- (1.) This appeal has been preferred by the accused appellant Bapu s/o Nathu r/o Badodiya , against the judgment of conviction and order of sentence dated 16 01.2008 passed by the learned Addl. District and Sessions Judge ( Fast Track) , Banswara in Sessions case No.77/2007 who convicted the accused appellant under section 302 IPC to life imprisonment and a fine of Rs.2,000/- in default of payment of fine to further undergo one month's rigorous imprisonment.
(2.) The nub of the prosecution story is that on 08.09 06 05.00 PM complainant Wittly w/o Nathu presented written complaint Ex.P/1 in police station Kalinjra that in the morning of that day at 08.00 AM , she went to the field of Dungar Patel to work and her husband Nathu , aged 60 years went to bring the grass from the Kunwala field. In the morning at about 11.00 AM when she came back to her house she searched her husband but she could not find him. Then she called Wittla s/o Bhura and Lalji s/o Heera and informed them about this fact . Then she along with the above two persons, went in search of her husband. They saw the dead body of her husband with the injuries on the mouth and neck and blood was oozing from his ears. She along with her husband, used to reside in one house and the son of the earlier wife of her husband Ranchhor and Bapu resides in separate house. The younger son Bapu used to threaten them, therefore, she had suspicion of Bapu to cause the death of her husband. On the basis of this report Ex.P/1 , a criminal case No.278/06 was registered under section 302 of the Indian Penal Code and the investigation commenced. During the course of investigation, memo of 'Panchnama' of dead body was prepared , site inspection was conducted by the Investigating Officer and autopsy was conducted on the body of deceased . The accused appellant Bapu was arrested by the investigating officer and after the investigation, charge sheet under section 302 of the Indian Penal Code was filed in the court of Judicial Magistrate Bagidora from where the case was committed to the Sessions Judge, Banswara and ultimately it was transferred for trial to Addl.District & Sessions Judge ( Fast Track), Banswara . Accused was charged for the offence under section 302 of the Indian Penal Code and the prosecution examined 12 witnesses namely , PW/1, Smt.Wittly, PW/2 Lalji, PW/3 Wittla, PW/4 Ranchhoor, PW/5 Vipin, PW/6 Smt.Manju, PW/7 Shanker , PW/8 Ranchhor s/o Nathu, PW/9 Dr.Shyam Lal, PW/10 Babu Lal, PW/11 Smt.Kuri and PW/12 Ram Lal. Incriminating evidence available against the accused appellant was put for explanation under section 313 Cr.P.C. and the accused examined no evidence in defence. After the conclusion of trial, learned trial Judge found guilty the accused appellant Bapu for the commission of offence under section 302 IPC and sentenced him as above. PW/1 Smt.Wittly is the wife of deceased Nathu . While corroborating the facts of the first information report, she deposed that in the morning when she went out, her husband was there and when she returned back then her husband was not found there. Then she called Wittla and Lalj and all the three persons searched her husband. He was found in the corn field. The blood was oozing as there were some external injuries on the dead body of the deceased Nathu. She further deposed that she reported the matter to the police through Ex.P/1 FIR and also deposed that Bapu used to quarrel with her husband for the reason that accused appellant used to tell his father for construction of a house. PW/2 Lalji and PW/3 Wittla corroborated the evidence of PW/1 Smt.Wittly and both these witnesses corroborated the fact of searching of the dead body of deceased Nathu and they also deposed about this fact that accused appellant Bapu used to insist his father Nathu for construction of house. PW/4 Ranchhor is the witness of preparation of panchnama Ex.P/3 and site preparation memo Ex.P/5 .PW/6 Smt.Manju deposed that on the date of the incident in the morning at 08.00 AM she went for work at the corn field and while she returned back at 10 or 10.30 AM accused appellant Bapu caught hold of the neck of her father- in -law and inflicted injuries with his fist. She went to call her mother-inlaw . PW/7 Shanker is the witness of the earlier quarrel which took place between the deceased Nathu and his son Bapu .PW/8 Ranchhor also deposed that he has suspicion about causing the death of his father by Bapu because of the earlier incident of quarrel which took place in between Bapu and deceased Nathu. PW/9 Dr. Shyam Lal deposed that on 08.09.06 as the medical officer of primary health centre Kalinjra he conducted the autopsy of Nathu s/o Sameng aged 55 years and he observed the following 8 external injuries on the body of deceased Nathu : He further deposed about the preparation of post mortem report Ex.P/11. PW/10 Babulal Meena deposed about some part of the investigation which was conducted by him as the investigating officer. PW/11 Smt.Kuri while corroborating the evidence of other witnesses, deposed about the earlier quarrel which took place between Bapu and the deceased . PW/12 Ram Lal is the investigating officer who registered the case on presenting the first information report and also deposed about the other investigation.
(3.) The main contention of the learned counsel for the appellant is that Ex.P/1 the first information report does not bear the name of the eye witness PW/6 Manju and, therefore, her statement as eye witness, cannot be relied upon. As per the contention of the learned counsel for the accused appellant , no other evidence is available against the accused appellant except the evidence of PW/6 Manju. The incident took place on 08.09.06 and the witness Smt. Manju was examined twice by the police during the course of investigation. The statement of PW/6 Manju, who is the daughter of deceased Nathu, cannot be relied upon also on the ground that just after the incident when she saw the accused appellant inflicting injuries on the body of deceased Nathu, she did not inform this thing to any person and neither she went to neighbours nor to any one to inform about the incident and this behaviour of PW/6 Manju is not in accordance with the normal human behaviour and conduct. Had she been there she should have run to rescue the deceased and instead of opting this thing, she did not inform any person about this incident.;