KHEMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant has been convicted Under Sec. 302 of the Indian Penal Code and Sec. 323 of the Indian Penal Code and sentenced to life imprisonment and six months simple imprisonment respectively for the aforesaid offences.

(2.) On 24.4.1990 at 7.00 a.m. one Dhanna S/o Kalu lodged a first information report alleging that Megha and Hukla came to him and informed that Khema S/o Veerji Kharani, accused-appellant had killed his brother Dhula. On receiving this information he went to the spot and saw that Dhula was lying dead and Dhula's wife Navli was lying injured in an unconscious state. Dhula's son Bhanwaria met Dhanna on the spot and told him that his father was killed by accused Khema with an axe and had also assaulted his mother Navli. Navli, Bhanwaria and Nana were stated to be eye-witnesses in the FIR. The defence is of total denial. The learned counsel for the appellant submitted that out of the persons stated to be eye-witnesses PW 1 Nana and PW 7 Bhanwaru had turned hostile, Mogli and Soma were not examined by the prosecution and PW 12 Navli was the only witness who had not gone against the prosecution. It was also submitted that on the extrajudicial confession, Amra was not examined and PW 3 Sardara, PW 10 Hukla were declared hostile and only Megha PW 11 supported the prosecution. It was also contended that looking to the injuries it would at best be a case Under section 304 Part 11 of the Indian Penal Code and not Under Sec. 302 of the Indian Penal Code.

(3.) PW 1 Nana stated that he heard the cries of his brother's wife Navli and went to the spot and saw that his brother Dhula was lying there and brother Khema and sister Mogli were standing there. Khema was standing there with an axe in his hand. At this stage he was declared hostile and cross-examined by the Public Prosecutor. On being confronted by the statement as Under section 161 Criminal Procedure Code, the witness admitted having made the statements confronted to him before the police. He also admitted that the accused had confessed before Panchas and had stated that he had committed a mistake. From his testimony it is clear that the witness was resiling because of his relationship with the accused and he was trying to save the accused. PW 2 Dhana who had lodged the FIR supported the prosecution in his statement. PW 3 Sardara did not support the prosecution. PW 7 Bhanwaru, PW 9 Hurji and PW 10 Hukla also turned hostile and did not support the prosecution. PW 11 Megha deposed that Bhanwaria informed him about the accused killing Dhula and when he went on the spot and asked Khema as to who killed Dhula, Khema replied that Dhula died at his hands. At that time Dhanna, Hukla, Sardara, Megha and Amra were present and no one else was there.