DHARJI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated January 25, 1985, passed by the Sessions Judge, Banswara, by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offence under Section 302, I.P.C.

(2.) The appellant was tried by the learned Sessions Judge, Banswara, for the offence under Section 302, I.P.C. for committing the murder of his wife Smt. Kamla. The case of the prosecution is that on 15.5.1984, Nahar Singh (P.W.l) came alongwith his bullocks. At the time his sister-in-law was grinding the wheat. He heard the cries MAARE RE MAARE RE. After hearing the cries when Nahar Singh reached in front of the house of his brother, he saw his brother Dharji (accused-appellant) coming out of the house. At that time his brother Dharji was armed with a naked sword, by which he tried to kill him, but he got himself escaped. Udiya (P.W. 2), also; came there and the accused tried to inflict injury to him also, but he, also, went inside the house. Thereafter the accused ran- away by asking who wants to die, come near Mm. Thereafter the accused proceeded towards the village Sarwan, Nahar Singh raised an alarm and on hearing his alarm, Onkariya, Jiwan, Walia, Shambhuda, Kaliya, Galba, Deviya, Gautam and certain other persons assembled there. All of them went inside the house and saw Smt. Kamla near the grinding stones (Ghatti). She had multiple injuries on her person and was profusely bleeding. Later on she succumbed to the injuries. The prosecution, in support of its case, examined twelve witnesses. P.W. 1 Nahar Singh is the brother of the accused and P.W. 1 Udiya is the nephew of the accused, who had seen the accused coming out from the house and who, after seeing him, raised an alarm whereupon number of persons collected there. P.W. 3 Gelba, P.W. 7 Shambhuda and P.W. 8 Nathu the father of the accused - are the three witnesses, who immediately after hearing the cries of P.W. 1 Nahar Singh and P.W. 2, Udiya, came at the place of the occurrence and before whom P.W.1 Nahar Singh and P.W. 2 Udiya narrated the whole story. P.W.4 Gautam and P.W. 5 Ram Lal are the two Motbir witnesses. P.W. 4 Gautam is the witness to the Panchnama while P.W. 5 Ram Lal is the witness to the arrest of the accused and the preparation of the site plan. He is, also, a witness to the recovery of the Dhoti and Baniyan of the accused, which were recovered from the person of the accused and were found stained with blood. He is, also, a witness to the recovery of the sword, with which the alleged murder was committed and which was found blood-stained. P.W. 6 Dhanji is the maternal-uncle of the accused, before whom he made the extra-judicial confession. He is, also, a witness to the recovery of the sword as well as the Dhoti and other clothes of the accused. P.W. 9 is Dr. Shanti Lal Jam, who conducted the post mortem examination on the dead body of Smt Kamla, P.W.10 Dinesh Chandra, P.W.11 Harish Chandra Singh and P.W. 12 Mohan Lal are the police witnesses. P.W. 10 Dinesh Chandra Singh was working at the Office of the Superintendent of Police, before whom Constable Harish Chandra Singh produced five scaled packets, which he brought from Police Station, Danpur. He checked these packets and sent those packets alongwith a forwarding letter (Ex. P. 14) for chemical examination to the State Forensic Science Laboratory, Jaipur, along with Constable Harish Chandra Singh. P.W. 11 Harish Chandra Singh was the Constable working at Police Station, Danpur, who, on 24.5.1984, took five sealed packets for chemical examination to the State Forensic Science Laboratory, Jaipur. He got these packets checked at the Office of the Superintendent of Police (Crime Branch), Banswara, and then took them for F.S.L. examination to Jaipur, and handed them over there. P.W. 12 Mohan Lal was the Station House Officer, Police Station, Danpur, who conducted the investigation and presented the challan against the accused. The learned Sessions Judge, after trial, convicted the accused for the offence under Section 302, I.P.C. and sentenced him to undergo imprisonment for life and a fine of Rs. 100/- and in default of payment of fine to further undergo one monthTs simple imprisonment. The learned Sessions Judge, while convicting and sentencing the accused, placed reliance on the testimony of P.W. 1 Nahar Singh and P.W. 2 Udiya- the two alleged eye witnesses of the occurrence as well as the recovery of the bloodstained sword, Dhoti and Baniyan of the accused and the extra-judicial confession made by the accused-before Dharji. (P.W. 6)

(3.) It is contended by the learned counsel for the appellant that P.W. 1 Nahar Singh and P.W. 2 Udiya are not the eye witnesses of the occurrence and they were not even present at the place of the occurrence. They have been falsely introduced as eye witnesses by the prosecution. Their presence at the scene of the occurrence was not possible at the relevant time. Learned Counsel for the appellant has further submitted that the extra-judicial confession is a very weak type of evidence and no evidence can be based on such a weak type of evidence and even otherwise the alleged statement, made by the accused before P.W. 6 Dharji, cannot be regarded as an extrajudicial confession. It is, also, contended that the recoveries of the blood-stained sword, Dhoti and Baniyan have not been proved by the prosecution, and the appellant cannot be convicted on the basis of this evidence. She, therefore, submits that the appellant has been falsely implicated in the case and he deserves to be acquitted. Learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned Sessions Judge.