BABUDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a jail appeal against the judgment of the learned Sessions Judge, Udaipur dated January 31, 1987, whereby the learned Sessions Judge has held the accused appellant Babuda guilty under section 397, 380 and 451, IPC and sentenced him to seven year's rigorous imprisonment on the first count, two year's rigorous imprisonment with a fine of Rs. 50/- on the second count and one year's rigorous imprisonment together with a fine of Rs. 50/- on the third count.

(2.) THE facts giving rise to this appeal, briefly stated, are that in the night intervening between 13th and 14th of September, 1985, complainant Galla and his wife Smt. Fagnu were sleeping in one kothe of their house and his mother was sleeping in the outer portion of the house, locally called Patsal (Fatal ). It is alleged that three persons, armed with lathis, entered the house of Galla gave beating to Smt. Banni mother of Galla and snatched her silver Hansali and Zoolki. On hearing her cries, her son Galla came there. He too was beaten, Galla's wife Smt. Fagnu did not intervene and so she did not receive any injury. It is alleged that Smt. Banni identified one of the accused, namely, the appellant Babuda in the torch light which was flashed by the accused persons on her face. It is further alleged that Smt. Banni became unconscious as soon as she received the injury on her head and she regained consciousness only in the hospital. A report of the incident was lodged at Police Station, Bakariya, which has been marked Ex. P 7 and on the basis of which the First Information Report was drawn, which has been marked Ex. P 8. Medical examination of the injuries sustained by Smt. Banni and Galla were got conducted. Injury report of Smt. Banni has been marked Ex. P 15, whereas the injury report of Galla has been marked as Ex. P 16. THE X-ray plates have been marked Ex. P 1, Ex. P 2, Ex. P 3 and Ex. P 5. Smt. Banni's X-ray report has been marked Ex. P 5, which shows a fracture of left metacarpal bones and fractures of frontal and parietal bones Galla's skiagram showed a fracture of the third metacarpal bone. X-ray report of Galla's injury has been marked Ex. P 5. After usual investigation, a challan was filed against accused Babuda, Dewa, Mawa, Hera and Mana. How ever, the learned trial Judge discharged the accused Dewa, Mawa and Hera, but he framed charge a gainst accused Mana and Babuda, to which they pleaded not guilty and claimed to be tried. As many as twelve witnesses were examined by the prosecution in support of its case. THE statements of the accused persons were recorded under section 313, Cr. P. C. THEy led no defence. After hearing the parties, the learned Sessions Judge acquitted accused Mana, but convicted accused Babuda under the aforesaid sections and hence this appeal through jail.

(3.) IT is alleged that certain articles were got recovered on his informal on and at his instance. PW 4 Smt. Banni and PW 5 Smt. Fagnu have admitted that the police people informed them that their stolen articles have been recovered and they might come and identify the same in the Thana. They further stated that they went to the Thana and saw these articles there and later they identified these articles in the identification parade which clearly proves that the recovered articles were not led at the instance as of their recovery. This admission of both these witnesses makes the testimony regarding the recovery of the stolen articles valueless. These are the facts which could be used by the prosecution to connect the accused with the guilt and unfortunately the prosecution has not been able to establish both these facts. I, therefore, feel that the learned lower court erred in holding accused Babuda guilty under sections 397, 380 and 451, IPC. Actually the accused deserves benefit of doubt and consequently acquittal.