BASKI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY his judgment dated February 22, 1978, the learned Sessions Judge, Udaipur convicted and sentenced the three accused appellants as under : - S. No. Name of accused Section under which convicted Sentence awarded 1. Kela 302, IPC Imprisonment for Life 2. Mst. Baski 302/34, IPC Imprisonment for Life 33 Bhera (i) 302/34, IPC Imprisonment for Life (ii) 324, IPC Three years' rigorous imprisonment. (His sentences were directed to run concurrently ). The accused have come up in appeal to challenge their conviction and sentence. Since all the three appeals are directed against one and the same judgment, they were heard together and are disposed of by a common judgment.

(2.) BRIEFLY recalled, the facts and circumstances leading to the prosecution and conviction of the accused appellant were that accused Kela and Bhera are real brothers and accused Mst. Baski is their real sister. They are residents of village Gadliya district Udaipur. Heera the deceased victim in the case was the real brother of PW 3 Otta of village Samod situate not far away from Gadliya. Mst. Laxmi d/o Wajja of village Neruch was betrothed to the son of P. W. 3 Otta nearly before five years of the occurrence. She was taken away by the maternal uncle of accused Kela. Later on, Laxmi left him and started living with Babla, the son of PW 3 Otta. This annoyed accused Kela. On the next day of Dipawali 1976 i. e. 23. 10. 76, accused Kela and Bhera went in the morning to the house of Jeta Patel in village Gadliya for exchange of pleasantries as is the usual custom in that area. PW 3 Otta, PW 6 Roopa and deceased victim Heera also went there for the same purpose. It is alleged that there accused Kela expressed his annoyance and threatened to finish Heera. In the evening, Otta, Roopa and Heera were returning to their village. When they reached near the river situate never Gadliya, Otta and Roopa crossed it but Heera lagged behind. While Heera was on the other side of the river, the accused persons came there. Accused Bhera and Mst. Baski caught hold of Heera. Accused Kela took out a knife and thrusted it in the abdomen of Heera. Heera raised cries and fell down. Otta and Roopa turned back to help Heera. Accused Bhera thereupon shot arrows towards them. The arrow injured the right elbow of Roopa. The accused thereafter made good their escape. Roopa, Otta and some other persons gathered at the scene of occurrence. There was profuse bleeding from the wound of Heera. He was immediately taken for treatment to General Hospital, Udaipur. His injuries were examined on 24. 10. 76 by the Medical Jurist Dr. Tej Prakash (P. W. 7 ). The injury report prepared by him is Ex. P. 2. One stab wound in the right umbilical region was found. Since his condition was precarious, Dr. Tej Prakash informed the Police PW 2 Kanhaiya Lal, Station House Officer Hathi-pol, Udaipur immediately went to the hospital with Judicial Magistrate Shri Dhanraj (PW 4) Shri Dhanraj recorded the statement, Ex. P. 11 of Heera at about 10. 30 A. M. Despit treatment, Heera did not survive and succumbed to the injury at about 4. 15 P. M. on that very day. The post mortem examination was conducted by Dr. Tej Prakash. He found the following injuries : - EXTERNAL 1) Stab wound 3-1/2 c. m. x 1-1/2 c. m. x peritoneal cavity deep in the right umbilical region. Vertical. Gut protruding from the wound. Margins are clean cut slight ragged on upper pole of wound. 2) Stitched wound, approximated by the two stitches of veneses. Just above medial malleous transverse if cm. long. INTERNAL Stab wound in the umbilical region on right side 3-1/2 c. m. x1-1/2 c. m. x peritoneal cavity deep. Congested, peritoneal tear 3| cm. x 1-1/2 c. m. in umbilical region, on opening foul smelling gas came out, peritoneal cavity full of foul smelling fluid blood tinged with some faecal matter. The Doctor was of the opinion that the cause of death was septic shock as a result of peritonities and gut perforation caused by stab wound abdomen. The injury was stated to be ante mortem and sufficient in the ordinary course of nature to cause death. The post mortem examination report issued by him is Ex. P1. The inquest report of Heera's dead body was prepared by Head Constable Shri Bhanwar Lal (PW5 ). PW. 2 Kanhaiya Lal, Station House Officer sent the inquest report, the post mortem report and the dying declaration of the deceased victim to Police Station, Bikeria alongwith his letter Ex. P. 9 as the offence was committed within the local limits of police Station, Bikeria. The Police Bikeria registered a case and proceeded with investigation. The accused were arrested. The place of occurrence was inspected. The blood-stained dagger was recovered in consequence of the information furnished by accused Kela whist under police custody. After when the investigation was over, the police presented a challan against the accused appellant in the court of Additional Munsif and Judicial Magistrate, Udaipur, who in his turn committed the case for trial. The learned Sessions Judge framed a charge under section 302 and 307/34 against Kela, 302/34 and 307/34 against Mst. Baski and 302/34 and 307,i. P. C. against Bhera The accused pleaded not guilty and faced the trial. During trial, the prosecution examined 17 witnesses and filed some documents. In defence, no evidence was adduced by the accused persons. On the conclusion of trial, the learned Sessions Judge held that no offence under Section 307 I. P. C. was made out. The other charges were held to have been brought home to the accused. The accused appellants were consequent convicted and sentenced as mentioned above.

(3.) NOW, to constitute the common intention it is necessary that the intention of each of the accused is known to others and is shared by them. There is no evidence to show as to how and in what manner and position accused Mst. Baski and Bhera caught the victim. Both the eye witnesses and the dying declaration are silent on this important issue. There is again no evidence that accused Kela was waiving or displaying or brandishing the dagger when the three accused persons came to the victim There is absolutely no evidence again that these two accused had the knowledge that accused Kela had a dagger with him. In the context of these circumstances we can only infer that it was the Sudden act of Kela when he stabbed the victim. It may be repeated that accused Kela had caused only one injury to the victim. There is again no evidence in the prosecution camp to show or suggest that accused Mst. Baski and Bhera exhorted or incited or instigated or prompted accused Kela in any manner to stab the victim. It does not appear that there was any pre-arranged plan among the three accused persons to commit the murder of Heera. We are, therefore, impelled to say that it was the individual act of accused Kela when he stabbed Heera. As such, accused Bhera and Mst. Baski cannot be held responsible for Kela's causing the stab wound to the victim.