ANDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE three jail appeals are directed against the conviction and sentence awarded to the three appellants namely; Anda, Dhanna & Deva in Sessions Case No. 45/84 passed by District and Sessions Judge, Udaipur whereby the accused-appellant; Dhanna has been convicted u/s. 302 IPC and the rest of the two appellants i. e. Anda and Deva have been convicted u/s. 302 read with Section 34 and Section 452 IPC and all the three above named appellants have also been convicted u/s. 452 IPC. All the accused-appellants have been sentenced to Life Imprisonment and a fine of Rs. 250/- and in default of payment of fine to undergo further 3 years R. I. for conviction u/s. 302 IPC, each of the three appellants has been sentenced to 2 years R. I. with a fine of Rs. 200/- and in default of payment of fine each of the three appellants to undergo further three months R. I. , the sentences to run concurrently.

(2.) THE prosecution case is that in the alleged incident which took place on the night intervening 14. 11. 84-15. 11. 84 a two years' old child namely Kusha son of Kala was killed to death by the three accused-appellants. With regard to this incident the First Information Report was lodged at about 1. 00 p. m. of 15. 11. 84 at Police Station Bekaria in District Udaipur. THE FIR Exh. P-5 was lodged by Kala i. e. the father of the deceased-child Kusha narrating that on 14. 11. 84 in the afternoon at about 2. 00 p. m. while his father Mana was at home, Deva son of Roda, Dhanna Son of Galla, Anda son of Bhikha and Choga Son of Dhanna came to his house armed with arrows and swords, hurled abuses and said that Kala come out of the house, we will kill you today. Kala did not come out and Dhanna said that how long you will remain hidden in the house- in the night I will kill you to death. In the evening at 5-6 p. m. Kala, his father Mana and his brother Lala all the three went to jungle out of fear. His mother-Meera and wife-Shanti and deceased-Kusha remained at home. It has been further narrated that he came back to his house at about 8. 00 a. m. in the morning and found his wife and mother weeping. When asked as to why they, were weeping, his wife disclosed to him that in the midnight at about 12 O' Clock Deva, Dhanna and Anda all the three entered the house and Dhanna said that where is Kala? THEreupon, his wife Shanti said that she doesn't know but Dhanna pressed the nose and mouth of the two years' old child Kushia (Kusha) and killed him to death. According to Shanti her mother- in-law Smt. Meera raised an alarm and all the three miscreants ran away. She also says that she attempted for the movements of the child, but he was not breathing. On disclosure of this information Kala went to the police station while two years child was still lying dead at home. Upon this report the investigation was made by the Investigating Agency. THE corpse of the child was subjected to post-mortem on 15. 11. 84 itself and after the completion of the investigation the challan was filed and the three appellants faced the trial for the charges u/ss. 302 and 452 IPC. THE statements of the witnesses were recorded by the Court. THE statements of the accused persons were recorded u/s. 313, Cr. P. C, no defence evidence was led and the learned Sessions Judge, Udaipur vide his judgment & order dated 9. 4. 86 convicted the three appellants and sentenced them as stated hereinabove. Against this judgment and order dated 9. 4. 86 convicting and sentencing them, these three jail appeals were filed.

(3.) WE have heard the learned counsel for the accused-appellants and the learned Addl. PP and have also gone through the record. Having considered the statements of the sole eye-witness i. e. PW- 2 Shanti we find that in the entire examination-in-chief she did not give the version with regard to the closing of the mouth and pressing of the nose of the child while in the cross-examination she has stated that the neck of the deceased was pressed by Dhanna and this statement when considered in the light of the medical evidence of PW-6, Dr. Omprakash, we find that it is not corroborated inasmuch as PW-6 has categorically stated that no any mark of strangulation etc. was there on the neck of the child and he has categorically stated that the neck was not pressed. He has also stated that there was no mark of any injury on the neck and cause of the death was the chowking of the breath and this has happened on account of the closing of the mouth and pressing of the nose, but the neck was not pressed. He also stated that there were some particles in the breathing pipe. In the cross- examination he has stated that the spleen of the deceased was shrinked and in the right portion there was shortage of blood and in the pericardium there was pink coloured fluid and therefore the child was suffering from anemia. He has also stated that the eating material particles which had come in the breathing pipe may also be a cause for chowking of the breathing pipe and this may also result into death. He has also stated that if the nose and the mouth of the child is closed and if he vomits then also food material shall come in the breathing pipe. He has said that the child did not die as a result of the injuries mentioned in Exh. P-7 and these injuries were ante mortem in nature. He has also stated that death occurred prior to 18-24 hours from the time of the post-mortem. Thus we find that positive case with which the prosecution had come, does not find any corroboration with the medical evidence and the statements of the Doctor PW-6 does not support the positive case of the prosecution. The evidence which has come on record in the facts of this case coupled with the factum with regard to the dispute between the parties for the land and the evidence to the effect that the child was sick prior to the incident is sufficient to create a reasonable doubt more particularly when PW-6, has stated that the spleen of the child was shrinked and there was shortage of blood in the right side of the heart and there was a pink coloured fluid in the pericardium and the child was suffering from anemia. The accused-appellants have also stated in the disclosure u/s. 313, Cr. P. C. that they had been implicated on account of the dispute with regard to the land and thus the contention of the learned counsel for the appellants with reference to the availability of the evidence that the child's death was on account of the sickness and that accused-appellants have been implicated falsely in the instant case because of the dispute in between the parties with regard to the land, is sufficient to create a doubt against the prosecution story.