SUJIA & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellants Sujia son of Pola and Varda son of Khangars have preferred this appeal against the judgment of the Additional Sessions Judge, Jalore, dated Sept. 16, 1974 sentencing the former under section 323 Penal Code to one year rigorous imprisonment and the latter under section 325 I. P. C. to three years rigorous imprisonment and a fine of Rs. 200.00 As many as 18 persons were prosecuted on the first information report of complainant Khetia in police station Umaidpur.

(2.) The prosecution case as disclosed in the first information report was this. On 23-3-1973 in the evening at about sunset the complainant, his father Hirka, Bhakura, Sadia, Teekma, Asiyan, and Jawanriya were making conversation in their house. At that time as many as 18 accused came. Shivnath was armed with a 'dhariya' and the rest with lathis. They attacked the complainant party. Accused Pola caught hold of Hirka and Shivnath and Sujia began to beat him. Varda gave a lathi blow to his head. Other persons were also given beating. Shanti was caused injuries by Sujia, Thereafter the 'dhani' of the complainant party was set on fire. On this information a case under section 307, 147, 148, 149, 452 and 436 Penal Code was registered and the usual investigation was taken up in hand. Hirka succumbed to his head injury and thereafter the case was altered to one under section 302 IPC. Postmortem was conducted by Dr. Raman Verma. Other injured were also medically examined. All the accused were committed by the Munsif Magistrate, Jalore. The appellants and the other accused persons pleaded not guilty to the charges and claimed trial. The learned Sessions Judge disbelieved most of the prosecution case but came to the conclusion that it was established that Sujia gave a lathi blow to the head of Mst. Shanti and further Varda caused a head injury which ultimately proved fatal to Hirka.

(3.) I have heard learned counsel for the appellants and the learned Public Prosecutor and perused the record of the case carefully. It was argued by the learned counsel for the appellants that as many as 16 persons were sought to be implicated false and a much exaggerated version of the incident was given out in the F.I.R. That apart, the witnesses have prevaricated in material aspects from their earlier statements given in the police. They did not afford any explanation for such prevarication. The core and substratum of the prosecution case, therefore, stood destroyed and it would be unsafe to base any conviction on their testimony. The learned Public Prosecutor however, supported the prosecution case and stated that as regards the two appellants, there was no infirmity in the prosecution case. Their role was specifically described in the F. I. R. I have considered the rival contention very carefully. The case of appellant Sujia need not detain me for a moment because his conviction is based only on the statement of P. W. 6 Mst. Shanti. None of the other witnesses are prepared to depose that Sujia gave a lathi blow on the head of Mst. Shanti. In my opinion the solitary statement of Shanti is insufficient to prove any case against Sujia. She has also prevaricated from her police statement Ex. D. 8 wherein she did not state that Varda gave a blow to the head of Hirka, and Polia caught hold of him. I am, therefore, of the opinion that looking to the F. I. R. it is not possible to believe the statement of Shanti on this point that she was given an injury by appellant Sujia when she is not deposing to the rest of the incident as disclosed in the F. I. R. on the pretext that she became unconscious.