GHEWARIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE prosecution story, briefly stated, is that deceased Ram Bahadur Rana as also PW 5 V. M. Bhai, and PW 4 N. S. Mali are in the military service and reside in Ratanada, Jodhpur. Smt. Brij Rani is w/o deceased Ram Bahadur Rana. Smt. Hema is w/o V. M. Bhai. Accused Ghewaria carries on a grocery shop in Ratanada a little away from the house of the deceased and Smt. Brij Rani used to make purchases from this shop. Co-accused Badri is a friend of Ghewaria and often sits at that shop. On 13-7-1981, at about 7. 30 p. m. deceased Ram Bahadur Rana and his wife Smt, Brij Rani on one bicycle and V. M. Bhai and his wife Smt. Hema on another bicycle were going to Shiv Mandir. On their way, accused Ghewaria and Badri came on another bicycle & it is alleged that Ghewaria touched the shoulder of Smt Brij Rani and made a vulgar remark "yaha Mal Kaisa Hai. On this, Ram Bahadur Rana got annoyed and appears to have abused the accused. On this, the accused stopped their bicycle a little ahead that of Ram Bahadur Rana and asked Ram Bahadur Rana what the matter was. Ram Bahadur Rana also stopped there and altercation took place between him and the two accused persons, but V. M. Bhai and some other persons intervened; whereupon, Ram Bahadur Rana and Brij Rani as also V. M. Bhai and Smt. Hema turned back to go their house-giving up the idea of going to Shiv temple. But, accused Ghewaria and Badri ran away from the place and immediately thereafter came back running from the opposite side. Ghewaria then gave 2-3 knife blows on the chest of Ram Bahadur Rana and Badri is alleged to have caught hold of Ram Bahadur while the blows were inflicted by Ghewaria. Ram Bahadur fell down and the accused took to their heals. V. M. Bhai and some other persons, who had also collected at the spot, carried the injured Ram Bahadur to the Military Hospital, where Ram Bahadur succumbed to his injuries. It appears that in the meantime a telephonic information had reached the Sub-Inspector Shri Padam Singh of Police Out-post Ratanada to the effect that a military personnel had been stabbed by some-body and had been taken to the Military Hospital in a serious condition. Shri Padam Singh conveyed this message to the Police Station Udaimandir on telephone at 8. 45 p. m. and Shri Avtar Singh recorded this information in the Rojnamcha vide Ex. P. 10. Shri Avtar Singh then proceeded to the Military Hospital, where he recorded the statement of Smt. Brij Rani vide Ex. P. 1 at 9. 25 p. m. and sent that statement to the Police Station, Udaimandir for the case being registered for offence under section 302 read with section 34, IPC. THE dead body of Ram Bahadur Rana was then carried to the M. G. Hospital, Jodhpur, where, the post-mortem examination was carried out by Dr. Shyam Behari Mathur. He found the following injuries on the person of the deceased : " (1) Incised penetrating wound 2 c. m. x 0. 8 cm placed obliquely on chest Rt side and sternum in direction of 2 O'clock position 4 c. m below the Medial End of Rt. Clavicle; (2) Incised penetrating wound l1/2 cm'. x 1/2 c. m. x placed obliquely on chest Rt. side in direction of 2 O'clock position, 1/2 c. m. below the Rt. Aveola; (3) Incised wound 2 cm. x 1/2 cm. x 1/3 cm. placed obliquely on lower lip Rt. side at Vermithori Border; (4) Abrasion 1 cm. x 1/2 cm. on Anterior aspect of middle of left leg. On further exploration of injury No. 1, it was present in 1st Rt. side Intercostal space between central portion of the Ribs. This wound further reached to the Lung (Rt-) which was cut for 1 cm x long x 1/2 cm through and through near the Anterior Border of the Upper Lobe of Rt. Lung This further extended to the Rt. Ventrical near the Avrico Ventricular junction. THE pericardium andpleura Rt. side were also found out in the same plane blood 1003 present in pericardium. On further exploration of the injury No. 2 it was found muscle deep only and not penetrated the Thoracic cavity". According to Dr. Mathur, the cause of death was shock and haemorrhage on account of the injuries on vital organs, i. e. , heart and right lung. THE heart injury and right lung injury individually were sufficient to cause death in the ordinary course of nature. It appears that accused Ghewaria had either surrendered himself or had been brought to the Police Chowki, Ratanada on that very night and Shri Padam Singh produced him before Shri Avtar Singh, Investigating Officer at 11. 35 p. m. when he was arrested vide Ex. P. 11. THE other accused Badri was arrested on 14-7-1981 vide Ex. P. 14. While in custody, Ghewaria gave information regarding knife to Shri Avtar Singh vide Ex. P. 15 and got the same recovered from his house along with blood-stained bush shirt, Baniyan and Pant, vide Ex. P. 6. After the completion of the investigation, challan was put up against both the accused persons and they were committed to the court of the learned Sessions Judge, Jodhpur, were charges under sec 302 and 354, IPC were framed against Ghewari a and charge under sec 302 read with section 34, IPC was framed against Badri. THE accused pleaded not guilty and claimed to be tried. THE prosecution, thereupon, examined 13 witnesses and produced a number of documents. THE accused denied the prosecution story when examined under sec. 313, Cr. P. C. THEy also filed their written statements in which accused Ghewaria stated that he had lost the balance of his bicycle when a car was coming from the opposite side and therefore, his hand happened to touch the wife of the military personnel, who was sitting on the pillion and when he tried to control his bicycle, the military personnel started abusing and gave him a slap, whereupon scuffle took place between them. During the course of scuffle, the military personnel took out a knife from his pant's pocket and tried to stab him. THE accused tried to avert the injury and during the scuffle while they were grappling with each other, the military personnel fell down on the ground and his own knife got inserted into his chest. Badri, who was accompanying him, had run away from the spot. Badri, in his written statement has tried to support this version and the accused examined four witnesses in their defence. On trial, the learned Sessions Judge convicted accused Ghewaria under section 302 and 354, IPC and sentenced him to imprisonment for life and a fine of Rs. 500/- in default one months' further rigorous imprisonment on the first count and one year's rigorous imprisonment and a fine of Rs. 300/- in default two month's further rigorous imprisonment under the second count He convicted accused Badri under section 302 read with section 34, IPC and sentenced him to imprisonment for life and a fine of Rs. 500/-in default one year's rigorous imprisonment. Aggrieved of their conviction and sentences, appellants Ghewaria and Badri have filed this appeal.

(2.) WE have heard learned counsel for the appellants and the learned Public Prosecutor and have gone through the record.

(3.) THE result, therefore, is that Ghewaria's appeals fails and is hereby dismissed, but Babri's appeal is accepted. His conviction under sec. 302 read with sec. 34, IPC and sentence passed thereunder are set aside. He is acquitted of that charge. He is on bail and need not surrender. .