- (1.) THREE accused appellants-Batti Lal, Ramji Lal and Ramkishore, have been convicted by the learned Sessions Judge, Sawai Madhopur, under his judgement dt. 22. 12. 1990 u/s. 302/34 IPC and each of them has been sentenced to undergo imprisonment for life and to pay a fine of Rs 200/-, in default of payment of fine, to further undergo two month's R. I. each.
(2.) AS per the case of the prosecution, on 14. 11. 1989 in Mouja Malarna Chor, P. S. Sawai Madhopur at about 4 p. m. the three accused appellants are said to have caused death of Kailash, with sharp edged weapons. A report (Ex. P. 10) was lodged by Meetha Lal (PW 11) on 14. 11. 1989 at 8. 30 p. m. and thereafter FIR in the prescribed form (Ex. P. 16) was registered at the police Station Malarna Doongar. The accused appellants were tried by the learned Sessions Judge and they have been convicted and sentenced as aforesaid. The plea of the accused before the trial court was of bare denial. They did not examine any witness in defence. It was contended by the learned counsel for the appellants that the learned trial court has wrongly placed reliance on the prosecution case and that there is no evidence, so far as the accused appellants are concerned. According to the learned counsel for the appellants, the trial court has wrongly held that Mst. Nand Kanwari (PW 7) had witnessed the occurrence. As a matter of fact, she was not an eye witness and had not witnessed the occurrence and so far as the evidence of Dharam Raj (PW 6) is concerned, he is a child witness and he has introduced two more accused persons, against whom no case was found during investigation and thus, charge-sheet was not filed against them. On the evidence of such child witness it will not be safe to convict the accused appellants. There can be no dispute and no dispute has been raised that Kailash (deceased) died as a result of multiple injuries and a bare reading of the post mortem report (Ex. P. 2) will show that the deceased had thirteen incised wounds on different parts of his body. It will also be seen that out of these injuries, there was an abrasion on left half of anterior side of scalp. He had also a contusion 3" x 3/4" on lateral surface of upper part of left upper arm. In the opinion of the doctor, the deceased died as a result of severe brain injury. All the injuries were stated by the doctor to be ante mortem in nature. The only question is as to whether on the basis of the record, it can be said that the prosecution has succeeded in proving the guilt against the three accused appellants. beyond reasonable doubt.
(3.) THE case of the prosecution rests on the testimony of Mst. Nand Kanwari PW 7 and PW 6 Dharamraj. So far as PW-7 is concerned, she has stated in her statement that the deceased Kailash was lying dead on the road. At that time, she was going to Jungle to squeeze milk She saw that Gopal was armed with a lathi, Shambhu was armed with a Gandasi, Batti Lal with an axe, Ramji Lal with a Katar and Ramkishore was having a 'chhuri'. All of them were giving beating to Kailash with their respective weapons. When Narain Pujari came to his rescue, Batti Lal also gave a blow by sword, to Narain on his hand. Girdawar also came to his rescue. She further states that she had requested the accused persons that they should not kill Kailash as he is their own brother. According to her, Shambhu and Gopal ran away and she went to the Jungle to milch the cattle and thereafter, she informed Meetha Lal who met her in the Jungle, that Kailash had been killed. It will be seen from her statement that her husband has two more brothers Badri and Ram Kanwar. Kailash (deceased) was the son of Badri and the two accused appellants Ramji Lal and Batti Lal are sons of Ram Kanwar. Thus, two of the accused appellants belong to the same family. THEre is material on record, as would be clear from the reading of the F. I. R. (Ex. P. 16), that about three years prior to this occurrence. Mool Chand Meena had been murdered and a case in relation to his murder had been filed against Meetha Lal Meena (PW-11), the person who has lodged the report Ex. P. 16. It will further be seen that Meetha Lal Meena is the son of Phoolchand who is the husband of Smt. Nand Kanwari (PW- 7 ). Nand Kanwari (PW-7) admits in her cross-examination that her statement had been recorded by the police and when she was confronted with her police statement (Ex. D. 2), portion A to B, wherein she had stated that in the evening at about 5 p. m. she and Rajbai were at the house, then Dharmraj had come running at the house and said that Kailash Kaka had been killed opposite the house of Krishan Lal by Batti Lal, Ramji Lal and Ramkishore. But she denied to have stated so. In her police station, portion C to D she has further stated that she along with Rajbai, mother of Kailash reached the spot at that time, Kailash had died, but she denied to have stated so in her police statement. It will therefore be clear that in the police statement (Ex. D. 2) she has not professed to be an eye witness and came out with the case that it was Dharmraj, a boy who had informed her and Rajbai about the incident and only then, she had reached the spot. It can therefore be said that she was not an eye witness of the occurrence. It will further be seen that Meetha Lal (PW-11) is the son of Mst. Nand Kanwari (PW-7 ). Meetha Lal had lodged the report (Ex. P. 16) and a perusal of the said report would show that it was Mst. Nand Kanwari who had disclosed him about the incident. THErefore, PW-7 Nand Kanwari cannot be said to be an eye witness of the occurrence. Consequently, on the exclusion of statements of PW-7 Nand Kanwari and the other alleged eye witnesses who had been declared hostile, there remains only the statement of PW-6 Dharamraj. Name of PW-6 Dharamraj does not find mention in the FIR which was lodged by Meetha Lal (PW-11 ). If Dharamraj would have disclosed to PW-7 Nand Kanwari about the incident and that he had witnessed the occurrence and had seen the three accused appellants causing injuries to the deceased Kailash, the report alleged to have been lodged after having talked the PW-7 Nandkanwari, by Meetha Lal, must have contained the name of Dharamraj. Not only this, PW-11 Meetha Lal states that it was PW-7 who had disclosed the names of the eye witnesses Narain and Girdawar but hedid not disclose the names of the eye witnesses in the report Ex. P 16 in the prescribed form and the report in writing (Ex. P. 10 ). PW-11 Meethalal also states that he had enquired from his mother as to how she came to know the names of the accused persons, then she told him that she had gone to the spot and had requested the accused persons as to why they were beating Kailash. He also stated that his mother had accompanied him. Rajbai PW-10 has stated that her grand son Dharamraj came to her and told that opposite the house of Kishanlal and Moolia three accused persons had killed Kailash. It is not mentioned therein that Dharamraj had stated that he had seen the accused persons actually killing Kailash. She states that her daughter Ramdhani had also reached the spot. Dharamraj PW-6 as said earlier is a child witness and was aged about 12 years at the time of the incident. PW-6 states that at about 4 or 5 p. m. on the day of the incident, he was going from his 'bara (enclosure), then he saw that the accused appellant Battilal came running and gave a blow by sword on the head of his uncle Kailash. Then Batti Lal caught hold of Kailash by waist and then Ramjilal gave a blow by a small sword to Kailash. Ramjilal repeated the blows 3-4 times. Accused Ram Kishan then gave blows on the head of Kailash with knife. He also stated that Gopal gave a lathi blow on the head of Kailash and Shambhu caused a blow by sword on his hand and then Shambhu gave a blow by Gandasi and then the accused persons went away from there. He then went to his house and told his Badi Maa Raj Bai about the incident. He did not disclose the incident to anybody else. He further states that besides Kailash the accused persons had also given beating to Narain who had received injury by sword on his hand and at the time of the incident, Johari, Jairam, Nandkanwari, Narain had come. There might be other persons whom he did not know. He admits that there were houses near the place of occurrence where people reside. He further states that first Battilal had come and given a blow by sword and thereafter about 20-25 seconds later, Ramjilal came and gave beating to Kailash. Ramjilal was armed with a small sword and had given two blows by it on the head of Kailash. At that time, Kailash was lying on the ground. After about 5-10 seconds of this, Ram Kishan came there who also gave blow by knife to Kailash on his shoulder. He states that when the injuries were being inflicted to Kailash, he was following him (deceased ). It will be seen from his statement that he does not say that all the three accused appellants came together, rather he states that they came one after the other and after one of the accused had already given beating to the deceased. In other words, it was submitted that beating was not given at the same time but in the interval of about-5-10 seconds by different accused persons. It will further be seen from his statement that there were two more persons Shambhu and Gopal and as said above, the prosecution did not find any case against them and even charge-sheet was not filed against them. He stated that he had disclosed the names of Shambhu and Gopal to police but when he was confronted with his police statement (Ex. D. l) wherein these names were not mentioned, he could not explain the conflict. As already said earlier, an occurrence had taken place three years prior to the present occurrence in which Moolchand had died. After the death of Kailash, it appears that public ceremony had taken place and this witness had inherited the property of Kailash. This witness cannot be said to be an independent witness and for the reason, we have already said above that he has introduced two more persons as accused persons and that case was not relied upon, we are of the opinion that this witness cannot be said to be a witness of sterling worth and therefore, only on the basis of his testimony, it will not be safe to convict the three accused appellants. ;