- (1.) THIS appeal is directed against the judgment dated April 11, 1979 passed by the learned Addl. Sessions Judge No. 2, Jodhpur, in Sessions Case Mo. 1/79 by which the appellant was convicted and sentenced u/s 307 IPC to four years' R. I. and a fine of Rs. 500/. In default of payment of fine, he was to undergo further R. I. for three months.
(2.) THE appellant Keshav Kumar was married to P. W, 2 Smt. Sudha, d/o Om Prakash. It appears that the appellant Keshav Kumar resided in a house belonging to P. W. 8 Kushal Raj Bhandari, along with his father, two brothers and wife; as a tenant. THEre were other tenants also in the said house. One Mst. Kaushalya used to come to the house of the appellant. It is alleged that the appellant had developed some relations with Mst. Kaushalya, on account of which his wife Smt. Sudha and other family members were annoyed. The prosecution case is that in the night intervening 3rd of Nov. 1978 when the appellant was sleeping in the room along with his wife Smt. Sudha, after bolting the door from inside, the other family members hear the noise of crying coming out from the room which got them awakened. It is said that the other tenants and the land lord of the house also came there. The prosecution case further is that inspite of knocking the door from outside, it was not opened by the accused. Then one Rameshwar gave kick, on account of which the inner bolt of the doors was broken and the doors of the house were opened. The protection case further is that when some of these persons went inside the room they found that the appellant was sitting on the breast of his wife Smt. Sudha and with a towel he was trying to throttle her after putting the towel around the neck with the help of one 'khurpi'. It is said that the mother of the appellant helped Smt. Sudha to get up and enquired from her about the incident. Thereafter, all other persons went back to their respective houses. Smt. Sudha was sent to the house of P. W. 5 Kailash Nath. who happened to be a common relation of both the parties. The prosecution case further is that a telegram was given to the father of Smt. Sudha but her father could not come as he was appearing in LL. B. Examination at Aligarh. It is also said that the brother of Smt. Sudha, namely, Sunil had come to Jodhpur and the father came subsequently on 2 of November and there after a typed report was made to the Superintendent of Police, Jodhpur by the father of Smt. Sudha which was forwarded to S. H. O. , Sadar kotwali; Jodhpur where the case was registered. The police after investigation, submitted charge sheet u/s 307 IPC subsequently the appellant was tried in the court of learned Addl. Sessions Judge No. 2, Jodhpur, for the offences u/s 307 IPC. During the trial of the case, prosecution examined ten witnesses. P. W. 1 Om Prakash is the father of Smt. Sudha. Smt. Sudha has appeared as P. W. 2. P. W. 3 Jagdish and P. W. 4 Gordhan are the tenents who resided in the same house, while P. W. 5 Kailash Nath is a common relation where Smt. Sudha lived after the aforesaid incident. P. W. 6 Rameshwar is also the tenant being s/o of P. W. 3 Jagdish. P. W. 7 Smt, Sushila Devi is the mother of the appellant. P. W. 8 Kushal Raj Bhandari, who is the landlord in whose house the appellant reside alongwith Smt. Sudha at the time of the incident. P. W. 9 Bhana Ram is the S. H. O. and P. W. 10 is Dr. Narsingh Kothari, who examined the injuries of Smt. Sudha. In defence, five witnesses were examined, which includes D. W. 1 Shiv Kumar who is brother of the appellant, D. W. 2 Thakur Dass who is a friend of the appellant, D. W. Sharvan Kumar who is an employee in the department where the appellant was working and who proved the attendance Register. D. W. 4 is Mst. Kaushalya and D. W. 5 is Vishveshwar Dayal who is the relative of the appellant.
(3.) THE learned trial court, after completion of the trial convicted and sentenced the appellant as stated above. Mr. P. N. Mohnani, learned counsel for the appellant, has argued that the present case is a concocted one as there was apprehension that the appellant was having relations with Mst. Kaushalya, on account of which his wife Smt. Sudha was not happy. He contended that if the incident had taken place in the manner as stated by the prosecution in the night intervening 2nd and 3rd of November 1978, then there was hardly any reason that no attempt was made by any person to lodge the report at police Station. The report came to be lodged after twenty day of the incident and that too when Mst. Kaushalya had disappeared with the appellant, for which a case was registered against him and he was released on bail on November 11, 1978. According to the learned counsel for the appellant there was a number of occasions and that too for so many persons to lodge the report at the police station but no attempt was made by any person including the brother of Smt. Sudha, who had come to Jodhpur and remained for a week but no effort was made even by him to lodge the report. It was further contended that the report Ex. P/l is a typed one and the manner in which it has been written clearly shows that it was made after seeking the advice from some lawyers. It was further contended that the medical evidence does not corroborate the prosecution case. It was also brought to my notice that subsequently a Divorce petition was also filed by Smt. Sudha in the court of District Judge, Hissar, where decree of divorce has been obtained by her. On the contrary the learned, Public Prosecutor, has vehmently supported the findings and the judgment of the learned trial court. According to him, there is hardly any ground to disbelieve the statement of PW7 Smt. Sushila Devi who is real mother of the appallant and it is not expected from the mother to speak against her own son, to seek his conviction and imprisonment. It was also contended that no report was made at the police Station earlier as Smt. Sudha wanted to seek advice from her father before taking criminal proceedings against the appellant. He, therefore contends that no interference is warranted in the present appeal and as the appellant has tried to Strangulate his own wife, no leniency should be shown in the matter of sentences also. ;