UDAI LAL ALIAS UDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 10/04/1985, passed by the Sessions Judge, Udaipur, by which the learned Sessions Judge convicted and sentenced the appellant for the offences under Sections 302 and. 394, I.P.C.

(2.) The incident, which led to the prosecution of the appellant, took place on 11-1-83, in the jungle of Mathora, where Pratapi w/o Heera was murdered. The case of the prosecution is that in the morning of 11-1-83, Smt. Pratapi along with PW 1 Maggu had gone to jungle for collecting the wood. In the jungle, when Pratapi and PW 1 Maggu were collecting the wood, the accused came there and asked her not to cut the green wood. Sometime thereafter the accused again came and caught-hold of Smt. Pratapi by hands. PW 1 Maggu afraid of this, went to the village and informed the villagers. The incident took place at about 10.00 a.m. The written report of this incident was lodged at Police Station, Gordhan Vilas, at about 6.00p,m, on the same day by one Lalu Ram Dangi, the Gangman in the Railway Department at Udaipur. The prosecution, in support of its case, examined twenty-one witnesses and the accused, in his defence, examined one witness. The prosecution case, mainly, rests upon the evidence of PW 1 Maggu and the recovery of the silver Kadiya belonging to the deceased which was recovered at the instance and on the information supplied by the accused-appellant. The other evidence, on which the reliance was placed by the prosecution, relates to the recovery of silver ingot and the bloodstained clothes and the Khunt - the weapon of the offence, but those recoveries were not relied upon by the trial Court. The prosecution has produced PW 1 Maggu as the eye-witness of the occurrence. She has stated that about 12-13 months before, at about 8.00/9.00 a.m. in the morning, she alongwith deceased Pratapi -her aunt - went to the jungle and took their cattles for grazing. The cattles were left out at the jungle for grazing and she along with her aunt Pratapi, started collecting wood. The accused came there and asked them why they had collected the green wood. The accused was armed with a Khunt. The accused went away, but returned after sometime. Thereafter the accused caughthold the hands of her aunt Pratapi. Pratapi got herself rescued, but the accused again caught-hold of her hands. She thereafter concealed herself and the accused went away. The legs of Pratapi were cut. She covered her aunt and tried to raise / lift her aunt, but could not do so and, therefore, she went to the village, informed her father and thereafter she, her father Natha, Vengra and Magga came to the place of the incident. Pratapi was taken to the village and the amputed parts of the legs were, also, taken. The accused had token away the silver Kadiya from the legs of Pratapi. She identified the silver Kadiya in the Court. Heera met them afterwards. In the cross-examination, she has denied the statement made by her under Section 161, Cr. P.C. where the description of the accused was given. She has, also, denied regarding stating about the colour of the clothes which were worn by the accused and has given the new description of the accused and the clothes which were worn by the accused. She has, also, denied the making of the statement that she ran away when the accused caught-hold the hands of Pratapi. A close reading of the statement of this witness clearly showsthat this witness has made several 'improvement in her statement from the statement recorded under Section 161, Cr. P. C. In the earliar statement, which was given by this witness immediately after the incident, she has given the description of the accused which does not fit in with the description, of the present accused - appellant. In the earlier version given by her, she has stated that the accused was wearing Khaki clothes and was of short stucture and was of black in colour. This witness was not knowing the accused before and the accused was not got identified by the prosecution after his arrest and for the first time the witness got him identified in the Court. The earlier description given by this witness of the accused as well as the clothes which the accused was allegedly wearing at that time, raises a suspicion regarding the indentification of the accused by this witness Morevour, in the earlier version, this witness has stated that she ran away towards the house as soon as the accused caught-hold the hands of the deceased Pratapi. This witness, thus, could not have seen the occurrence. A close scrutiny of the statement of this witness does not inspire confidence and it cannot be said that this witness was present at the scene of the occurrence or she had seen the occurrence and, therefore, on the basis of the evidence of this witness, the appellant cannot be held guilty for the offence under Section 302, I.P.C.

(3.) The next evidence, on which reliance has been placed by the prosecution, is the recovery of the silver Kadiya of the deceased Pratapi at the instance and on the information supplied by the accused-appellant. Silver Kadiya (Article 3) was recovered from PW 11 Pawan Kumar. The case of the prosecution is that this silver Kadiya was pledged by the accused for an amount of Rs. 550.00 with this witness. PW 11 Pawan Kumar has stated that he knows accused Uda. He pledged the Article 3 (silver Kadiya)' with him (Pawan Kumar) for a consideration of Rs. 550.00 and the deal has been entered in his diary. Silver Kadiya was recovered from him vide Ex. P-8. After recovery of this silver Kadiya, it was sealed by the police in his presence. The entry regarding pledging of Kadiya is Ex. P-20, which is signed by him. The accused pledged the Kadiya with him on 15-1-83. PW21 Dileep Singh is the Investigating Officer, to whom the accused gave information Ex. P-28 on 6-11-83 under Section 27 of the Evidence Act and in pursuance to that information, got the silver Kadiya recovered from Pawan Kumar. The accused admitted the pledging of silver Kadiya with Pawan Kumar, but his case is that he pledged the silver Kadiya with Pawan Kumar on the asking of Nana and he was paid Rs. 10 / - for this deal. Thus, pledging of silver Kadiya has been admitted by the accused himself. The Kadiya in question belongs to the deceased Pratapi, who was wearing it at the time when she went to jungle. The possession of silver Kadiya after the death of Pratapi with the accused is, thus, proved.