KANHAIYA LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgement dated March 26, 1987, passed by the Sessions Judge, Udaipur, by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offences under Sections 302 and 394 I. P. C.

(2.) THE appellant was tried by the learned Sessions Judge, Udaipur, for the offences under sections 302 and 394 I. P. C. THE case of the prosecution, as unfolded in the First Information Report, which was lodged at Police Station, Patasiya on April 23, 1980, by Poona, is to the effect that Smt. Moti the wife of the informant Poona, a day before yesterday, showed her intention to go to her parental house situated in village Lakhawas, upon which the informant asked her to go by the first bus. In the night, at about 10. 00/11. 00 p. m. , he went to his field in order to keep a watch on the crop and when he came back to the house yesterday at about 10. 00 a. m. , his wife was not found at the house. He thought that she might have gone to her parental house. Today, in the evening, some herdmen informed him that in the jungle of Nabhi Dharma Mahadeo, a dead body, of a woman is lying there, whose legs are cut and one bag is lying near the dead body. He, alongwith the other villagers, went there and saw the dead body of the lady and on seeing the dead body, it was revealed that the deceased was his wife Smt. Moti. It was further stated that before her death, she was wearing one silver Kadiya (thick silver bangle) in each of her legs, which were found missing. THE name of the accused was not given in this F. I. R. , which was, later on, named during the investigation as the appellant Kanhaiya Lal, and the police, after necessary investigation, presented the challan against the accused-appellant. THE accused was tried by the learned Sessions Judge, Udaipur. THE prosecution, in support of its case, examined thirteen witnesses. THE accused did not produce any evidence. THE learned Sessions Judge, after trial, convicted the accused under sections 302 and 394 I. P. C. and sentenced him to undergo imprisonment for life and a fine of Rs. 50/- and in default of payment of fine further to undergo one month's rigorous imprisonment, under Section 302 I. P. C. and was sentenced to undergo seven years' rigorous imprisonment and a fine of Rs. 50/- and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under section 394 I. P. C. It is against these convictions and sentences, passed by the learned Sessions Judge, Udaipur, that the appellant has preferred this appeal.

(3.) PW 5 Poona, the husband of the deceased Smt. Moti,has stated that at about 1. 00 1 1/4 years before, in the night at about 8. 00 p. m. , he and his wife Smt. Moti were in the house and taking their meals. At that time, accused Kanhaiya Lal came there and he and the accused smoke together and as he had to go to his field, he went to the field and the accused remained sitting in the house and the accused and Smt. Moti were talking. Next day, he returned from the field at about 8. 00/9. 00 a. m. and at that time, the accused was sitting in a hotel, the door of his house was closed, but it was not locked. His wife Smt. Moti was not found inside the house and when she was not found there, he thought that she might have gone to her parents' house as there was a talk to this effect a day before. About two days after, some herdmen informed him that a dead body of the lady was lying in the Nallah in the jungle of Nabhi Dharam Mahadeo and hearing so, he alongwith 4-5 persons, went there, saw the dead body and found that the neck of the deceased was cut and both the legs were, also, found cut and one bag was lying near the dead body, which belongs to his wife Smt: Moti, in which there were some clothes of his wife. His wife used to wear silver Kadiyans in the legs, which were, also, taken by some one by cutting her legs. He, also, identified these articles before the Tehsildar, where the identification was conducted and, also, in the Court. This witness, in the F. I. R. has stated that the accused was sitting at his residence when he had left in the night for his field. He has only stated in the F. I. R. that he had allowed his wife to go to her parent's house in the morning and he left the house at about 10. 00/11. 00 p. m. , while in his statement before the court, he has given the time for going to his field at about 8. 00/9. 00 p. m. As the story about the last seen by, this witness does not find place in the F. I. R. , which was the first version given by the witnesses, it appears that this evidence of last seen appears to be an after-thought and has been created in order to implicate the accused with the crime, otherwise, if the accused would have been there in his house when he left the house then in the F. I. R. , his name should have been found mention. Even in the F. I. R. the name of the accused has not been given. All the witnesses have stated that the accused was seen by them only upto 9. 00/10. 00 p. m. and this witness left the house at about 10. 00/-11. 00 p. m. and this story of last seen of the accused at the residence of Poona does not find mention in the F. I. R. , lodged by Poona and as such the evidence of these witnesses regarding the last seen of the accused with the deceased Smt. Moti cannot be relied upon.