Decided on February 02,1984

HARIYA Appellant


Honble Byas, J. - (1.)This is a jail appeal by accused Hariya against the judgment of the learned Sessions Judge, Jalore dated January 24, 1979 convicting the appellant under section 302, I.P.C. and sentencing him to imprisonment for life with a fine of Rs. 1000/-, in default of the payment of fine to further undergo one years rigorous imprisonment.
(2.)Briefly stated, the prosecution case is that PW 4 Chelaram, PW 10 Ramjilal, deceased victim Prabharam alias Prabhuram and accused Hnriya were travelling in a bus from village jha and got down at bus stand Ankhol. From the bus stand Ankhol, all the four left on foot to go to Bali. In (S.C.) the way, the deceased. victim lagged behind as he was an old man. The remaining three persons stated at a water-hut. There the accused told that since he bad lost a ten-rupee note he was going back in search of it. The other two persons viz. P W. 4 Chelaram and P.W. 10 Rarnjilal proceeded further. PW 4 Chelaram went to Bhoparam PW 2) who is a son of the deceased victim. He informed him that his father had sent information that he was coming and he (son) should go to with water. PW 2 Bhoparam thereupon went to his father with a jar of water. He found him lying dead near a held. Thereupon he went to police Station, Chitalwara district Jalore and verbally lodged report EX p. 4 of the occurrence. The police registered a case under section 302, I.P.C. and took up the investigation. The Investigating Officer prepared the inquest report and sent the victims dead body for post mortem examination. The autopsy was conducted, on 4 3.78 by Dr. Pukhraj Mehta, the then Medical Officer Incharge, Government Dispensary, Jha. He found the following injuries on the victim a dead body: (1) There were six crestic marks of fingers nails on either side of the vind-pepe and (2) One abrasion on theceture of scrotum. Clotted blood was present around the glans of penis and over the abrasion. According to Dr. Matha, the cause of death was throtting causing asphyxia. The report of the postmortem examination issued by him is EX. p. io. The site was inspected and the site plan was prepared. The accused was arrested on 16.5.78. In consequence of the disclosure statements made by him, one blanket, one Seafa, one Dhoti, One Kamiz alleged to be belonging to the deceased victim and a part of shoes belonging to the accused himself were recovered from different place. The clothes of the deceased-victim were put for identification in test and they (S.C.) except the turban were correctly identified by the victim's son Bhoparam (P.W. 2). It is alleged that certain foot-prints were also found at the place were the victim's dead body was found lying. On completion of investigation, the police presented a challan against the accused in the Court of the Munsif and Judicial Magistrate, Sanchore who committed the case for trial to the Court of Sessions. The learned Sessions Judge, Jalore framed a charge under section 302, I P.C. against the accused to which be pleaded not guilty and faced the trial. During trial the prosecution examined 12 witnesses and filled some documents. In defence, the accused adduced no evidence. The defence taken by him was that of total denial. On the conclusion of trial, the learned Session Judge found the charge duly brought borne to the accused. The accused was consequently convicted and sentenced as mentioned at the very out set.
(3.)We have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone through the record of the case.

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