N. L. Tlbrewal, J. - (1.) THE appellant was convicted u/s 459 IPC and sentenced to three years R. I. and a fine of Rs. 50/-by Shri D. C. Hajela, learned Sessions Judge, Dungarpur, vide his judgment dated September 28, 1979 Aggrieved against his conviction and sentences, the appellant has preferred this appeal.
(2.) THE facts of the case are that a report was lodged at Police Station Dungarpur at 5. 30 p. m. on 17. 5. 79. This report was made by Smt. Durga, P. W. 1. In the said report it was alleged by her that she was sleeping at the house of her 'jethani' (wife of husband's elder brother), while she was sleeping on a cot and her 'jeth', his wife Smt. Tulsi and Soma's son Gautam were also sleeping at the same place. It was further stated in the report that at 1. 00 A. M. in the night of 16. 5. 79, the appellant Thanwara came and inflicted a lathi blow on her face, on account of which one teeth was broken. It was also stated in the report that on her cry, Soma, Smt. Tulsi and Gautam woke up and the accused appellant ran away. In the report it was also admitted that there was an enmity between the appellant and her Jeth Soma. It is note worthy that the aforesaid report was made after getting the injury report by the informant by privately getting examined from doctor. It is further note worthy that the report was made at 5. 30 P. M. on the next day though the incident has taken place in the previous night. However, the police registered the case u/ss. 452 and 325 IPC. After usual investigation, police submitted chargesheet against the appellant and he was tried in the court of learned Sessions Judge, Dungarpur u/s 459 IPC During the trial, the prosecution examined six witnesses. P. W. 1 Smt. Durga has given the same story in her examination-in-chief. In cross-examination, she admitted that it was mid-night. She also admitted that she, her 'jethani' Smt. Tulsi and her Jeth Soma had taken soil from a field for preparing 'kilu'. She also admitted that her teeth had fallen on the ground and there was no blood on her cloth. She also stated that she was neither in the hospital nor she had gone to the doctor subsequently. P. W. 2 is Soma. He has tried to state that on hearing cry of P. W. 1 Durga Devi, he got up and he caught hold of the lathi of the accused-appellant but he ran away leaving the lathi there. He admitted that he was having a dispute with the appellant about taking soil. He also admitted that when the betrothel of Durga had taken place, his brother Khathu and Manna had gone to see her. P. W. 3 Smt. Tulsi is the wife of Soma and she also admitted about the quarrel with the accused-appellant. P. W. 4 is a formal witness. P. W. 5 Bhagwan had been declared hostile and P. W. 6 Jaggnanath is the Head Constable, who was Incharge of Police Chouki, Ankari and who had investigated the case. In defence Manna has been examined and he stated on oath that he is the nephew of Smt. Durga and at the time of her betrothel he had gone to see her. He further testified on oath that at that time he found that one teeth of Smt. Durga had broken.
(3.) D. W. 2 is Heera. He has given the evidence about the enmity between the parties. The learned trial court, without making any critical analysis of the evidence, convicted the accused appellant as stated above. He observed that FIR was promptly lodged and that Mst. Durga had identified the appellant. I have heard the learned counsel for the appellant. Mr. Bishnoi has argued that the entire story about the incident is improbable and unnatural. According to him a false case has been foisted against the appellant on account of enmity and it was highly improbable that the accused appellant who was aged 55 years old at the time of the incident would have gone in the house of Soma for the purposes of beating Smt. Durga. He further argued that it was highly improbable that the accused appellant could have escaped from the place of incident even though all the family members, including Soma had woke up, inspite of the fact that the distance between Soma and the appellant was hardly of 3-4 ft. and Soma was a young man at the time of the incident. He also argued that neither the doctor has been examined nor the teeth has been seized by the police at the time of investigation. He further argued that the Investigating Officer did not find any blood at the place of the occurrence and the clothes of Smt. Durga were also not smeared with blood. According to him, if the teeth had been broken in this manner then sufficient blood must have come out from the mouth of Smt. Durga. He further argued that D. W. 1 Manna is a close relation of Smt. Durga and Soma and it has been admitted by Soma that Manna had gone to see Smt. Durga at the time of her betrothel ('sagai') and this witness has stated on oath that the teeth of Smt. Durga was already broken at that time. On the other hand, the learned Public Prosecutor has supported the judgment of the trial court. ;