N.N.MATHUR,J. - (1.) THIS is an appeal against the judgment dated 26.8.1981 passed by Sessions Judge, Balotra convicting the appellants Kishana and Aab Singh for offence u/s. 302 I.P.C. and sentencing each of them to imprisonment for life and pay a fine of Rs. 500/ - and in default to further undergo six months rigorous imprisonment. The appellants have also been convicted for offence u/s. 460 I.P.C. and sentenced to 10 years rigorous imprisonment and to pay a fine of Rs. 500/ -, indefault to further undergo six months rigorous imprisonment.
(2.) THE prosecution case in brief is that PW/34 Hanuman lodged a F.I.R. at police station Dhorimana on 30.6.1980 at about 9 A.M. stating interalia that in the early morning PW/5 Peera informed him that his son PW/8 Isra who used to graze catties was sleeping with deceased Mst. Dapu in the 'Dhani'. As per the saying of Isgra, in the night two persons entered in the 'Dhani' of Dapu. They killed Mst. Dapu by strangulation. Thereafter, they took away the ornaments and cash. They slapped him and put a cloth in his mouth. PW/5 Peera also stated that when Ishra approached to him he was weeping. Peera thereafter went to PW/1 Durgaram, PW/2 Dana Ram and PW/18 Shankar Puri and apprised them of the incident. All of them went to 'Dhani' of Mst. Dapu. They found her dead. On this information police registered a case for offence u/s 302 and proceeded with the investigation. Police prepared the inquest and the body of, Mst. Dapu was sent for postmortem. The accused persons were arrested and recovery of ornaments were made in pursuance of the information given by them. After usual investigation, police laid a charge sheet against the two accused persons for offence under Sections 302, 458 and 460 I.P.C. The accused denied the charge and claimed trial. The prosecution in support examined 39 witnesses. In statement u/s 313 of Code of Criminal Procedure, the accused persons stated that the evidence produced against them by the prosecution is false. The accused persons examined DW/1 Chiman Das and DW/2 Pabu Singh. It was stated by them that at the time of incident accused Kishana was in village Pungal of Distt. Bikaner whereas accused Aab Singh was in village pita of District Jaisalmer. The learned trial court found the circumstantial evidence sufficient to hold the petitioner guilty of the murder of Mst. Dapu. Accordingly, both the accused persons have been convicted and sentenced as mentioned above.
(3.) PW /8 Ishra has stated that while he was sleeping with deceased Dapu in the 'Dhani', two persons entered and they killed Mst. Dapu by strangulation. PW/1 Durga Ram, PW/2 Dana Ram, PW/5 Peera and PW/18 Shankar Puri have stated that when they reached on the spot, they found Mst. Dapu dead. They opined that she was killed by strangulation. PW/35 Dr. Rajendra Mehta has stated that on 30.6.1980, he was posted as medical officer, Dhorimana. He conducted the postmortem of the body of the deceased Mst. Dapu vide Ex. P. 28. He found following injuries on the person: (1) 5 Bruises on the right side of neck of the fingers having a direction of downwards and outwards. The size of bruises are (i) 4.5 x 2.0 cms (ii) 5.0 x 1.5 cms (iii) 4.5 x 1.5 cms (iv) 3.0 x 1.0 cms (v) 2.0 x 1.0 cms. from upwards to downwards. There is crescentic abrasions on outwards and downwards direction to the bruises Nos. 2, 3, 4 of the 1.5 -1.0 cms. (2) 4 Bruises on the left side of neck of the fingers and having direction of downwards, and outwards. The size of bruises from upwards to downwards (i) 5.0 x 1.5 (ii) 4.0 x 1.5 (iii) 4.0 x 1.0 (iv) 2.5 x 1.0 cms. There are crescentic abrasions to downwards direction to the bruises of size 1.5 cm to 1.0 cms. Abrasions: On the right forearm lower 2/3 of right forearm 7 in number and size 3.0 x 1.5 cms on the Lt. lower 2/3 of Lt. forearm. Abrasions 4 in nose and size of 2.5 x 1.5 to 1.5 x 1.0 cms. ;