STATE OF RAJASTHAN Vs. KANIA

JUDGEMENT

(1.) THIS appeal on leave granted by this Court Under Section 378(3) of the Code of Criminal Procedure, 1973 is directed against the judgment dated the 23rd February, 1974, of the Sessions Judge, Pali in sessions case No. 2 of 1973 acquitting the accused respondent for the offence Under Section 302 IPC for causing the death of Kistura Harijan of Gundoz.

(2.) THE incident resulting in the death of Kistura took place at about 1.00 P.M. on February 17, 1972 on the Pali -Sumerpur highway six miles from Pali. According to the prosecution Mahboob Ali, PW 2 was coming from Udaipur towards Pali in a car, when six miles away from Pali he saw the deceased writhing and rolling in pain, Mahboob Ali stopped the car and on his enquiry the deceased told him that Kania Sagara had fixed the gun at him. According to Mahboob Ali a Road -ways bus was already there and 30 -40 passengers were standing near the road. Mahboob Ali went to the Police Station, Pali and loged the first information report the same day, and on this a case Under Section 307 IPC was registered at Police Station Pali. As the case concerned the Police Station Guda -Endla and the deceased also expired, the case was converted into one Under Section 302 IPC and registered at Police Station Guda Endla. During investigation the accused was arrested. A loaded gun was also recovered. After the completion of investigation the police submitted a charge sheet in the court of Munsif Magistrate, Pali who committed the accused -respondent to the court of Sessions to stand trial Under Section 302 IPC.

(3.) WE have heard the learned Public Prosecutor for the State and Shri M.C. Bhandari, counsel for the accused. We have closely perused the evidence and have also gone through the reasons recorded by the learned Sessions Judge The view taken by the learned Sessions Judge cannot be said to be unreasonable. There is no direct evidence and the case against the accused rests on the dying declaration alleged to have been made by the deceased before Mahboob Ali, PW 2. In his statement before the Sessions Judge Mahboob Ali resiled from his statement of the committing court and rather stated that when he was about 6 miles from Pali he saw the deceased rolling in pain. A Roadways bus was already there and the passengers were standing nearby. On enquiry by him the driver of the Roadways bus told him that some one had killed the deceased. The driver had also disclosed that a jeep had already passed that way and had gone to Pali. In this statement Mahboob Ali made no mention about the dying declaration alleged to have been made by the deceased. The witness was declared hostile and his statement recorded in the committing court was tendered in evidence wherein he had stated that on his enquiry the deceased had told him that Kania Sargara had filed the gun at him.