JEPLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal by the accused is directed against the judgment dated October 13, 1978, of the Sessions Judge, Jalore, convicting and sentencing the appellants for the offences under Section 367/34 and 326/34 IPC to five years' rigorous imprisonment and a fine of Rs. 500/ -, in default of payment of fine to six months' further rigorous imprisonment under each count and for the offence under Section 441/34, IPC to one month's simple imprisonment and under Section 323/34, IPC to six months' rigorous imprisonment. All the sentences have been ordered to run concurrently.

(2.) THE case relates to the incident which took place in the night intervening 12th and 13th August, 1977 in village Narsana, District Jalore. The prosecution case, in brief, was that Bhera Rajput of Narsana, on the night of occurrence, was sleeping outside his Jhoonpa, accused Jelpa came there and woke him up and asked him as to why he was demanding money from him. Bhera told him not to pay the money but Jelpa sat on his chest. Accused Kalia, Dhalki and Japli also reached there. The prosecution case further was that Jepla tied an Angochha round his face and then took him to Jepla's house. There he was tied with a Thambli, and then Jepla inflicted a cut on his nose by a knife. A knife blow was inflicted on his ears and he was beaten with Halwani and also with lathis. On hearing the alarms of Bhera Chhogalal came to Jepla's Jhoonpa and then reported the matter to the police Constables Balwanta Ram and Dana Ram were sent there. They freed Bhera and took him to the Police Chowki. There a report was written and Bhera was sent to the hospital where his injuries were examined by Dr. Purshottam Dass Purohit. 10 injuries were found on his body, out of which two were by a sharp edged weapon and the rest were by a blunt weapon. The report was lodged at police station, Bhagoda on August 13, 1977 at 2.00 p.m. On this a case under Sections 326, 342 and 323, Indian Penal Code was registered. During investigation the accused were arrested. On August 15, 1977, on the information and at the instance of accused Jepla a knife was recovered and on the Information and at the instance of accused Kalia a lathi was recovered. After investigation the police submitted a charge -sheet in the court of Judicial Magistrate, Bhinmal against the appellants and Mst. Dhalki. It is alleged that Mst. Jepla died a homicidal death. The learned Magistrate committed the accused to the court of Sessions for trial, where they were tried for the offences under Section 367/34, 341/34, 326/34 and 323/34, IPC. When their plea was recorded the accused pleaded not guilty and claimed to be tried.

(3.) APPEARING for the appellants Jepla and Kalia, learned Counsel Shri Bhandari has at the outset urged that the prosecution case that the accused went to the house oe Bhera and brought him to their own house during the night of occurrence is not at all believable. There is force in the arguments of learned Counsel for the appellants. This part of the prosecution case is sought to be proved by the evidence of Bhera injured alone. No site plan in respect of the incident alleged to have taken place at Bhera's house was prepared during investigation. No supporting evidence is forthcoming. Bhera was a young man of 25 years of age. The distance between the house of Bhera and Jepla is about 100 Pawandas i.e. 500 ft. and the area is thickly populated. It is difficult to believe, argues learned Counsel, that while a young man would be forcibly carried, no one would hear and come to his rescue. It is also difficult to accept the prosecution version that two ladies, more particularly Mst. Jepli, would accompany the accused for bringing Bhera to their house. The prosecution case that the accused wanted to beat Bhera as the later was demanding money was not accepted by the learned Sessions Judge and rightly as it was an obvious improvement made in the court by Bhera. In his police statement, he had stated that he was having illicit relations with Mst. Jepli and had earlier taken her and kept her at Ahmedabad. This part was abondoned in the court and a new story regarding the demand of money was introduced. More over according to the prosecution all the accused went to the house of Bhera armed with Dhariyas and lathies and if so, why would they spare him while he was asleep and would take him to their house and inflict injuries there. To me, the prosecution story that the accused including the two ladies went to the house of Bhera and brought him forcibly to Jepla's house, does not appear to be free from suspicion. One cannot lose sight of the fact the deceased was earlier having illicit relations with Mst. Jepli and had taken her and kept her at Ahmedabad and there is nothing unusual if he again made an attempt to reach Jepli, and with that intent went to Jepla's house and was caught there by the accused. If this story of the accused going to the house of Bhera and bringing him forcibly to their house is disbelieved, the offence under Section 367/34, IPC would fail against both the accused and to this extent I accept the contention of the learned Counsel for the appellants.