MANGALIA Vs. STATE OF M P

JUDGEMENT

(1.) THIS order shall dispose the aforesaid two appeals, which arise out of Sessions Trial No. 225 of 1990. Learned Sessions Judge, Guna vide judgment dated 6-12-1991 convicted appellant under Section 302, Indian Penal Code, and sentenced him to rigorous imprisonment for life. However, learned Trial Court has acquitted the accused of the charge under Section 376, Indian Penal Code. Appellant-Mangalia has in his appeal challenged his conviction under Section 302, Indian Penal Code, whereas the State on its part in appeal has challenged accused Mangalia's acquittal for charge under Section 376, Indian Penal Code.

(2.) THE accused/appellant-Mangalia was tried on two charges-- firstly, for offence under Section 302, Indian Penal Code, for having committed murder of Prabhulal son of Tulsiram, resident of Semra Ka Har, in the intervening night of 1st and 2nd July, 1990 in the house of the deceased; and secondly, at about same time, date and place he had committed sexual intercourse with Khuslobai, w/o deceased Prabhulal against her wishes and without her consent and committed offence under Section 376, Indian Penal Code.

(3.) THE prosecution story is somewhat peculiar. Appellant-Mangalia was an outsider and unknown to the victims. Deceased Prabhulal, with his wife and son Bhagwansingh and other minor son and daughter, was living in Semra Har in a house which he had constructed over his own field Survey No. 146. The place was called "ballapur Ka Bagicha". At a distance of one furlong from his field P. W. 3-Surajbai, her husband Mawasiya (P. W. 16), resided. It is stated that on 1-7-1990 in the afternoon accused Mangalia passed by the side of the house of P. W 3-Surajbai and just casually told them that he was moving here and there in search of his cattle which are missing. He wanted to know if Surajbai and her husband have seen his cattle who are 8 to 10 in number. Accused introduced himself to Surajbai and her husband and told that he was a resident of Village Atari Khejra. From the place of P. W. 3-Surajbai accused Mangalia went to the house of deceased Prabhulal and introduced himself in the same way as he had done earlier to Surajbai. He also enquired from deceased Prabhulal if the latter had seen his cattle numbering 10-12. Deceased Prabhulal told him that he had not seen any cattle. The accused expressed that he was hungry and demanded food and thereupon he was given food by P. W. 2-Khuslobai and after having his meals, the accused left towards Village Magrana. The two front teeth of the accused were missing. In the evening, at about 6 or 7 accused returned to the house of deceased and sat near the deceased. In the evening Khuslobai sent meals to her husband who was sitting outside. Deceased Prabhulal showing human courtsey enquired from the accused if he would also share meals and when the latter expressed his desire to have meals, he too was supplied meals. The accused expressed his desire to Prabhulal to have night-stay in his house because it had turned dark and was also raining. Again as a gesture of human courtesy deceased Prabhulal offered his cot to accused and allowed him to sleep in "chhapari" (Barandah) and the deceased himself slept on ground on a Chatai. His wife Khuslobai, with his sons Bhagwansingh, Brijesh and one other in the lap slept inside. However, while being to sleep she had closed the doors without chaining them. It is at about 9. 00 p. m. when her husband had already gone asleep, she inside her house was feeding her child in the lap in the light of Chimani. It is at this juncture that accused Mangalia entered into the house and came to her and lifted an axe from the room and very swiftly grabbed Khuslobai, throttled her neck and gave few fists on her chest and did not allow her even to cry or raise alarm and thereafter against her wishes, forcibly committed sexual intercourse with her. He was going just to gave an axe blow to Khuslobai when the deceased in the Chhapari had an attack of cough [kklh- Probably apprehending some risk from Prabhulal, the accused rushed towards him and started attacking him with axe. Lady Khuslobai found this opportunity to slip away from the house and she rushed to the house of Ganpat where she met Nandram (P. W. 9), who happens to be the son of Ganpat. She narrated the incident to Nandram and in turn Nandram went to Shankarlal (P. W. 10), Kashiram (P. W. 1), Rambharosa (P. W 11) and Ghasiram (P. W. 13) and told them about the incident that some unknown person has come to the house of Prabhulal and has attacked him. Learning about this, these people rushed to the house of Prabhulal and found that Prabhulal had injuries on his head, cheek and other parts of the body and he was bleeding from the injuries and was wriggling from pain and died very soon thereafter. In the night itself Nandram, Shankarlal etc. went to Chowkidar of Village Ballapur but Chowkidar was out of station, therefore, they took his son with them and informed Khemchand (P. W. 12), the maternal uncle of Prabhulal, about the incident.