BATTI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THREE accused appellants-Batti Lal, Ramji Lal and Ramkishore, have been convicted by the learned Sessions Judge, Sawai Madhopur, under his judgement dt. 22. 12. 1990 u/s. 302/34 IPC and each of them has been sentenced to undergo imprisonment for life and to pay a fine of Rs 200/-, in default of payment of fine, to further undergo two month's R. I. each.

(2.) AS per the case of the prosecution, on 14. 11. 1989 in Mouja Malarna Chor, P. S. Sawai Madhopur at about 4 p. m. the three accused appellants are said to have caused death of Kailash, with sharp edged weapons.

(3.) THE case of the prosecution rests on the testimony of Mst. Nand Kanwari PW 7 and PW 6 Dharamraj. So far as PW-7 is concerned, she has stated in her statement that the deceased Kailash was lying dead on the road. At that time, she was going to Jungle to squeeze milk She saw that Gopal was armed with a lathi, Shambhu was armed with a Gandasi, Batti Lal with an axe, Ramji Lal with a Katar and Ramkishore was having a 'chhuri'. All of them were giving beating to Kailash with their respective weapons. When Narain Pujari came to his rescue, Batti Lal also gave a blow by sword, to Narain on his hand. Girdawar also came to his rescue. She further states that she had requested the accused persons that they should not kill Kailash as he is their own brother. According to her, Shambhu and Gopal ran away and she went to the Jungle to milch the cattle and thereafter, she informed Meetha Lal who met her in the Jungle, that Kailash had been killed. It will be seen from her statement that her husband has two more brothers Badri and Ram Kanwar. Kailash (deceased) was the son of Badri and the two accused appellants Ramji Lal and Batti Lal are sons of Ram Kanwar. Thus, two of the accused appellants belong to the same family. THEre is material on record, as would be clear from the reading of the F. I. R. (Ex. P. 16), that about three years prior to this occurrence. Mool Chand Meena had been murdered and a case in relation to his murder had been filed against Meetha Lal Meena (PW-11), the person who has lodged the report Ex. P. 16. It will further be seen that Meetha Lal Meena is the son of Phoolchand who is the husband of Smt. Nand Kanwari (PW- 7 ). Nand Kanwari (PW-7) admits in her cross-examination that her statement had been recorded by the police and when she was confronted with her police statement (Ex. D. 2), portion A to B, wherein she had stated that in the evening at about 5 p. m. she and Rajbai were at the house, then Dharmraj had come running at the house and said that Kailash Kaka had been killed opposite the house of Krishan Lal by Batti Lal, Ramji Lal and Ramkishore. But she denied to have stated so. In her police station, portion C to D she has further stated that she along with Rajbai, mother of Kailash reached the spot at that time, Kailash had died, but she denied to have stated so in her police statement. It will therefore be clear that in the police statement (Ex. D. 2) she has not professed to be an eye witness and came out with the case that it was Dharmraj, a boy who had informed her and Rajbai about the incident and only then, she had reached the spot. It can therefore be said that she was not an eye witness of the occurrence. It will further be seen that Meetha Lal (PW-11) is the son of Mst. Nand Kanwari (PW-7 ). Meetha Lal had lodged the report (Ex. P. 16) and a perusal of the said report would show that it was Mst. Nand Kanwari who had disclosed him about the incident. THErefore, PW-7 Nand Kanwari cannot be said to be an eye witness of the occurrence.