RAMESHWAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BOTH these appeals i. e. D. B. Criminal Appeal No. 737/1999 (Rameshwar vs. State of Rajasthan) and D. B. Criminal Appeal No 15/2001 (State of Rajasthan vs. Sohan and Another) have arisen out of a common judgment dated 29. 9. 1999 delivered by Addl. Sessions Judge, Kishangarh, Ajmer in sessions case No. 28/1998 (State vs. Rameshwar and Others) whereby he convicted the accused Rameshwar for the offence under Section 302 IPC and sentenced him to undergo life imprisonment and a fine of Rs. 500/- and in default of payment of fine he has to further undergo 6 months RI and acquitted accused Sohan and Jeevan for the offence under section 302/34 IPC.

(2.) THE brief facts essential for the disposal of these appeals are that as per the case of the prosecution, on 29. 9. 98 at about 10 AM Smt. Papudi was cleaning utensils in front of her house in Kishangarh. Her bother Rameshwar came there and pressed her neck and threw her on the stones. THEreafter, Rameshwar went to his house and brought a sword and ran towards Smt. Papudi. Another brother of Smt. Papudi Jeevan slapped her. Rameshwar inflicted injuries by sword on her person. Sohan and Jeevan also helped Rameshwar in this occurrence. Shankar and Kishan sons of Smt. Papudi have seen the entire occurrence and also tried to save her but Rameshwar inflicted many injuries on the person of Papudi. Rameshwar and other accused persons ran away from the place of occurrence. THErefore, police reached at the spot and Shankar (PW 13) gave a written report (Ex. P-16) to police. THE police registered a case and started investigation. All the three accused persons were arrested and blood stained sword was recovered from the hand of Rameshwar. His blood stained shirt and pent were also recovered. Post-mortem Examination of the body of deceased Papudi was got conducted. After completion of investigation challan was filed. In due course the case came up for trial before learned Addl. Sessions Judge, Kishangarh, Ajmer who framed the charge for the offence under section 302 IPC against accused Rameshwar and charge for the offence under section 302/34 IPC against accused Sohan and Jeevan. Prosecution examined as many as 17 witnesses viz. PW-1 Chand Mohammad, PW-2 Ganesh, PW-3 Kalu, PW-4 Pratap, PW-5 Ramswaroop, PW-6 Banwarilal, PW-7 Chetan, PW-8 Premraj, PW-9 Mohammad Usman, PW-10 K. P. Shshi Kumar, PW-11 Surendra Singh, PW-12 Ramdev, PW-13 Shankar, PW-14 Kishan, PW-15 Gordhan, PW-16 Ramchandra and PW-17 Ratan Singh. Statement of accused persons-Rameshwar, Sohan and Jeevan were also recorded under section 313 Cr. P. C. THE accused persons examined DW 1 Ram Swaroop as defence witness. Arguments were heard and the learned Addl. Sessions Judge, Kishangarh, Ajmer convicted the accused Rameshwar for the offence under Section 302 IPC and sentenced him as stated above and acquitted the accused Sohan and Jeevan for the offence under Section 302/34 IPC. THE appellant Rameshwar filed this appeal against the judgment and order of conviction and sentence and the State has also preferred appeal against judgment and order of acquittal of accused Sohan and Jeevan.

(3.) NOW let us examine the second argument of learned counsel for the accused Rameshwar that as the question relating to post mortem report has not been put to accused Rameshwar in examination under section 313 Cr. P. C. therefore, this post mortem report cannot be taken into consideration. On this point, learned Public Prosecutor has submitted that now legal position is well settled that omission to examine under section 313 Cr. P. C. on some point does not by itself vitiate the trial unless it has caused prejudice to the accused. He has further submitted that in the present matter, post mortem report was admitted by learned counsel for the accused, therefore, no prejudice is caused if no question relating to this post mortem report has been put to him. he has placed reliance on the the judgment of the Hon'ble Apex Court in the case of K. C. Mathu vs. State.