DERAJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appeal is directed against the judgment of the learned Session Judge, Balotra dated February 28, 1981, by which the appellants Deraj and Kallaram have been convicted under Section 302/34, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 500/ - in default of the payment of fine to further undergo three months' rigorous imprisonment.

(2.) THE case set -up by the prosecution is short and simple and briefly stated it is as follows: The deceased Bhinyaram Jat, aged about 28 year was a resident of village Bisernia P.S. Chauhan district Banner. The appellants and jagram the accused acquitted by the court below are also residents of the same village. At sun set on May 7, 1980. Bhinyaram went to Bhojeria well to fetch water. While he was still there at the well accused Deraj also arrived there. Bhinyaram asked Deraj as to why he was after his children end abused them. This annoyed accused Deraj A scuffle took place between Bhinyaram and accused Deraj. PW 1 Deepa, PW 3 Magna and one Purkha intervened and separated them Deraj and Bhinyaram went towards their houses Deepa, Magna and Purkha continued to work at Bhojeria well In the midnight, Bhinyaram again came on the well and asked Deepa and others whether they had seen him being beaten by accused Deraj. While they were talking, Jagram (accused acquitted) came there and seeing Bhinyaram went away towards the Dhani of accused Deraj. After five ten minutes, the appellants Deraj and Kailaram along with Jagram came there armed with lathies. Jagram caught hold of Bhinyaram and felled him down. Thereafter accused Deraj and Kallaram struck blows with Lathies on the head, feet and neck of Bhinyaram. When Deepa, Magna and others tried to intervene, they were threatened with dire consequences by the appellants. The appellants then dragged Bhinyaram to some distance and put him in the way. There was profuse bleeding from the wounds of Bhinyaram and the clothes he was wearing got drenched with his blood. He did not survive and passed away then and there after sometime. Deepa (PW 1) went to PW 5 Tulsaram and apprised him of the incident. Tulsaram and some other persons came at the place where Bhinyaram was lying dead. Tulsaram went to Police Station, Chauhtan and verbally lodged report Ex. P 3 of the occurrence at about 10.00 A.M. on May 8, 1980. The police registered a case under Section 302/34. IPC against Dsraj, Kailaram and Jagram. The usual investigation ensued. The investigation was conducted by the Dy. Superintendent of Police Narain Singh (PW 13). He arrived on the spot inspected the site and prepared the inquest report of the dead body of Bhinyaram The blood -stained soil and the blood -smeared clothes of the deceased were seized and sealed. The autopay of the victim's dead body was conducted at about 10 00 A.M. on May 5, 1980 by PW 16 Dr. Gulab Vedara the then Medical Jurist, Government Hospital Barmer. The doctor noticed the following injuries on the victim's dead body: External

(3.) BEFORE dealing the contentions of the learned counsel appearing for the appellants, it would be useful to briefly notice the salient features of the case. The prosecution examined PW 1 Deepa and PW3 Magna as the occular witnesses of the occurrence. Each of them gave the same version of the incident. According to them, in the evening of May 7, 1980, when they were working at Bhojeria well, the deceased Bhinyaram came there to fetch water. While Bhinyaram was still there, accused Daraj also came there. Bhinyaram asked accused Deraj as to why he used to abuse his children. Accused Darai got annoyed. He caught bold of Bhinyaram and filled him down. A scuffle thus took place between Bhinyaram and accused Deraj. Deepa(PW 1), Magna(PW 3) and Magna's son Purkha intervened and they separated them. Bhinyaram and accused Deraj wait away towards their houses. In the midnight, while these two witnessss and Purkan were still working at the well, Bhinyaram came there and asked them whether they had seen him being beaten by accused Deraj. While the talks were going -on, Jagram (accused acquitted) came there and seeing Bhinyaram, want away. Five -ten minutes later, appellants Diraj and Kallaram accompanied with Jagram came there arms 1 with Lathies. Jagram caught hold of Bhinyaram and felled him down. Thereafter the appellants Deraj an Kallaram struck blows on the head, neck and feet of Bhinyaram. They then dragged Bhinyaram, took him 50 to 60 paces away and put him in the way. The appellants and Jagram thereafter want away. The learned Sessions Judge did not believe the prosecution story and the role assigned therein to Jagram. The prosecution story that Jagram first came to the wall and seeing Bhinyaram went away, was disbelieved. So also, the prosecution story Jagram's catching hold of Bhinyaram and felling him down was also disbelieved by the court below. Since the rob assigned by the prosecution to Jagram was not, believed, he was acquitted of the offence under Section 302/34, IPC.