DULI CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is, an appeal against the judgment of the learned Additional Sessions Judge, Raisinghnagar dated 30 -9 -1981 whereby the learned trial court has held the accused guilty of the offence under Section 302 IPC and has sentenced him to imprisonment for life together with a fine of Rs. 100/ - and in default to undergo rigorous imprisonment for three months by his order dated 1 -10 -1981.

(2.) THE facts giving rise to this appeal may briefly be stated as under. Accused Duli Chand who is a resident of Kalarkheda was working as a 'siri' (labourer) with deceased Manphoolram Kumhar, r/o 7 SHPD, who was cultivating the land of Shamda Musalman in village 56 INP by constructing a 'dhani' in the field. He took this land for cultivation on share basis. The accused was working as 'siri' with him for the past about 15 -20 days and they were living in that very 'dhani' which was constructed on the land of Shamda Musalman. It is alleged that before two days of the occurrence Manphoolram rebuked Duli Chand to work properly or else he may return the money advanced to him. This remonstration was not liked by him and so in the night intervening between 2nd and 3rd July, 1980 at about 11 or 12 he caught hold of a 'kassi' and inflicted blows to him both from the blunt as well as from the sharp side of the 'kassi.' Manphoolram's daughter Bugali and his niece Mst. Murti were living with him in that very 'dhani' and were sleeping on separate cots. These two girls woke up on hearing the cries of Manphoolram and the noise created by the movement of animals and the landing of blows. As soon as they woke up, they saw the accused inflicting blows with a 'kassi' to Manphoolram and thereafter the accused dragged Manphoolram from the cot whereupon was sleeping. The two girls asked him as to what he is doing whereupon accused replied to them that they should keep quite and go to sleep. Then they cried and the accused ran away from the place of the occurrence. These two girls then went to the 'dhani' of PW 2 Hazi Ahmed Khan and they informed him that the accused has killed Manphoolram with a 'kassi'. Hazi Ahmed Khan along with two girls went to the 'dhani' of Rajaram and there Hazi Ahmed Khan informed Rajaram about the entire occurrence. These two girls were there at that time, Rajaram came with them to the 'dhani' of Manphoolram and saw his dead body. Rajaram then sent a man to call the Sarpanch. The Sarpanch was not found at his residence. Rajaram then left Ram Chand, Banwari, Brijlal and others near the dead body and he went to Suratgarh to lodge a report of the incident He took the Sarpanch Chander Singh with him from Suratgarh. This FIR has been marked Ex.P 2. The Police went to the spot and inspected the site. The site plan has been marked Ex. P 8 and the site inspection memo was marked Ex. P 10. Panchnama of deceased was marked Ex. P 3, inquest memo of the dead body was marked as Ex. P 4, seizure of blood stained 'gudari', pillow and 'chola' was marked as Ex.P 5,seizure of blood stained bed -sheet and underwear was marked as Ex. P 6, seizure of blood stained earth and control soil was marked as Ex. P 7, arrest memo of accused was marked as Ex. P 11, information regarding blood stained 'kassi' given by accused Duli Chand was marked ss Ex. P 12, site from where the 'kassi' was recovered on the information given by accused was marked as Ex. P 9, post -mortem report of deceased was marked as Ex.13, and the report of Serologist and Chemical Examiner was marked as Ex. P 14. After usual investigation the case against the accused was challanged in the court of Munsif and Judicial Magistrate, Suratgarh from where it was committed for trial to the court of learned Additional Sessions Judge, Raisinghnagar, camp: Suratgarh.

(3.) WE have heard Mr. B.R. Arora for the appellant and Miss S. Sankhla, Public Prosecutor for the State. Mr. Arora has frankly conceded that it cannot be challenged that the accused was not working with Manphool Ram. Actually the accused himself has admitted that he was working with manphool Ram but he left the 'dhani' of Manphool Ram in the day at 2 p.m. for his village Kalarkheds because on 1st and 2nd March, Holi was to be celebrated and so he went to his village to celebrate it. His contention is that nobody has seen the actual occurrence. According to him when in the morning they came to know that Manphool Ram was killed by somebody, Hazi Ahmed Khan who is father of Niyamat Ali who had a grudge with Duli Chand and Manphool Ram conspired with Raja Ram along with the Sarpanch of the village to fasten the guilt on this innocent boy about 16 -17 years of age because he was not found in the 'dhani'. According to him two persons have taken part in the occurrence. This is clear from the fact that two types of injuries have been inflicted to the deceased, i.e., the first two injuries are by blunt weapons and the rest are by sharp weapon. The S.H.O. has recorded in the site inspection memo that two foot prints were found. Moulds could not be taken because of the dusty storm. He further suggested that two persons must have taken part in the occurrence. According to him if the accused has actually killed Manphool Ram on the cot itself, there was no reason for the accused to drag him from the cot He further suggests that these girls have not seen the occurrence. He has further submitted that only three cots were found at the spot and not four and that further belies the testimony of these two girls He has also submitted that actually it appears that the police came at the spot at 5 a.m. in the morning and inspected the site and then with the connvance of the police the entire false case has been cooked up against the accused. Regarding the recovery of the 'kassi' it is submitted that it was recovered from an open place and, therefore, no reliance can be placed on this recovery and moreover, according to the statement of PW 10 Badri Prasad only four packets were deposited in the police station whereas five packets were sent for chemical and serological examination as per the statement of PW 9 Phool Chand. It is quite possible that this fifth packet might be of the 'kassi' which has been found blood stained. According to him the motive has been alleged in the FIR but it appears to have been abandoned at the trial. He has also stated that as per the eye witnesses the 'kassi' was picked up by the accused from a diggi although it could not have been observed by them as they woke up at the fag end of the occurrence and hence no reliance should be placed on the testimony of the eye witnesses. He further drew our attention to the fact that in the FIR it has been mentioned that one small girl has accompanied Hazi Ahmed Khan which clearly shows that Murti was not present at the time of occurrence, On the basis of these submissions made by him he requested that the accused deserve the benefit of doubt and consequent acquittal.