MEGHJI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Meghji was tried for the murder of Nakuda son of Lachhia, alleged to have taken piece in the night intervening 23 -10 -76 and 24 -10 -1976, at about 10 -00 p.m. on the way between the fields of Jeewana and Hukma. It is said that after taking their meals the deceased Nakuda and his brother Mogiya (PW 4) have proceeded to their field for keeping a watch on the ground -nut crop After taking their meals, they started at the evening. Mogiya (PW 4) had a limp in one of his leg, so he was 50 -60 paces behind his brother Nakuda. He heard the cries of his brother Thereupon, he immediately reached near him and saw the appellant inflicting Kulhari blows on his brother. On his alarm, his father Lachhia and uncles Hamira and Jiwana had arrived at the spot. When Hamira and Jiwana arrived, the accused was running away from the scene of occurrence. Kamala (PW 1) was informed by Hurma (Surma) at about 11 or 12 in the night. The motive for the murder issued to be that the accused had a suspicion that his wife has a illicit intimacy with the deceased and because of that a quarrel had taken place last year. Kamla (PW 1) lodged a verbal report at the Police Station, Pipal Khunt, District Banswara, at 11.00, A.M., dated 24 -10 -1976. On her report, case under Section 302, IPC, was registered by the SHO Mustaffa Khan (PW 9). He visited the spot and prepared the Panchnama Fx P/4, Site inspection memo (Ex. P/5) and site -plan (Ex.P/6). He seized blood stained earth from the spot vide memo Ex. P/7 and the Sapha and the shoes of the deceased were also seized, the seizure memo whereof is Ex, P/8. At a distance of about 45' from the place of occurrence a pair of shoes, said to belong to the accused, was also seized by memo Ex. P/9. On 28 -10 -1976 the accused was arrested and his arrest memo Ex. P/10 was prepared. At the time of his arrest, it was noticed that his Dhoti and Pachhari were having stains of blood, so these clothes were seized vide memo Ex. P/11. On the information Ex. P/14, given by the accused, a blood stained Kulhari was recovered at the instance of the accused vide recovery memo Ex. P/12 on 18 -10 -1976. The Investigating Officer also got the autopsy conducted. The post -mortem report is Ex. P/16 Dr. PL. Bhardwaja (PW 11) found as many as six injures on the person of the deceased. He further noticed the defused hamstoma at the scalp layer at the site of injury No 6. The membrana was connected and there was entra dural and intra -dural hamstoma. He also found fracture of left parietal bone and left temporal and Zygomatic bone and injury to vessels and soft tissues, membrane and brain at the site injury No. 3. Blood cloth over the tissue and inside the brain, were also noticed. Injuries No. 3 and 6 individually were sufficient in the ordinary course of nature to cause death, as stated by the Doctor in his statement. The sealed packets were sent for chemical examination. The chemical examination revealed that the Kulhari and the clothes of the accused had blood stains and the Serological examination revealed the presence of the human blood over the kulhari. As regards his clothes, the blood stains were found disintegrate, so their origin could not be determined. After conducting investigation from the witnesses, challan was produced against the accused. The accused was ultimately tried by the Sessions Judge, Banswara.

(2.) THE accused was charged for the offence under Section 302, IPC, to which he pleaded not guilty and claimed to be tried. At the trial the prosecution ex -mined PW.1 Kamla, PW 2 Hamira, PW. 3 Siwana, PW. 4 Mogiya, PW. 5 Ramlal, PW. 6 Surma alias Hurma, PW. 7 Lachhia, PW. 8 Punia, PW. 9 Mustaffa Khan, PW. 10 Baxi J am, and PW. 11 Dr. P.L. Bhardwaj. In his statement under Section 313, Cr. PC the accused denied the prosecution case in entirety In his defence he examined three witnesses, namely, DW.1 Kamji, DW.2 Khatiya, and DW.3 Dhuliya. According to their version, they visited the place of occurrence and on their asking the people said that they do not know as to who had killed the deceased. After hearing the arguments, the learned Sessions Judge, Banswara, convicted and sentenced the accused, as aforesaid, relying on the evidence of PW. 4 Mogiya PW. 7 Lachhia. The rest of the witnesses, namely PW. 1 Kamla. PW. 2 Hamira, PW.3 Jiwana, PW.5 Ramlal, Motbir, and PW. 6 Surma (Hurma), did not support the prosecution and were declared hostile. The learned Sessions Judge further placed reliance on the evidence of recovery and corroboration sought from the Articles, which were found blood stained and corroboration was also sought from the medical evidence.

(3.) MR . S. D Vyas, learned counsel for the appellant, vehemently contended that the learned Sessions Judge committed a grave error in placing reliance on the testimony of Motiya (PW.4) and Lachhia (PW. 7), more particularly when the remaining witnesses, who appeared at the scene of occurrence or to whom the occurrence was immediately narrated, have: not supported the prosecution and have turned hostile. Primarily, the case hinges on the evidence of Mogiya, as admittedly Lachhia had not witnessed the occurrence. He was attracted to the scene of occurrence on hearing the alarm of Mogiya. With regard to the testimony of Mogiya, Mr. Vyas strenuously urged that the evidence of this witness has been cooked up. He does not appear to have witnessed the occurrence. His one leg is not normal and according to Lachhia, he left the house after his brother Nakuda had already left the house. It was a dark night of Aravahya. It was not possible for him to have identified the accused in the darkness. Anxiety to have clear perception and identification of the accused appears to be there, as in his statement Ex.D/1, what he has stated is that Hamira had a light and it was in that light that he identified the accused. With regard to portion A to B of his police statement Ex.D/1, he has, at the trial, stated that he cannot say whether he made mention of observance in the light, which Hamira was having with him. He also pointed out that the shoes of the accused are said to have been found from place 'B' shown in the site plan, which is of a distance of 43 paces from the place of occurrence. The point 'B' is towards the north of the place of occurrence and on the southern boundary of Lachia's field. The witness has stated that after the occurrence the accused ran away towards Surma's field in the west. This shows that Mogiya did not witness the occurrence, also he would have said that the accused first proceeded towards north and when the east -west way meets the north -south way, the accused took a turn towards west. As this is not in his statement, so it should be taken that Mogiya did not witness the occurrence, Mr. Vyas submitted that as there was suspicion against the accused for the deceased having illicit relations with his wife, charged of murder has been foisted against the accused on account of suspicion.