KALIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 17-6-86, passed by the District and Sessions Judge, Udaipur, by which the learned Sessions Judge convicted appellant Kalia for the offence under Section 302 IPC and accused-appellant Hoorta for the offence under Section 302/34 IPC.

(2.) Appellants Kalia and Hoorta along with accused Odiya were tried by the learned Sessions Judge, Udaipur, for the offences under Sections 302 and 201 read with Section 34 IPC. The case of the prosecution is that on 25-3-85, at about 5.00/6.00 p.m., Reshma (PW 1) his mother Smt Naju (PW 3) and father Poona, were coming from the jungle after grazing their she-goats and lambs, Reshma and his mother Smt. Naju were proceeding ahead while Poona was behind them. He heard the cries of his father "Maare Re Maare Re" and when he saw backward he saw that accused Kaila, Hoorta and Odiya were inflicting injuries to Poona. Odiya was armed with a bow and arrow while accused Kalia and Hoorta were armed with Kulharies. The first injury was inflicted by accused Kalia with the Kulhari on the right temporal region of Poona and thereafter accused Hoorta inflicted three injuries by the Kulhari near the lungs and scapular region. Accused Odiya caused injury to Poona by an arrow on his back. PW 1 Reshma tried to rescue his father but he was threatened of dire consequences by the accused. After inflicting the injuries, the accused ran away. The prosecution, in order its case, examined six witnesses. PW 1 Reshma and PW 3 Smt. Naju are the two eye witnesses of the occurrence who were with the deceased when they were coming back after grazing their she-goats and lambs. PW 2 Padma is a Motbir witnesses, in whose presence the site plan (Ex. P2) and the Panchnama (Ex. P3) were prepared. He is also, witness to the various recoveries. PW 4 Dr. Surendra Singh Zhala was the Medical Officer posted in the Government Hospital, Sayra, who conducted the post-mortem on the dead body of deceased Poona. PW 5 Gokal Nath is the Police Constable who took the sealed articles form the Malkhana of Police Station, Sayra, obtained the forwarding letter from the office of the Superintendent of Police. Udaipur and thereafter deposited the sealed articles for FSL examination to the State Forensic Science Laboratory, Jaipur. He has stated that the articles remained in the same sealed condition in which they were taken by him from the Police Station till they were deposited in the aforesaid Laboratory. PW 6 Mohan Singh was the Station House Officer, Police Station, Sayra, who conducted the investigation and submitted the challan against the accused. The accused, in their defence, examined DW 1 Dr. N. S. Kothari. The case of the accused-appellant Kalia, in defence, was that he had gone to jungle in search of his mare and in the way Poona and Reshma attacked him According to the defence story, Poona inflicted injury by an arrow while Reshma inflicted injury by Kulhari on the person of accused Kalia; he tried to ward-off the injuries and in that attempt his left-hand finger was injured. Thereafter he snatched the Kulhari from Reshma and in the right of private defence of his person when Poona tried to injure him by an arrow, he inflicted an injury to Poona by the Kulhari, Reshma pelted stoned on him and thereafter he ran away. The learned Sessions Judge, after trial, acquitted accused Odiya of the offence under Section 302 IPC as the deceased had no injury caused by any arrow on his person but he, however, found accused Kaila guilty of the offence under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and a fine of Rs. 50.00 and in default of payment of fine further to undergo two month's rigorous imprisonment. Accused-appellant Hoorta was acquitted of the offence under Section 302 IPC but was convicted for the offence under Section 302/34 IPC and was sentenced to the imprisonment for life and a fine of Rs. 50.00 and in default of payment of fine further to undergo two months' rigorous imprisonment. It is against this judgment dated 17-6-86, passed by the learned Sessions Judge, Udaipur, convicting and sentencing the accused-appellants that the appellants have preferred this appeal.

(3.) It is contended by the learned counsel for the appellants that the prosecution has failed to prove the case against the accused-appellants. According to him (i) there was no motive with the appellants to murder Poona. If at all there was any enmity then the enmity of Poona was with Heeriya and Kalia was a friend to Heeriya and he had no motive to commit the murder of Poona; (ii) there is an unexplained delay of thirteen hour in lodging the FIR and the prosecution case, therefore, deserves to be thrown-away on this count; (iii) accused Kalia had as many as five injuries on his person which have not been explained by the prosecution and Kalia, in exercise of his right or private defence of person, inflicted injury to Poona when he was trying to inflict injury to Kalia by an arrow; (iv) the prosecution evidence does not find support from the medical evidence as according to the ocular testimony of the witnesses, Poona, after receiving the head injury, fell on the ground with his back downwards and, therefore, the injuries on the scapula and back could not have been caused to him in that position; (v) the recovery of Kulhari alleged to have been made on the information and at the instance of the accused, does not connect the accused with the crime, firstly, because it was made from an open place accessible to all and secondly it was not found positive for human blood; and (vi) appellant Hoorta did not share any common intention with accused Kalia to cause murder of Poona. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the accused have been rightly convicted and sentenced by the learned trial Court.