KISHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a criminal appeal filed by Kishan Singh against the judgment of the Additional Sessions Judge, Udaipur, date February 22, 1973, by which the appellant was convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life.

(2.) THE incident that led to the arrest and prosecution of the appellant may be briefly described as follows : Ram Singh, deceased, was married to Mst. Dhanni. He used to live with his wife in village Kachwali. He owned and possessed some land which he cultivated He was interested in singing religious songs About ten years before his murder, he went to Ahmedabad for earning his livelihood. From there he used to pay visits to his village once or twice in a year Krshansingh appellant was the disciple of Ram Singh, deceased. In his absence, the appellant was asked by the deceased to cultivate his land. During the absence of the deceased from his village the appellant developed illicit intimacy with Mst. Dhanni, who gave birth loan illegitimate son. Barn Singh returned from Ahmedabad but inspite of his return the appellant continued to have illicit relations with the wife of the deceased. The illicit relations between the appellant and Mst. Dhanni were known to toe villagers who frequently talked amongst themselves about the a This caused annoyance to the deceased who turned out his wife Mst. Dhanni from his house after depriving her of all the ornaments Mst Dhanni along with her daughter ml son began to live with her parents. After some time she went to her sister's house and stayed with her sister. While she was staying at her sister's house, the appellant visited her and asked her to come back to her husband's house, because her husband Ram Singh, deceased, was alienating his entire property. Mst. Dhanni declined to return home but, upon persuasions by the appellant and her brother, she eventually came back to village Kachwali with her brother in law. Ram Singh, deceased, thereupon convened a meeting of the Panchayat. In the meeting he agreed to keep Mst. Dhanni in his house on the express condition that in future she would have no illicit connections with the appellant and that the appellant would never come to his home Mt. Dhanni agreed to abide by the aforesaid conditions and so Ram Singh brought her to his house and gave her some ornaments After five or six days of her return to her husband's house the appellant met her clandestinely and told her that he would kill her husband Ram Singh as the latter had defamed him in the meeting the Panchayat. Mst. Dhanni requested the appellant not to kill her husband but the appellant was adamant. He told Mst. Dhanni that he would get some letters containing threats to the life of Ram Singh and purported to have been written by Bhils, affixed on a conspicuous part of his rouse in order to shift the responsibility of his murder on the Bhils. The after, the appellant carried cut his above plan in execution and affixed two such letters with some interval on the conspicuous part of the house of Ram Singh On seeing those letters the deceased consulted Basti Mal Mahajan and Mala Ram who advised him to hand over those letters to the police for investigation into the matter. In pursuance to the advice given to Ram Singh deceased, the two letters were produced by him before Sukh Lal, Literate Constable at police out -post Baggar, on May 9, 1972. Upon receipt of the letters Sukh Lal proceeded to make an inquiry from the Bhils with whom the deceased had a quarrel over some land. Upon inquiry the Bhils disclosed in the presence of the deceased that there was no dispute between the parties over the land. The deceased also admitted before Sukh Lal that no dispute existed between him and the Bhils over the land. The appellant, however, continued to pay visits to Mst. Dhanni in the absence of her husband and on one occasion he gave her some medicine with a direction that she should give it to Ram Singh after mixing it in the bread. Mst. Dhanni at first refused to mix the poisonous medicine in the food to be given to her husband but, later on, when threatened to do so by the appellant, she mixed the poisonous element in the bread and give the bread to her husband for eating. Ramsingh ate the bread and vomitted the whole day. He did not die of the poisoning as the village Vardya came to his help and treated him well. As a result of the poison given to him R.S. however, fell ill and was confined to bed for two or three days, Four of five days after this incident the appellant again visited Mst. Dhanni and asked her to give another dose of poison to her husband but Mst. Dhanni declined to do so. Thereupon, the appellant held out threats to her and told her expressly that he would kill Ram Singh at any cost. The appellant made it clear to Mst. Dhanni that if she disclosed this fact to any body -else, she also would be killed by him Thereafter, on May 9, 1972, Mst. Dhanni asent to the house of Hira Singh, with her son Sardara and her nephew Puniya at about 8 or 9 p.m. to attend the marriage ceremony of the latter's son. The deceased also had gone out for singing religious songs in some temple Mst. Dhanni returned from the house of Hira Singh in the mid -night. When she came back to her house, she saw Ram Singh sleeping on a cot over a Ghabutra of his house. Her son Sardara slept on the roof of the house. Mst Dhanni went to sleep outside the gate of the house in the Verandah. Her nephew Puniya also slept on the ground near the cot of Ram Singh deceased. The deceased came inside the house and after staying there for some minutes, again went out for sleeping on the cot Mst. Dhanni and her son had gone to sleep, she woke up all of a sudden on account of her sleep being disturbed by a sound produced by dashing a stone against the head of some person. She immediately there after heard voice of 'Aha' 'Aha' coming from the throat of her husband On hearing the voice, Mst. Dhanni ran to the place where her husband was sleeping and saw the deceased moving one of his hands without uttering any word. Mst. Dhanni then saw Kishan Singh appellant scaling over the wall of an enclosure having an axe in his hand. She called the appellant but the latter ran away from there without responding to her call Mst. Dhanni then raised a hue and cry which attracted Tila Singh, Raju Singh and Moti Singh and some other villagers to the place of occurrence. After a short while other villagers also came there along with Kishan Singh appellant. At that time the appellant told the villagers that Ram Singh deceased should not have slept outside his house when he had enmity with Bhils. A written report of this incident was made by Tila Singh with the Station House Officer, at police station, Deogarh, on May 9, 1972 at 7.30 a.m. The Station House Officer registered a criminal case under Section 302, IPC on the basis of the report and took up the usual investigation info the matter. Naravan Singh, Station House Officer, rushed to the place of occurrence and prepared a site -plan and a site inspection memo. He saw one stone lying by the side of the cot of the deceased. He took that stone into his possession He inspected the dead body of Ram Singh and found multiple injuries on the head and thigh thereof He prepared a Parchnama and took one bloodstained 'Gadela' and a bed -sheet into his possession. Then he handed over the investigation of this case to Shri Kameshwar Prasad, Circle Officer, who arrested the appellant vide memo of arrest Ex P 7 on May 9, 1972. After his arrest, the appellant, while in the police custody, gave the Circle Officer an information that he had kept concealed one axe having wooden handle behind and earthen container lying in his house and that he was ready and willing to get recovered at his instance. The appellant further informed the Circle Officer than he had got two letters written one by Bheru Singh Rawat and Anr. by Shanker Lal for affixing them on the house of the deceased. The Circle Officer recorded the above information in a memo Ex P 17 and recovered the axe with its wooden handle from the house of appellant wherein it was lying behind the furthers container commonly used for storing grain. As the axe with its wooden handle had stains of blood on it, it was seized and sealed by the Circle Officer in the presence of Motbirs. Then postmortem examination over the dead body of Ram Singh was performed at the place of occurrence by Dr Arun Kumar, Medical Officer, Primary Health Centre, Deogarh, the very day, i.e. on May 9, 1972. Upon examination the Doctor found the following injuries on the body of Ram Singh: 1. transverse lacerated wound 2 1/2' x 1/2' x bone deep on right forehead; 2. punctured wound 3/4' x 1/8' x 3' on anterior surface of right thigh;

(3.) WE have given our anxious consideration to the rival contentions. The prosecution had relied upon the evidence of Mst. Dhanni, wife of the deceased, who claimed to have seen the appellant scaling down the wall of her enclosure soon after the occurrence with an axe in his hand. The evidence of Mat. Dhanni is that she was having illicit relations with the appellant during the absence of her husband from the village in which she lived. She further stated in her deposition that the villagers frequently talked of her illicit intimacy with the appellant even after the return of her husband from Ahmedabad. This caused great annoyance to her husband who turned her out of his house after depriving her of all the ornaments. When she was turned out of her husband house, she began to live with her parents for some time and then went to her sister's house where from she was brought again to her husband's house by the appellant and her brother -in -law. Her husband convened a Panchayat before allowing her to live wish him. In the meeting of the Panchayat her husband agreed to permit her to live with him upon an express condition that she would not have illicit intimacy with the appellant in future and would not allow the appellant to meet her in her husband's house. Mst. Dhanni agreed to abide by the above terms and so she was allowed by the deceased to live with him. Mst Dhanni, however, admitted that she once gave her husband poison in a bread at the instance of the appellant but her husband survived after being treated well by the village Vaidya. She further admitted that the appellant again asked her to give poison to her husband but she declined to do so. According to her version, the appellant expressly told her that he would kill Ram Singh deceased. On the day of occurrence she claimed to have been sleeping in the verandah at some distance from her husband who was lying asleep on a; cot on a Chabutra of his house In the night she woke up as her sleep was disturbed by a sound produced by a stone having been dashed against the head of some -one. When she -woke -up, she heard cries 'Aha -Aha' coming from the throat of her husband. There upon, she rushed to the place where her husband was lying on the cot. She saw her husband waiving one of his hands without uttering any word from his mouth. She then saw the appellant jumping down over the wall of her enclosure having an axe in her hand. She called the appellant but the latter ran away without responding to her call.