- (1.) THE appellant Kalu was prosecuted for the offences u/s 307 IPC in the court of Addl. Sessions Judge, Udaipur. THE charge against the appellant was that on 11. 8. 79 at 8. 00 of 8. 30 P. M. he threw accused Baga in front of a running train, near the temple of 'mathaji' at village Padla in order to commit his murder and in the said process the injured collided with the train, sustaining injuries on various parts of his body including a crush injury on the left foot. THE learned Addl. Sessions Judge, after completion of the trial, convicted and sentenced the appellant u/s 307 IPC to 4 years' R. I. and a fine of Rs. 500/ -. In default of payment of fine, the appellant was further awarded five months' S. I.
(2.) THE report of the incident was lodged by the injured Baga at police Station, Jhawarmies, Distt. Udaipur, next day at 8. 45 A. M. THE prosecution story, as given out in the said report is that on day of incident at 2. 00 P. M. he went to the house of Dhola Meena to borrow money from him. At about 6. 00 p. m. the appellant came there and he raised some dispute about a piece of land. It was further alleged in the report that the informant Baga was made to sit in the house of Dhola Meena by his wife and appellant went away from there. As per the report, at 7. 00 p. m. after taking the meals the informant was going to his house, and while passing through the river area, then at about 8. 30 p. m. the appellant came running from behind. When he reached near the temple of 'mathaji' the appellant gave a threat to the informant that he will not be left and when informant climbed over the railway tracks then the appellant gave a fist blow and scuffled with him. It is said that the passanger train which was going for Ahmedabad came and the appellant, in-order to kill the informant, threw him on the railway tracks and when the informant tried to save himself then he collided with the boggi and sustained injuries on the various parts of his body. It was further alleged that in the morning his brother Roopa was passing from nearby then he was called by the informant. On the aforesaid report the police registered the case u/s 307 IPC. After usual investigation, the police submitted charge-sheet against appellant u/s 307 IPC and the appellant was put to trial for the said offence in the court of learned Addl. Sessions Judge, Udaipur. During the trial, the prosecution examined as many as 5 witnesses, i. e. Dr. J. S. Matta who was Medical Jurist, General Hospital, Udaipur and examined the injury of Baga, Injured, P. W. 2 is injured Baga, P. W. 3 is Roopa, who is brother of injured Baga, P. W. 4 is Kala and P. W. 5 is the Investigating Officer Shri Umar Daraj Khan. In defence, the appellant examined two witnesses' namely. D. W. 1 Punja are Bhanera, P. W. 2, After completion of the trial, the learned Addl. Sessions Judge convicted and sentence the appellant as aforesaid. Feeling aggrieved against the aforesaid conviction and sentences passed by the learned trial eourt,the appellant has preferred this appeal before this Court. The learned counsel for the appellant has vehemently argued that the prosecution has visually failed to prove the guilt against the appellant and the statement of Baga alone is not of worth so as to record the conviction against the appellant. According to him the story which has been given by Baga in the trial court has been substantially changed from his earlier version and the entire story appear to be improbable. According to the learned counsel for the appellant, there was hardly any motive for the appellant to have intended to commit murder of Baga. It was also submitted by the learned counsel that the prosecution is also guilty of suppressing some material and important witnesses who could have corroborated with the statement of Baga. On the other hand, the learned Public Prosecutor has supported the Judgment of the trial court. As already stated above, the entire case rents on the testimony of Baga who is the injured witness and the only eye witness of the occurrence. The story which has been given by Baga in the course of this statement is that on the day of occurrence at about 2. 00 P. M. he went to the house of one Dhola Meena as he wanted to borrow some amount from him. It is further stated that when he was demanding money from Dhola these the appellant there. Dhola told him at that time that Kalu appellant had unauthorisedly occupied his land. This witness further stated that he wanted to have a talk with appellant Kalu in this connection. But he became angry. The witness was taken to the back of the house of Dhola and he was shown the land which was illegally occupied by the accused appellant. Some altercation is alleged to have taken place at that time but Dhola is said to have separated them. Then this witness further stated, that the appellant met him in the way when he was going to his house. The appellant his apology at that time and thereafter they were going together. It is further stated that when they were passing in front of the temple of Balmathaji then the appellant gave a fist blow on his leg, on account of which he fell down. Thereafter he was struck on his head with a stone by the appellant. He further stated that the railway tracks were also, nearby and in the meantime when the train was approaching, the appellant gave a push to place him in front of the rail-engine but the rail-engine passed away and his head collided with the boggi of the train, on account of which he fell down and sustained injuries on the various parts of his body, including an injury on his leg.
(3.) IN the cross-examination, this witness stated that when he was passing near the river then Dhola's brother Punja met him and the appellant came there when they were enjoying 'bidi', He further stated that after enjoying 'bidi', the appellant took him to the house of one Bhera, from where he got a blanket purchased for him after paying Rs. 50/- According to this witness, at the house of Shera two traders, who were selling Blankets, were staying. According to this witness, the incident took pice after 1-1/2 hours he had enjoyed 'bidi', with Punja. About the incident the witness was cross-examined and he replied on cross-examination that he was going to his village through railway tracks. This witness then was confronted from his police statements where he admitted and stated that he told to the police about striking him by the appellant with a stone but this fact is not mentioned in the police statement EX. p/1. He further stated that he had scuffled with the appellant for about half an hour. He further stated that the railway track was on the height of 10 to 15 ft from the level of earth. This witness denied the suggestion given in the cross-examination that he had taken liquor at the house of Bhola. and while he was crossing the railway tracks he fell down and he was in a state of intoxication. It is note worthy that prosecution neither examined Bhola nor examined Bhera. Punja has been examined as D. W. I. From the perusal of the statement of this witness given in the court, it appears that it has been substantially changed from the version which has been given in the first information report. Further the story which has been given in the trial court that the appellant met the injured at about 8. 00 or 8. 30 P. M. and he expressed apology and, thereafter they were going together and the one blanket was got purchased by the appellant after paying Rs. 50/- then there was a scuffle and an attempt was made by the appellant to throw on the railway track, appears to be unnatural and improbable one. It is further note worthy that the appellant was hardly having any motive against the injured. The motive is said to be a dispute between Bhola and the appellant about the illegal occupation of some land belonging to Bhola. But the informant does not in picture at all in the said dispute. It is further note worthy that if the incident took place near the temple of 'mathaji'. then how the attempt could have been made by the appellant to throw the injured on the railway track which was at a height of 10 to 15 ft. from the earth level. It also appears to be unbelievable and improbable that when the appellant made an attempt to throw him on the railway track, in front of the engine, the injured collided with the boggi of the train going that side but still he sustained injuries on his leg, which resulted amputation of the lower part of his leg. The story of striking with a stone on the head of the injured by the appellant does not find place in the previous statement of this witness recorded by the police u/s 161 Cr. P. C. ;