THAWARA AND DUBBAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) APPELLANTS Dubbal and Thawara have been convict ted under section 302 read with section 34 I. P. C. and sentenced to imprisonment for life by the learned Sessions Judge, Dungarpur and to a fine of Rs. 100/- and in default of the payment thereof to rigorous imprisonment for one month.

(2.) THE appellants were tried by the learned Sessions Judge. Dungarpur and both of them were charged under sec. 302 read with sec. 34 I. P. C for the murder of Laxman s/o Valji Wagadia resident of Dhangaon, P. S. Galiyakot, District Dungarpur Prosecution alleged that the deceased Laxman was having illicit relationship with Smt. Ratan D W. 4 wife of Deva. Dubbal appellant is uncle-in-law of Smt. Ratan D. W. 4 and Thawara appellant is her husband Deva's elder brother. Valji, husband of Smt. Kaudi PW 5 and Lalji, were brothers. Gulabji, Lala P. W. 6 and Laxman deceased were brothers, Gulabji, Lala P. W. 6 and Laxman deceased were sons of Smt. Kaudi widow of Valji. Bheema PW. 8 was son of Lalji who was Smt. Kaudi's husband's elder brother. On December 14, 1979 at 10. 30 P. M. Bheema P. W. 8 lodged an oral First Information Report at Police Station, Galiyakot stating that on December 13, 1979 at about 10 or 11 A. M. Smt. Kaudi P. W. 8 and her sons Lala P. W. 6 and Laxman deceased were sitting in the "parsal" of their house in village Dhangaon. Bheema P. W. 8 was also sitting at that time in the' parasal" of his house which was adjoining the house of Smt. Kaudi P. W. 5. At that time both the appellants and Dhanji brother of Dubbal appellant came in the compound of Smt. Kaudi's house armed with lathies and asked Laxman deceased as to why he had abducted Smt. Ratan wife of Deva. Thawara appellant then dragged Laxman and brought him out side the "parsal" of Smt. Kaudi's house and thereafter both the appellants and Dhanji started beating Laxman with "lakries". Laxman raised a cry and on hearing that his elder brother Galab and Galab's wife Smt. Champi PW. 4 came on the place of the incident from their field. THE appellants and Dhanji inflicted injuries on the head and neck of Laxman with "lakries" as a result of which Laxman fell down. Bheema and others could not rescue Laxman out of fear and the appellants and Dhanji taking Laxman to be dead ran away. It was stated by Bheema that the appellants had beaten Laxman on account of this enmity that about a month before the date of incident Laxman had brought Smt. Ratan wife of Deva after abducting her and the appellants and Dhanji had later on taken her back. Laxman succumbed to the injuries sustained by him at 4 or 5 P. M. Bheema stated to the S. H. O. that he has come to the Police Station to lodge the First Information Report after leaving the dead body of Laxman in the care of Lala and Galabji. After necessary investigation, the Police filed a charge - sheet against the appellants before the Munsif-cum-Judicial Magistrate, Dhanji co-accused was reported to be absconding. THE Judicial Magistrate, Sagwara by his order dated March 21, 1980 committed the appellants for trial to the court of Sessions Judge, Dungarpur. THE learned Sessions Judge charged the appellants under section 302 read with section 34 I. P. C. and after trial convicted both of them for the said offence and sentenced them as aforesaid.

(3.) IT would thus appear that it is not in dispute that on the day of the incident Laxman deceased was beaten to death. What is in dispute is that according to the statement of Smt. Ratan D. W. 4, it was hania absconding-aceused who had committed the crime and not the appellants. On going through the pro-section evidence we find that Smt Kaodi PW, 5 and Lalla P. W. 6 have deposed against the appellants as eyewitnesses to the incident. As has already been stated Kaodi was mother and Lalla was elder brother of Laxman deceased. They have deposed that on the date of the incident Kaodi, Lalla and Laxman were sitting under the 'dhal' of their house and at about 10 A M. the appellants and Dhania armed with lathies came there and Thawara appellant inflicted lathi blow on the head of Laxman while Dubbal appellant inflicted the next blow on the head of Laxman bylathi. Dhanji or Dhania absconding accused inflicted a lathi blow in the back of Laxman. Both Kaodi and Lalla did not try to rescue Laxman cut of fear that the appellants would also cause injury to them. The learned Sessions Judge has believed the testimony of both these eyewitnesses.