ramanlal Head Mohrir, Incharge police station Sayara visited the scene of the occurrence. After visiting the scene of the occurrence and after preparation of the inquest report (Ex. P. 12) and after recording the statements of Bhagala and Smt. Manki, the police officer arrived at the opinion that deceased Bharta had been killed in the night intervening between 5th and 6th May, 1976 by strangulation and that his buffalo and a bullock were removed and certain articles from his house had also been removed. Thereupon Shri Ramanlal registered a case under section 302, 460 and 380 Indian Penal Code and commenced the investigation. He prepared site plan (Ex. P. 3) and the memo of site inspection (Ex. P. 4). The autopsy of the dead body was conducted by Mr. Mushtaq Ali (P.W. 28), medical officer, Primary health center, Sayara on 8th May, 1976 at 1 p.m. and he prepared the post mortem report (Ex. P. 13). Accoding to the post mortem report the cause of death of the deceased was due to asphyxia as a result of throttling. The case of the prosecution is further that the appellant alongwith his son Amba was staying in village Machin and that the appellant was arrested in connection with the case and for the purpose of getting his released one Bishan Singh (P.W. 3) had incurred an expense of Rs. 180/- which amount was being demanded by Bishan Singh from the appellant and that the appellant had briyght one buffalo and one bullock in village Machin and had told Bishan Singh that he would repay the money to him by selling the said buffalo and bullock. The case of the prosecution is furthert that Galla (P.W. 29) who happens to be the other son-in-law of the deceased, came to Machin and told the people that the appellant had stolen the bullock and the buffalo belonging to deceased and had also committed his m8urder. Thereupon the appellant was asked about it and in the presence of number of villagers including Bishan Singh (P.W. 3), Amara (P.W. 14). Chokha (P.W. 15) Deva (P.W. 17), Galla (P.W. 29) and the appellant made a confession that he had killed his father-in-law and had stolen his buffalo and bullock. The appellant was then handed over to Bhanwar Singh (P.W. 32), a constable attached to police outpost Machim, who took the appellant to police station Khannpur where he was arrested vide memo of arrest (Ex. P. 5) dated 10th May, 1976, the bullock and the buffalo were also seized vide memo (Ex. P. 19). After his arrest the appellant gave information, vide memo (Ex. P. 15, regarding his having concealed certain articles in his house and on the basis of the said information number of articles (Ex. 2 to 9) viz., axe, razor, scissors etc. were recovered from the house of the appellant and were seized vide memo (Ex. P. 16). The appellant also gave information vide memos (Ex. P. 17 and P. 18) with regard to his having gone to the shop, of Dalchand (P. W. 24) for the purpose of selling 'ghee' which he had stolen from the house of the deceased but since Dalchand did not, buy the said 'ghee' he went to the shop of Bardichand (P.W. 16) where, he had the said 'ghee'. After completing the investigation the police filed a charge sheet against the appellant and his son Amba in the court of Addl. Munsif and Judicial Magistrate No. 2, Udaipur, who committed the case for trial to the court of Sessions and thereupon the appellant and Amba were charged with offences under sections 302, 380 and 460 and in the alternative with the offences under sections 302/34, 380/34 and 460/34 Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried.

(3.) The prosecution in support of its case examined 33 witnesses. The prosecution did not examine any direct evidence and it sought to establish the guilt of the appellant on the basis of circumstantial evidence. The circumstance retied upon by the prosecution were the extra judicial confession made by the appellant and the, recovery for the bullock and the buffalo as well as the various articles belonging to the deceased from the possession of the appellant. In order to prove the extra judicial confession the prosecution examined Panna (P.W. 6) Vishansingh (P.W. 8), Amara (P.W. 14). Chokha (P.W. 15), Deva (P.W. 17), Lalla (P.W. 29), Kanhaiyalal (P.W. 31) and Bhanwar Singh (P.W. 32). In order to prove the recovery of the bullock and the buffalo from the possession of the appellant the prosecution has relied upon the evidence of Vishansingh (P.W.8) who produced the appellant alongwith the bullock and the buffalo. Before Bhanwar Singh (P. W. 32). The aforesaid bullock and the buffalo had been identified as those belonging to the deceased by Smt. Manki (P.W. 9), the widow of tile deceased and Bhagla (P.W. 2), the grandson of the deceased as well as Ganeshlal (P.W. 25), and Bardichand (P.W. 16). The recovery of the various articles belonging to the deceased which was seized from the house of the appellant has been proved by Bawaliya (P.W. 19) who is the at testing witness of the seizure memo; (Ex. P. 16). The said articles have been identified as those belonging to the deceased by Smt. Manki (P. W. 91 and Bhagla (P.W. 2). Bardichand (P.W. 16) and Lal Chand (P.W. 24) have also come forward to say that the appellant had 'come' to sell 'ghee' to them and that Dalchand refused to buy the 'ghee' and the said 'ghee' was purchased by Bardichand and they identified the tin in which the 'ghee' was contained. The appellant in his Statement recorded under section 313 Criminal Procedure Code denied the prosecution case and stated that he had been falsely implicated at, the instance of Galla who is inimical towards him. He has denied, that he had stolen the bullock and the buffalo belonging to the deceased or that the same were seized from his Possession. He, has also stated that the 'ghee" was not sold by him but was sold by his brother-in-law.