MOTI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is preferred against the judgement of learned Sessions Judge, Udaipur, dated 22-7-1977 by which the appellant Moti son of Goda Bheelwas convicted and sentenced under section 302, 326 and 210 I.P.C. as under:- <FRM>JUDGEMENT_55_LAWS(RAJ)7_19791.html</FRM>

(2.) The prosecution case was as follows Pratabi was the wife of the appellant Moti and she did not like to live with the appellant and wanted to go elswhere. On 12-10-75 because of some quarrel, appellant with his teeth cut the nose of Pratabi. She, therefore, went to the house of her sister Khumani. Pratabi then left the house of her sister and proceeded on to the house of her father situated in village Pasonian. Appellant saw Pratabi going to village Pasonian in the way and caught hold of her. He brought her to his house. Appellant Moti had a child of about 9 months. He asked Pratabi to feed the child but the latter declined and threw away the child. She also refused to cook the food and, thereafter, threw a stone which hit the appellant on his teeth. Moti then gave a kick with leg on the back of Pratabi. She fell down. Appellant then sat on the chest of Pratabi and strangulated her with a piece of 'Odhni' (cloth used for covering the head). One Lakma helped him in strangulating Pratabi, who died as a result of strangulation. Her dead body was burried in a pit in the house. The appellant then with the piece of the nose which he had cut went to Nathdwara and consulted Kanhaiya Lal , advocate. The appellant narrated the entire story to Kanhaiya-Lal, appellant then paid fees to Kanhaiyalal who accompanied the appellant to his house and saw the site. Kanhaiyalal advised the appellant to drop the dead body of Pratabi in a well. The appellant, thereafter, with the help of Lakma took the dead body of Pratabi to a well known as 'Rabari ka kua' and dropped it therein, Kalu and Raju the two brothers of Pratabi came to the appellant and enquired about their sister. The appellant replied that he did not know about the whereabouts of Pratabi. On 14.10.1976 the dead body of Pratabi was discovered in the well by P. W. 1, Govindlal. After seeing the dead body, Govindlal rushed to police station Nathdwara and lodged a written report Ex. P. 1 Head Constable Kalu Lal on the next day recovered the dead body of Pratabi and got it examined by the Medical Officer, Gordhan Hospital, Nath-dwara. The Head Constable also prepared inquest memo of the dead body, inspected the site and prepared site inspection memo and map Ex. P. 3. The appellant was arrested on 15.10.75. He was then wearing a shirt, a 'dhoti' and a 'safa'. As it was suspected that these clothes were stained with blood, they were seized and sealed by the police. While in police custody appellant Moti gave information under section 27 of the Indian Evidence Act that he had concealed a piece of 'Odhni' amongst some clothes in his room. As a consequence of this information this piece of 'Odhni' was seized at the instance of the appellant and sealed. The seized articles were sent to the Chemical Examiner who in turn send them to Serologist. From the report of the Chemical Examiner it appears that this piece of 'odhni' was not stained with blood but he found blood on shirt and 'Pachewda' which were recovered from the person of the appellant. During the course of investigation the appellant desire to confess and, therefore, on 29-10-1975 he was produced before P. W. 17 Pradeep Shah, Additional Munsif Magistrate, Rajsamand, who recorded his confessional statement Ex. P. 25. After completing the investigation, the police preferred two charge sheets in the court of Munsif Magistrate, Nathdwara. One charge sheet was filed against Kanhaiya Lal and Durga Shankar. As it appeared to the Munsif Magistrate, Nathdwara that the offence was triable exclusively by the court of session, he committed the case to the court of session, Udaipur. The learned Sessions Judge discharge accused Durga Shankar and framed charges under section 201/100 and 120-B against Kanhaiya Lal .Charges under section 302, 326, 201 and 120-B were framed against Moti, Goda and Lakma. Accused denied the offence and claimed trial. The learned Sessions Judge held the trial and acquitted Goda, Lakma, and Kanhaiyalal of the offences with which they were charged and convicted and sentenced the appellant Moti in the manner stated above. Aggrieved by this judgement of conviction the appellant has preferred this appeal.

(3.) We have heard the learned counsel for the appellant and the learned Public Prosecutor and carefully perused the record of the case. At the outset it may be stated that there was no eye witness of the incident and the learned Sessions Judge in convicting the appellant relied upon the following circumstances :