KHETA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment and order passed by the learned Sessions Judge, Sirohi, in Sessions Trial No. 13/86 on 18/07/1987, convicting the accused appellant u/s. 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and a fine of Rs. 2,000.00. In default, rigorous imprisonment for three months.

(2.) The prosecution story, stated in brief, is that on 4-1-86, one Bholiya, an employee of Welcome Factory was coming home from his factory in the evening, after finishing his shift duty. When he was passing by the field of Kala, accused Kheta came from behind and hit the deceased on the head by axe. The incident was witnessed by Hariya, PW/1, who lodged the F.I.R., in pursuance of which investigation was conducted and the accused was prosecuted for an offence u/S. 302 of the Indian Penal Code.

(3.) The prosecution examined as many as 15 witnesses to prove the prosecution case. On appreciation of this evidence, the learned Sessions Judge came to the conclusion that the prosecution has proved beyond reasonable doubt, the guilt of the accused, He, therefore, convicted him u/S. 302 I.P.C. and sentenced him to suffer imprisonment for life as aforesaid. This order is impugned in this appeal by Mr. Anand Purohit, learned counsel appearing as amices curiae for the accused. He submitted, after taking us through the entire evidence, that the prosecution has failed to prove the guilt of the accused and he is, therefore, liable to be acquitted. He then submitted that the witnesses examined by the prosecution as eye-witnesses were highly interested eye-witnesses. They were partisan and the prosecution has deliberately suppressed independent evidence. There is, thus, no trust-worthy evidence to establish the case of the prosecution and, therefore, the accused is liable to be acquitted. It was then submitted by the learned counsel that the occurrence took place in January 1986 and admittedly it was evening time. It was, therefore, improbabale to identify the accused, as the assailants in the twilight which may or may not be there in the evening. According to the learned counsel, therefore, there is failure to identify the accused and consequent conviction becomes unsustainable in law.