STATE OF RAJASTHAN Vs. GOGA & ANR.

JUDGEMENT

(1.) Criminal Appeal No. 391/80 is filed by accused-Roopa challenging his conviction under section 302 of the Penal Code recorded by the learned Sessions Judge, Sirohi in sessions case No. 50/79 on 8.9.1980. Criminal Appeal No. 820/80 is tiled by the State against the same judgment challenging the acquittal of two otheraccused persons who were tried along with Roopa for causing homicidal death amounting to murder of the deceased. In view of the fact that both the appeals arise out of the same sessions trial, they can conveniently be decided by a common order.

(2.) Facts giving rise to the prosecution stated briefly are that on 23.7.1979 at about 10.00 p.m., Roopa, Goga and Natha who arc all brothers assaulted one Naina which assault resulted in Naina being killed. The first information report regarding this incident was lodged on the same day and after investigation, the accused three in number were arrested and tried. The prosecution examined as many as 17 witnesses in support of its case that the accused committed murder of deceased and the several documents executed during the investigation of this crime have been duly proved by several witnesses which documents also were appreciated by the learned Additional Sessions Judge, Sirohi who recorded an order of conviction in relation to Roopa and proceeded to hold that the other two accused persons namely Goga and Natha were not guilty under section 302 and found them guilty under section 323. He has convicted Roopa to suffer imprisonment for life and a tine of Rs. 100.00 or in default to undergo one month's R.I. and has convicted Goga and Natha to suffer one year's rigorous imprisonment under section 323 Penal Code as aforesaid. Roopa has challenged his conviction under section 302. There is no challenge to the conviction of the other accused Goga and Natha under section 323 of the IPC. they were ordered to suffer one year's R.I. It appears that they have already suffered the same. The appeal against the acquittal of these two persons under section 302 is also admitted and is being considered jointly with the appeal against conviction.

(3.) With the assistance of the learned counsel and also the learned Public Prosecutor, we have re-appreciated the oral evidence and we have scrutinised the documentary evidence on record and on a total re-appreciation of both oral and documentary evidence, we will consider the rival contentions raised on behalf of the parties. After taking us through the evidence extensively, it was argued by Shri Sandcep Mehta for accused-Roopa that the prosecution has not come up with the entire truthful story and that there is no adequate evidence on the basis of which conviction of Roopa can be maintained. It was argued that the prosecution is guilty of shifting absence of offence, the eye-witnesses account is not proper, the deceased has met his death at the hands of someone else as a consequence of a previous enmity and the case is being highlighted on the accused person. Countering this submission, it was canvassed by the learned Public Prosecutor that the eye-witnesses were of independent nature. There is nothing in their cross-examination to require that they are disbelieved and so. the conviction as recorded by the learned Judge is proper. We have appreciated the contentions in light of the re-appreciation that we have done.