KISHORE ALIAS KIRPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) APPELLANT Kishore alias Kirpal has been convicted Undes/Section. 302, IPC and sentenced to imprisonment for life and a fine of Rs. 100/ -by the learned Addl. Sessions Judge, Rajasamand, by his judgment dated 25 -3 -1983. He has come up in appeal.

(2.) THE prosecution story briefly stated is as under: PW 9 Mahant I algiri has a 'Jamat' of 25 saints (SHANT) and he is the 'Mahant' of that 'Jamat'. Deceased Sadhu Dadhu Ram, who was known as Bhandari, originaly belonged to some other Jamat but had joined the Jamat of Mahant Lalgiri. Accused Kishore was the Mahot of the elephant kept by Lalgiri's Jamat. This Jamat was to reach Nathdwara on 12 -12 -1981. It appears that the deceased Bhandari along with PW7 Jagdish and the accused Kishore had reached village Bijnoi on their way to Nathdwara and had night halt there. It is alleged that at about 6.00 a.m. on 11 -12 -1981 deceased Bhandari and accused Kishore along with the elephant had gone to take bath the 'Bawai' near village Bijnoi. They did not turn up for about two hours. Where upon Jagdish made a search for them. He found the dead body of Bhandari lying in the Bawari. He, thereupon, informed Sarpanch Gamer Lal PW 2 of this incident. Gamerlal then went to Police Station Nathdwara and lodged the First Information Report Ex. P 1 at about 10 00 a.m. The police started inquiry under Section 174 Cr. PC Khem Ram PW 18 reached the spot and inspected the site and prepared Ex. P 2 site Inspection Note He also prepared Inquest Report of the dead body of deceased Bhandari. He has also recovered some blood stained earth from the spot vide Ex.P 4. He is also alleged to have recovered a Mala dana a towel of the deceased said to be lying at the spot, vide Ex P. 6. The dead body was sent for post mortem examina -tion at about 1.00 p.m. Dr. Magh Kumar Sirohia PW 10 carried out the post mortem examination and found that there was an incised wound of 3' x 1/8' x 2 size situated at the root of neck posteriorly and over left supra scapular region little obliquely. The wound while passing had cut -down skin, fescia, muscles and vessels which came in the way and reached to the cervical spines which were visible through the wound. According to him this injury had been caused by a sharp edged weapon. He was, further of the opinion that the cause of death was massive haemorrhage from the incised wound leading to shock and syncope; Asphyxia resulting due to drowning, and that the death had taken place within about 8 hours from the autopsy. He also found that the small intestines contained semi -digested food only and large intestines were empty. It, further, appears that at about 2.00 p.m. after the post mortem report was received, the case was registered under Section 302 IPC and futher investigations were taken over by Shri Sangram Singh along with the Dy. S.P. Shri Anand Vardhan PW 16 and PW 12 respectively. It will also be proper to mention here that the FIR was sent to the Police Station Nathdwara where it reached at about 6 00 p.m. and the formal case under Section 302 IPC was registered there at, about 6 00 p.m. Later the accused Kishore was arrested at his village Udaipur and was brought to Nathdwara, where his formal arrest was made by Shri Sangram Singh PW 16 vide Ex.P. 12. It is also alleged that at the time of the arrest of the appellant a Hanry Sandow wrist watch and armed 'BANDI' said to be belonging to deceased Bhandari were recovered from the person of the accused and later -on, on information said to have been given by the accused to Shri Anand Vardhan, Dy. S.P. vide Ex.P. 10, an axe was got recovered from the accused vide Ex.P. 7. It also appears that during the course of the investigations one Fateh Singh PW1 was examined who is said to have heard the cries of the deceased and seen the accused coming out of the Bawri with an axe in his hand. After completing the investigations,the police put up challan against accused Kishore and he was committed to the Court of Additional Sessions Judge Rajsamand. He pleaded not guilty to the charge under Section 302 IPC framed against him and claimed to be tried. The prosecution examined 18 witnesses and produced about 20 documents. He denied the prosecution story and examined one Udairam as his defence witness. After hearing the learned Public Prosecutor and the learned Counsel for the accused, the learned Addl. Sessions Judge convicted and sentenced the appellant as aforesaid.

(3.) THE learned Counsel for the appellant submits that Fateh Singh is not at all a reliable witness and appears to be a faded up one. His conduct totally belies him the recovery of the watch and the Bandi of the deceased from the process of the accused is all highly doubtful as it could not be envisaged that the accused would be wearing watch and the Bandi by the deceased so that he can easily be spoted. More it is not shown as to exactly where and in what circumstances the accused was arrested. So far as the recovery of the axe is concerned, it is said to be from an open field, not in possession of the accused and the axe has also not been found to be stained with human blood. The evidence of Jagdish PW 7 about the deceased and the accused being last seen together also according to him is unworthy of credence and in any case even if this circumstance of being last seen together with the deceased is accepted against the accused, it is not at all sufficient to hold the accused guilty.