DHENIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Two brothers Dheniya and Cheniya were prosecuted on a charge under Secs. 302/34 and 201 IPC for having caused the death of their father Sardara. After trial, the learned AddI. Sessions Judge, Sri Ganganagar, acquitted Cheniya but convicted accused Dheniya on a charge under Sec. 302 IPC as also under Sec. 201 IPC. He was sentenced to life imprisonment on the charge under Sec. 302 IPC and to four yearsT RI on the charge under Sec. 201 IPC with a fine of Rs. fifty.

(2.) The only evidence against the appellant is the extra judicial confession made to one Moti Singh Upsarpanch of the village and the information under Sec. 27 of the Evidence Act, which is said to have led to the discovery of the place of occurrence, the place of recovery of dead body, the weapon of crime, the axe and the recovery of shoes of the deceased. The learned AddI. Sessions Judge also held that the appellant had motive to do away with his father.

(3.) The main evidence on which the conviction is based is that of extra-judicial confession, said to have been made to PW-5 Moti Singh. Moti Singh, PW-5, was the person who lodged the FIR Ex. P6. In the FIR, he had stated that appellant Dheniya had informed him about the altercation, he and his brother Cheniya had with his father and then informed him that Cheniya gave a Gandasi blow on the head of the deceased. The only role which he is said to have attributed to himself as per the FIR version was that he had caught the deceased by hand, when his brother Cheniya was assaulting. PW-5 Moti Singh in his examination-in-chief had given the version that appellant Dheniya had confessed to him that he himself had given the TGandasiT blow to his father, the deceased. In cross-examination when he was confronted with the FIR, he stated that he did not remember as to why he had stated in the FIR that Cheniya had given the Gandasi blow as seven eight months had elapsed between the lodging of the FIR and recording of statement. He, however, asserted that the version given by him in the court was the true version. This is a serious discrepancy in the evidence of the PW5 Moti Singh and the learned AddI. Sessions Judge failed to notice its impact on the veracity of the witness. In the judgment in paragraph 45, the learned AddI. Sessions Judge, while discussing this aspect of the matter, has observed that in the said confessional statement, the appellant had fully incriminated himself, though main part of causing the hurt of the deceased with an axe had been attributed to Cheniya, the other accused. It has also been observed that Moti Singh corroborated the version given by him in the FIR in respect to the confessional statement of the accused in the court as well. We find that the discrepancy in the evidence pointed out above has not been carefully considered by the learned AddI. Sessions Judge at all. The observation that the Fill version as to the confessional statement of the accused was corroborated by PW-5 Moti Singh in the court, has no foundation in the evidence. In our considered opinion, the only confessional statement which could be said to have been given by the appellant was that he had caught hold of his father by hand, while he was assaulted by the co-accused Cheniya Cheniya has already been acquitted by the learned AddI. Sessions Judge. We do not find that the confession as to the commission of murder by the appellant was ever made. The difference between the FIR version and the statement of PW-5 Moti Singh cannot be ignored and it has to be held that the extra judicial confession as to murder has not been proved.