- (1.) 1. This appeal has been filed by the accused appellant from jail against the judgment and order dated 20.5.2003 passed by the learned Addl.'Sessions Judge (Fast. Track), Sirohi Camp Abu Road in Sessions Case No. 69/2002 (18/2000) by which he convicted the accused appellant for the offence under section 304 Part-II in place of 302 IPC and 447 IPC, and sentenced him in the following manner: JUDGEMENT_69_LAWS(RAJ)11_2003_1.html Both the sentences were ordered to run concurrently.
(2.) It may be stated that since it is a jail appeal and the accused appellant was not being represented by anybody, therefore, this Court vide order,dated 268.2003 appointed Shri Kalu Ram Bhati as Amicus Curiae and he has argued the case on behalf of the accused appellant.
(3.) It arises the following circumstances: On 29.1.2000 at about 7.00 PM, PW 1 Jora Ram lodged a written report Ex.P/l with the Police Station Rohida District Sirohi stating inter-alia at that on 29.1.2000 in the evening at about .00 PM, his younger brother Bhima's wife Reshmi (hereinafter referred to as deceased) was cutting grass in the filed and at that,time PW2 Smt. Jetu was also with the deceased and she was also cutting grass and at that time, the accused appellant, who was having lathi in his hand, came there and he gave lathi below on the head of the deceased, as a result of which, deceased felt down and succumbed to her injuries o the. spot. It was further stated in the report Ex.P/l that at that time, Moti rushed towards the place and he tried to catch hold the accused appellant, but the accused appellant ran away and this incident was also seen by PW4 Ropi. ' On this report Ex.P/1, police registered the case being No. 14/2000 and started investigation. During investigation, site plan Ex.P/2 was got prepared by the police. The accused appellant was got arrested through arrest memo Ex.P122 and on the information of the accused appellant, a lathi was got recovered through fard Ex. P17. During investigation, the post mortem of the dead body of the deceased was got conducted by PW 10 Dr. Sumer Singh Bhati and post mortem report is Ex.P/17 where it was opined that the cause of death was shock developed due to head injury resulted in extra and intra cranial haemorrhage. After usual investigation, police submitted challan for the offence under Section 447, 302 IPC against the accused appellant in the Court Magistrate, from where the case was committed to the Court Session. On 23.1.2001, the learned Addl. Sessions Judge, Abu Road framed charges for the offence under sections 302, 447 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under section 313 Cr.P.C. was recorded. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Sirohi through impugned judgment and order dated 20.5.2003 convicted the accused appellant for the offence under section 304 Part-lI IPC in place of 3021 PC and 447 IPC and sentenced him in the manner as indicated above holding inter-alia: (i) That since in this case 10 was not examined by the prosecution, therefore, the recovery of lathi in question at the instance of the accused appellant cannot be said to have been proved and furthermore, that recovery cannot be said to have been proved because the witnesses of the lard of recover Ex.P/7, namely, PW6 Ratanlal and PW7 Lukiya have been declared hostile, but the learned trial Judge further observed that this fact would not affect the case of the prosecution. (ii) That the learned trial Judge placed reliance on the star eye witness PW2 Jeetu and the argument that since deceased was the mother-in-law of PW2 Jeetu, therefore, the statement of PW2 Jeetu should have not been believed was rejected. (iii) That the statement of PW2 Jeetu was further corroborated from the statement of another eye witness PW4 Ropi and it was further observed by the learned trial Judge that in case PW4 Ropi was not to be treated as an eye witness, the statement of PW2 Jeetu alone was sufficient as the same was corroborated by medical evidence. (iiiA) That presence of PW2 Jeetu on the spot cannot be doubted in any manner and from this point of view also, the learned trial Judge treated her as an eye witness and placed reliance on her statement. (iv) That lathi blow on the head of the deceased was given by the accused appellant. (v) That there was two injuries on the head of the deceased, as a result of which, she died and the same were caused by the accused appellant. (vi) That since the deceased was about 60 years of age and lathi was not a deadly weapon, therefore, if the accused appellant caused lathi blow on the head of the deceased; who was at that time about 60 years of age, intention o the part of the accused appellant. to murder her cannot be inferred and at the most knowledge was there and therefore, the learned trial Judge convicted the accused appellant for the offence under section 304 Part-II in place of 302 IPC. (vii) That the prosecution has also proved its case beyond reasonable doubt against the accused appellant for the offence under section 447 IPC. Aggrieved from the said judgment and order dated 20.5.2003 passed by the learned Addl. Sessions Judge (Fast Track), Sirohi, this appeal has been filed by the accused appellant from jail.;