BAKSHA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant-Baksha confined in District Jail, Tonk, has come up in this appeal against his conviction under Sec. 304, Part 1, IPC, and sentence for nine years rigorous imprisonment with a fine of Rs. 500/- (in default, further - month's R. I.) imposed by the learned Sessions Judge, Tonk, vide his judgment dated March 17, 1989.

(2.) TO begin with, stating in a little compass, prosecution's case is based on an oral report lodged by one Laxminarain (PW 4), at police station Nagar Fort (District TOnk) on 24. 11. 86 at about 5. 30. The version given out in oral report is that at about 4 p. m. when the informant was reaping bis Great millet crop in his field and Moti & Sheoji were also reaping Great millet crop in nearby fields whilst his elder brother Bhura (deceased) was grazing his cows nearby, at that time, a flock of sheep belonging, to gipsies of the Marwar (a place from western Rajasthan State) being wandered entered the fields and started feeding on their Great millet crops thereupon his brother Bhura turned the sheeps out of the field to which one Marwari protested thereby war of words in between them and a Marwari apart from infliction of a lathi blow by Marwari on the temporal region of Bhura who fell down and from whose mouth the blood started oozed out, as a result of which, Bhura died. It was also alleged that Marwari was caught hold of by these three persons, Laxminarain (informant), Moti & Sheoji, and on being asked, that Marwari gave out his names as Baksha; and thus, taking Baksha they reached the police station and the deadbody of Bhura has been taken to the village from the field. Upon the aforesaid report,a case for the offence under Section 302, IPC was registered. During investigation, the appellant who was produced at the police station while lodging the oral repot, was arrested, lathi was recovered vide memo Ex. P. 7 and Ex. P. 8; the Investigating Officer reached the spot on 25-11-86, prepared the site plan (Ex. P. 2) and the inquest report (Ex. P.) and then got the post mortem report (Ex. P. 4) from the doctor who conducted autopsy on the person of Bhura (deceased ). After completion of investigation, challan was filed in the Court against the appellant for the offence under Section 302, IPC and he was committed to the Court of Session for trial. The learned Session Judge framed the charge under Section 302 IPC against the appellant who denied, the charge and claimed to be tried. In all nine witnesses have been examined by the prosecution. The accused-appellant in his statement denied the allegation levelled against him by the prosecution witnesses. but did not produce any witness in defence. Learned trial Court after hearing the parties, passed the impugned judgment. Hence this appeal

(3.) FROM what has come out from the statement of the witness (PW 4), (put supra), ft is thus clear that the witness was accompanied by Sheoraj (PW 1) s/o the deceased and Moti (PW 5) and, therefore his evidence was required to be corroborated by Sheoraj (PW 1) arid Moti (PW 5) but unfortunately, his statement (PW 4's) has neither been corroborated by Sheoraj (PW l)nor by Moti (PW 5) who has been turned hostile. Sheoraj (PW 1) is son of the deceased and he initially had gone to say before the trial Court that no injury was inflicted on the person of the deceased in his presence and, therefore he was declared hostile. However, in cross-examination he admitted infliction of lathi blow by one Marwari on the person of his father and not by the appellant and moreso, in cross-examination done by the learned counsel for the accused, the witness (PWl) admitted that no damage was done in their field inasmuch as the sheeps never entered their field whilst those were passing through a public way and at that time his father intercepted and asked Marwari not to pass through the public way thereby the occurrence took place.