ACHALIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE facts of this case He in a very narrow compass and the question urged before us is also very short and, therefore, the relevant facts are being stated in short. THE accused Achalia is the real elder brother of PW 11 Jaisa Ram. He was a widower and it appears that he was making overtures towards Jaisa Ram's wife or had illicit relations with her. THErefore, Jaisa Ram took away his wife from their village Bhavrani to her father-in-law's place Gol. After staying at Gol for sometime, Jaisa Ram took his wife to village Bedia where his sister lived. At Bedia again, accused Achalia reached and started teasing Jaisa Ram's wife Smt. Hanja. Being annoyed of this, Jaisa Ram left with his wife for village Gol from Bedia, then he had reached about 6 kms. from Bedia on way to Gol, the accused Achalia over took them. He was armed with an axe. At first, Achalia asked Jaisa Ram to come back to their village Bhavrani along with his wife Smt. Hanja but Jaisa Ram declined and thereupon, the accused Achalia blew the axe towards Jaisa Ram but Jaisa Ram averted the blow on the lathi, which he was carrying. Jaisa Ram's wife Smt. Hanja tried to intervene and Achalia gave an axe blow on her neck. Smt. Hanja fell down and did. Jaisa Ram then went to Sarpanch of Bhavrani and informed him of this incident. THE Sarpanch asked him to report the matter to the police whereupon Jaisa Ram got a report Ex. P14 Written and presented the same at police station, Noura. THE police registered a case under secs. 302 and 307 I. P. C. and started investigations. During the course of the investigations, Jaisa Ram was got medically examined and the doctor found the following injuries on his person:- "1. Abrasion of 0. 5 cm x 0. 1 cm. on left palm of the hand 3 cm. proximal to base of of little finger.

(2.) ABRASION of 0. 5 cm. x 0. 1 cm, on distal phalange of the little finger and middle phalanga of the ring finger dorsfally of the right band. " Both injuries were simple by blunt weapon. The post-mortem examination of Smt. Hanja was also carried out and Dr. S. L. Chopra PW 10 found the following injuries on her person:- "a obliquely incised wound present at the level of 5th cervical vertebrae of size 10 cm. x 2. 5 cm. x 6. 0 cm at the right side of the neck. Extending antero-posterically, anterior and lies near the sterno-matoid muscles covered with blood clot and neighbouring skin been stained blood clot. Edges are deep stained, Maggots are present in the wound, culling the plasma and the muscles of the right side of the neck,, the external carotid artery was also divided the 5th vertebrae was grazed. " He also found that the external carotid artery on the right side was divided. He was of the opinion that the death was due to shock due to external haemorrhage from the wound of the neck. Before the court, he stated that the injury was sufficient in the ordinary course of nature to cause death. The lathi on which Jaisa Ram averted the blow of Achalia, was also produced before the police along with the F. I. R. and in the recovery memo Ex. P. 5, the L. C. Shri Jet Mal Singh noted that there was a mark of the implact of a sharp edged weapon on the 5th digit of the lathi from the bottom. The axe could not be recovered as the accused was said to be absconding after the incident and ultimately, he was arrested on 25. 4. 82 vide Ex, P 11. After the completion of the investigation, the accused was charge-sheeted and he was committed to the Court of the learned Sessions Judge, Jalore. Charges under sections 302 and 307 were framed against him. He pleaded not guilty. The prosecution thereupon examined 16 witnesses and produced 19 documents. The accused when examined u/s 313 Cr. P. C. denied the prosecution story. He, however, did not reduce any evidence in defence. The learned Sessions Judge convicted him u/s 302 I. P. C. and sentenced him to imprisonment for life and a fine of Rs. 200/-, in default to three month's further rigorous imprisonment by judgment dated 29. 6. 83. It may be noted here that he failed to record any finding of conviction or acquittal for the charge u/s 307 I. P. C. It appears further that while he was framing the points for consideration, he concentrated only on the question whether the accused Achalia had committed the murder of Smt. Hanja and the other question whether he had made an attempt on the life of Jasia escaped his notice altogether. This is also important to note that when no finding has been recorded regarding the charges u/s 307 I. P. C. , which had been framed against the accused, he will be deemed to have been acquitted of that charge and the State has not filed any appeal against that implied acquittal. 2. The trial court appears to have relied upon the evidence of Jaisa Ram PW 11, the only eye witness in the case and the fact of the abseonsion of the accused, which was based on the evidence of PW 13 Sanga Singh, PW 14 Hindu Singh and PW 15 Shri. Mod. Singh Rest of the witnesses, which were produced to afford circumstantial evidence have turned hostile.