M.C.JAIN, J. - (1.) THE appellant Pokar was prosecuted for the offences under Sections 302, 392 and 201, IPC, and was convicted of the said offence, under Section 302, IPC, he was sentenced to imprisonment for life and to pay a fine of Rs. 300/ -, in default of payment of fine to undergo further rigorous imprisonment for 3 months and under Section 392, he was sentenced to four years rigourous imprisonment and to pay a fine of Rs. 200/ -, in default of payment of fine to undergo further rigourous imprisonment for two months. No separate sentence was awarded under Section 201, IPC. The substantive sentences on the first two counts, were ordered to run concurrently. He was acquitted of the offence under Section 120 -B, IPC by the learned Sessions Judge, Balotra by his judgment dated September 26, 1973. The other accused Bakta was acquitted of the offences under Sections 392/120 -B, 120 -B and 201, IPC.
(2.) THE prosecution case is that, on 26 -5 -73, the deceased Lakhiya son of Surta Jat (a boy aged about 13 years) resident of village Sanawara bad gone to the village Hathitala, which is at a distance of about 5 miles, where his sister Mst. Nathu was married with one Deva. The deceased had left his house in the day. When he did not return from Hathitala for about 6 -7 days, his father Surta (PW 5) went in search of him, He went to his daughter Mst. Nathu at Hathitala, where he was informed that Lakhiya had returned after staying one night at her place. Thereafter, PW 5 Surta visited Viriya, and Jagroop, but he did not find any trace. Then he went to the house of Bhera Jat (60), Ward Panch of Sanawara (PW 6). There his son Gordhan met him who told him that Chimaram (PW 1) and Mst. Jiya (PW 2) had come to his house and had disclosed to his father Bhera that the appellant Pokar killed Lakhiya. Thereupon, Bhera went to the house of PW 1 Chima Ram Jat of Sanawara, who told him that the appellant had killed Lakhiya. Then Bhera took Chimaram with him and went to the house of the appellant. On being asked the appellant confessed that he had killed Lakhiya, on being asked to do so by Bakta (Mst. Nathu's husband's younger brother). The appellant also told that he along with Bakta had burried the dead body of Lakhiya. He became tearful and when he was returning to his house, his brother Kirta (PW 4) met him on the way. He told his brother that the appellant and Bakta had killed Lakhiya, so he may proceed to report the matter to the police. Thereupon, PW 4 Kirta went to the police station, Barmer and lodged the report on 4 -6 -73 at 5 p.m. In the report, he stated that when Lakhiya did not return then his brother PW 5 Surta went in search of him and on 3 -6 -73 when he was also proceeding to the Dhani of Deva, his brother Surta met him in the field of Deva Jat coming from opposite direction. When he asked about Lakhiya, then he started crying and disclosed that Pokariya son of Lachha Jat of Hathitala bad killed Lakhiya in the morning of 27 -5 -73 in the field of Bhera son of Sadula Jat of Sanawra (PW 6). He was killed in order to remove a pair of Murkies and a pair of Sankli made of gold and other silver ornaments, which the deceased was wearing on his person. Pokariya along with Bakta had concealed the dead -body somewhere. It was further stated by Kirta in his verbal report that Chima son of Ratna Jat and Mst. Jiya wife of Shera Jat had seen the appellant killing Lakhiya, when they were coming from Hathitala to the Dhani of Chimaram. Thereafter, he (Kirta) went to Birdha Mahajan, Nyaya Panch and Maga son of Kesra and also informed them about the incident and thereafter he went to the police station. PW 1 Chimaram had gone from Sanawara to Mst. Jiya in order to bring her as spirit of Rani Bhatiyaniji comes in her. He wanted her ailing mother to be treated by her. Both of them started in the morning of Jeth -Badi 10 from Hathitala and when they had reached near the field of Narana Jat, Chima stayed back for urination, Jiya continued to proceed ahead. According to Chima, he heard cries. Thereupon, he went up the sand dune and saw the accused and a boy lying there. On being asked by him, the accused disclosed his identity as well as the identity of the victim . He also identified the appellant. The appellant also invited him for removal of the ornaments and expressed that they will share half and half. Out of fear, he did not go to him as he had killed the boy. Mst. Jiya asked him as to how he has taken so much time. Thereupon, Chima told her that Lachha's son Pokariya (appellant) had killed Surta's son. Thereafter, they first went to the Ward Panch Shri Bheraram of Sanawara (PW 6) and disclosed the occurrence to him. Then they went to the house of Chimaram (PW 1) On report (Ex. P/13), case under Sections 302, 392 and 201, IPC, was registered. The SHO Hemraj (PW 10) visited the spot, which was at a distance of 10 miles from the police station. He arepared the site -plan Ex. P/9 and site -note Ex. p/10. The appellant was errested on 5 -6 -73 vide arrest memo Ex. p/6 and Bakta was arrested on 6 -6 -73 vide arrest memo Ex. p/1. While in the police custody, the appellant gave information in respect of the dead -body, the information memo whereof is Ex. P. 14. In pursuance of the information, the dead -body was recovered on the same day vide recovery memo Ex. P/7. The dead -body was recovered from the field of Jagta Jat of Hathitala at a distance of 2 miles from the field of Narana. The dead -body was identified by Surta, the father of the deceased. Then Furd Surat Hal Lash Ex. P/8 was prepared, an Autopsy on the dead -body was got conducted and clothes of the deceased were seized by memo Ex. P/9. Then, the deadbody was handed over to PW 6 Surta vide Ex. P/20. The accused further gave information regarding the ornaments recoverd on the same day by the ornaments on 6 -6 -73, the information memos Ex. p/15 and got the recovery memo Ex. P/2. An axe was also recovered on the information and at the instance of the accused on 6 -6 -73 vide information memo Ex. P/16 and recovery memo Ex. P/3. At the time of arrest of the appellant, some injuries were noticed on his person. His injuries were got medically examined on 6 -6 -73. The injury report is Ex. P/5. On 8 -6 -73 the SHO Shri Hemraj submitted an application for recording of confession of the appellant. On that application, the Magistrate remanded the appellant to judicial custody and ordered the Sub -Jailer to produce him on 9 -6 -73. The accused was produced at 9 a.m. and his statement was recorded at 11.00 A.M. and completed at 12 20 p.m. The confession of the accused is Ex. P/18. Investigation was conducted from the witnesses and after completion of the investigation, challan was presented in the court of Judicial Magistrate, Banner, who after committal enquiry under Section 207 -A, Cr. PC (Old) committed the accused for trial to the court of Sessions Judge, Balotra. The statement of the accuced was recorded during the committal enquiry, wherein he retracted his confession and has stated that he confessed the guilt out of the fear of the police. The learned Sessions Judge, Balotra charged the accused -appellant under Sections 120B, 302. 201 and 392, IPC. The accused, however, pleaded not guilty to the charge and claimed to be tried. At the trial, the prosecution examined PW 5 Chimaram, PW 2 Mst. Jiya, PW 3 Smt. Bali (mother of the deceased) PW 4 Kirta (uncle of the deceased), PW 5 Surta (father of the deceased), PW 6 Bhera Jat (Ward Panch of Sanawara), PW 7 Heeralal Oswal (43) (motbir of recovery of the ornaments), PW 8 Dr. Harak Raj Mathur, PW 9 Bhersingh Rajput of Hathitala (motbir of arrest of the accused and of the recovery of the dead -body), PW 10 Hemraj. SHO and PW 11 Thansingh, Sub -Divisional Magistrate, Barmer (who recorded the confession). The statement of the accused was recorded, in which he denied the prosecution case. After hearing the argument, the learned Sessions Judge convicted and sentenced the accused as aforesaid, relying on the testimony of PW 1 Chimaram, PW 2 Mst. Jiya w/o Shera, PW 5 Surta and PW 6 Bhera. The learned Sessions Judge also relied on the evidence of recovery of the dead body and recovery of the gold and silver ornaments on the information and at the instance of the accused and reliance was further placed on the confession (Ex. P/18) of the accused recorded by the Sub -Divisional Magistrate, Shri Thansingh PW 11. Dissatisfied with the conviction and sentence, the accused Pokar has preferred this appeal through jail.
(3.) WE have heard Mr. Doongarsingh, learned Counsel for the appellant Pokar and Dr. S.S. Bhandawat learned Public Prosecutor for the State.;