SAWA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 2.6.1992 passed by the Special Judge, S.C./S.T. (Prevention of Atrocities) Cases, Udaipur, by which the learned Special Judge convicted the accused-appellant for the offence under Sec. 302 Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 1000.00 and in default of payment of fine further to undergo six months' rigorous imprisonment.

(2.) Appellant Sawa was tried by the learned Special Judge, S.C./S.T, (Prevention of Atrocities) Cases, Udaipur, for the offence under Sec, 302 Penal Code for committing the murder of his brother Dewa in the outskirts of village Patiya at a distance of thirteen kilometres from Police Station, Gogunda, by inflicting injuries with a Kulhari. The case of the prosecution is that accused Sawa and deceased Dewa were the brothers and there was a dispute between these two brothers regarding the land. Two days before the occurrence, accused Sawa committed the theft of unriped mangoes from the mango tree of Dewa and on that account some altercations took place between the brothers. On 30.5.87, Vajja and his younger brother Kesu and his wife had gone for labour work at Bagdunga road and in the evening when they returned from, the labour-work at about the sun-set, he was informed by his son Kanna that accused Sawa has committed the murder of Dewa by Kulhari and after committing the murder the accused had run towards village Rodmala and he had seen the accused running with a Kulhari. After being informed by Kanna, Vijja went towards the hillock. In the meantime, Kesu, also, came there. Both of them saw Dewa lying on the ground. Both of them decided first to call the Ward Panch and the villagers and thereafter to proceed Towards the corpse of Dewa. After taking such decision, they went to the house of Sakra and Homa and informed them that Sawa has committed the murder of Dewa and asked them to accompany them. Sakra asked them that they should first, go to the Ward Panch and thereafter they should proceed in the manner as will be suggested by the Ward Panch. Both the brothers thereafter went to the house of Raju - the Ward Panch - and informed him regarding the incident. Raju Panch came with them. Sakra and other villagers were, also, called. Badda S/o Bhera, Badda S/o Nawa and Daula, also, came there. Chana, Gama and Nana had already reached there. All of them proceeded towards the place where the deadbody of Dewa was lying and in the light saw injuries 011 the left side of the neck of Dewa. They, also, saw a cut on the left side of neck of Dewa and blood was coming out from that injury. An injury was, also, found on the stomach of Dewa. Kalu, Daula and Vajja were thereafter sent to lodge the report. All of them proceeded towards Police Station, Gogunda and lodged the report on 31.5.87 at 2.30 a.m, The prosecution, in support of its case, examined fourteen witnesses. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above. While convicting the accused, the learned trial Court came to the conclusion that PW 6 Kanna had seen the accused going from the place of the incident. This evidence finds corroboration from the evidence of PW 1 Vajja, PW 2 Badda, PW 3 Raja alias Raju, PW 4 Kesha, PW 5 Kalu, PW 6 Kanna, PW 7 Tuisi, PW 8 Prem Chand, PW 10 Chaina and PW 11 Nana, who came at the scene of the occurrence after they were called. The learned trial Court, also, came to the conclusion that this evidence is further corroborated from the recoveries of the shoes of the accused from the place of the incident as well as that of the blood-stained Kulhari on the information and at the instance of the accused.

(3.) The nature of the evidence, produced by the prosecution, consists of the evidence of PW 6 Kanna, who had seen the accused running from the place of the incident from a distance of thirty paces (about 150 feet). He has stated that on the day of the incident, in the evening, he was in his field. Nana and Homa came on the hillock and cried that Dewa has been killed by accused Sawa. He ran towards the hillock, where Nanda and Homa were there and he saw accused Sawa running with a Kulhari and Dewa was lying on the ground near the boundary of the field. His father Vajja and uncle Kesu were working as labourers in the construction of the road. Raju - the Ward Panch -was called and the matter was reported to the police. This evidence is sought to be corroborated by the evidence of other persons who came at the scene of the occurrence after they were informed about the incident. PW 1 Vajja has stated that in the evening when he returned from the labour-work, he was informed by his son Kanna that Dewa has been murdered by Soma by inflicting injuries with a Kulhari. They went to inform the Ward Panch and the Ward Panch came at the place of the incident and the light they saw the deadbody of Dewa. The Ward Panch asked them to report the matter to the police. Hakra was, also, called but he did not come to the place of the occurrence. Badda S/o Nawa, Badda S/o Bhera and Daula were, also, called there. Nana was, also, called. He Kalu and Daula went to Police Station, Gogunda and lodged the report. According to him, there was a dispute between the accused and the deceased regarding the field and a day before the incident, a quarrel took place between accused Sawa and deceased Dewa regarding the theft of unriped Mango. Similar is the statement of Badda who was called by Kesu and Kalu and who went to the place of the incident. Similar is the statement of Badda S/o Bhera. PW 3 Raja alias Raju is the Ward Panch, who was informed regarding the incident by Vajja and Kesu and who, alongwith them, went to the place of the incident and in the presence of other witnesses, saw the deadbody of Dewa lying there. He thereafter sent Kalu, Vajja and Daula to lodge the report. He is, also, a Motbir witness to the preparation of site-plan, Panchnama and the recoveries of various articles. PW 4 Kesha has stated that on the day of the incident, when he returned from the work, his son Nanda and Homa informed him that Sawa has committed the murder of Dewa Baa by Kulhari and they had seen the incident from the hillock. After being informed by Nanda and Homa, he went to the house of Hakra and from there to the house of Ward Panch and all of them thereafter collected at the place of the incident and found injuries on the neck of Dewa in the light. Thereafter Kalu, Vajja and Daula were sent to lodge the report but he cannot say whether the shoes of the accused were lying there at that time or no. This witness is, also, a witness to the preparation of Panchnama - Lash Ex.P. 4. PW 5 Kalu was called by PW 3 Raju Ward Panch, Daula and Vajja. According to him Dewa was killed by Sawa. When they reached near the place of incident, Chaina, Badna, Nana, Daula and Kesha were there. He, alongwith Daula and Vajja went to lodge the report at the Police Station. PW 7 Tulsi is the daughter-in-law of the deceased. She has stated that her father-in-law Dewa was killed by Sawa. According to her, a day before- the incident, Sawa had committed the theft of unriped mangoes from their field and there was a dispute between Dewa and Sawa regarding the land. She has, however, admitted in the cross-examination that the land in dispute was in possession of the accused and he was not permitting them to enter into the field and had lodged an FIR against Dewa in which a charge-sheet was filed against Dewa. PW 8 Prem Chand is a Motbir witness to the recoveries and preparation of various memos in his presence. He is witness to the recovery of the blood-stained Kulhari from the house of the accused. He has stated that the Kulhari was recovered in his presence on 1.6.87 while Ex.P. 9 shows that the recovery of the Kulhari was made on 3.6.87. PW 9 Daula has stated that there was a dispute between accused Sawa and deceased Dewa regarding the land. After the murder of Dewa, he was called by Vajja, Kesu, Badda and others and when he went there, he saw the dead body of Deva lying there and found injuries on his neck. The plastic shoes were, also, there, Raju, the Ward Panch, wrote a report and gave it to them. He, Kalu and Vajja thereafter went to the Police Station and handed over the report to the police. PW 10 Chaina - the father of PW 3 Kesha has stated that Dewa and Sawa were his nephews. On the day of the incident he had gone for labour work in village Garniya. In the evening when he returned, he was informed by Soma, and Nanda that Sawa has killed Dewa in the slope of the hillock near Mahuwa tree on the bank of the Bandha and they had seen the accused committing the murder when they were eating Badla. He went at the place of the incident and saw Dewa lying on, the ground. Vajja and Kesa thereafter gone there and he asked them to call the villagers. They thereafter called Tola, Badda and Raju - the Ward Panch and all of them went near the deadbody of Dewa and in the light they found an injury on the neck of Dewa. Raju - the Ward Panch - t hereafter wrote the report which was given to Vajja to lodge at the Police Station. Vajja, Daula and Kalu thereafter went to the Police Station and lodged the report, PW 11 Nana has stated that there was a dispute between accused Sawa and the deceased regarding the land. When Dewa was murdered, at that time he and Gamna had gone to the hillock. In the evening they returned to their house. Chaina called him and all of them thereafter went to the place of the occurrence and saw in the light the injury on the neck of Dewa. In the morning, they saw shoes lying near the deadbody. PW 12 Dr. Surendra Singh conducted the post-mortem on the deadbody of Dewa. PW 13 Shanker Singh was the Station House Officer, who conducted the investigation and presented the challan. PW 14 Om Prakash was the Police Constable posted at Police Station, Gogunda on 15.6.97 and he took four sealed packets for F.S.L. examination and after obtaining the forwarding letter from the office of the Superintendent Police, Udaipur, deposited these sealed packets in the State Forensic Science Laboratory, Jaipur.