BABURA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 29/03/1985, passed by the Sessions Judge, Jalore, by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offence under Sections 302 and 447 IPC.

(2.) The incident, which led to the prosecution of the accused-appellant, took place on 12-11-83 at dinner time near the Barwa tubewell situated in the out-skirt of village Gajapura, where Hamira S/o Moola was murdered by the accused-appellant. The case of the prosecution is that deceased Hamira, Bharmal and Chela were on the Barwa tubewell. Bharmal and Chela left for the village for taking their meals while Hamira remained on the tube well. Hamira slept near the tube well. When Bharmal and Chela came towards the village, they saw accused Babura armed with a Kulhari, going towards the tube well. Both remained standing there in order to see where Babura was going. Babura proceeded towards the tube well where Hamira was staying. When they saw Babura going towards the well of Hamira, they followed him. They followed him from a distance of 10 Paundas (fifty feet). They heard the cries of Hamira and saw accused-appellant Babura inflicting injuries to Hamira with the axe. Both of them thereafter did not proceed towards Hamira but went to inform Jagta the brother of Hamira regarding the incident. They went to the village, Gajapura, informed Jagta that accused Babura is inflicting injuries to Hamira, whereupon Jagta, Bhakha, Bharmal and Chela proceeded towards the tube well and reached there. They found Hamira badly injured and profusely bleeding. On enquiry, Hamira told them that Babura Bheel (R/o Gajapura) had inflicted injuries upon him. Thereupon all these witnesses took Hamira in a bullock-cart to the Police Station and lodged the F.I.R. at Police Station, Jaswantpura. The condition of Hamira was serious and, therefore, after recording the F.I.R., Hamira was sent to the hospital, where his dying declaration was recorded. The prosecution, in support of its case, examined eight witnesses.

(3.) It is contended by the learned counsel for the appellant that PW 2 Bharmal and PW 3 Chela the alleged eye witnesses of the occurrence are not reliable witnesses and their presence at the scene of the occurrence is doubtful and no reliance can be placed upon these witnesses as they are merely chance witnesses. Their conduct at the time of the incident and thereafter makes them wholly unreliable. Even their presence at the place, from where they have alleged to have seen the occurrence, has not been shown in the site plan prepared by the investigating officer. The dying declaration, relied upon by the learned trial Court in convicting and sentencing the accused, also, does not inspire confidence because the deceased Hamira was not in a position to make the alleged statement. It is further submitted that the accused-appellant had neither any motive nor any strained relations with the deceased and, therefore, there was no question of committing the murder of Hamira by the accused. It is further submitted that the recoveries of the axe, the Dhoti and other clothes do not connect the accused-appellant with the crime as the recoveries of these articles appear to be false and fabricated one. The recovery of axe is highly doubtful. Lastly, it is contended that the appellant never absconded from the village and there is no evidence on record to prove that the appellant remained absconded and the learned trial Court committed an error in convicting the appellant on the ground that he remained absconding from the village. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court and submitted that the learned Sessions Judge has properly considered the evidence on record and rightly convicted and sentenced the accused-appellant.