- (1.) ACCUSED-appellant Dharma has filed this appeal from Jail against the judgment dated 31st July, 1971 by the learned Sessions Judge, Balotra, The accused-appellant has been convicted under sec. 302, IPC, and sentenced to imprisonment for life, and a fine of Rs 500/-, and in default of payment of fine to undergo further rigorous imprisonment for six months. The accused-appellant was also convicted under sec 323, IPC, and sentenced to one yesr's rigorous imprisonment. Both the substantive sentences were ordered to run concurrently.
(2.) THE prosecution story is that the accused-appellant Dharma was married to Mst. Nenu daughter of Chaitan. Chaitan died and was survived by his widow Mst. Sua. THE marriage of Mst. Nenu with Dharma was performed on the "akha Teej" of Smt. 2023. Ganesh, the younger brother of Mst. Nenu, was married to the daughter of Boda, who is closely related to Dharma. After residing for some time, with Dharma Mst. Nenu came back to her mother, and later on, did not go with Dharma. Mst. Nenu's mother insisted that the wife of Ganesh be sent first, and then Mst. Nenu be taken away. Mst, Sua has also one daughter Anchi who married to Rawta. Rawta was trying to ease the relationship between Dharma and Mst. Sua, Dharma came to Mst. Sua for taking away Mst. Nenu once or twice, but on one pretext or the other Mst. Nenu was not sent. On the last attempt, Mst. Sua told Dharma that as Diwali festival was very near, he may take Mst. Nenu the day following the Diwali. At that time, Rawta was also there. Rawta went away with his wife Mst. Anchi, but Dharma stayed there, Mst. Sua and Mst. Nenu were sleeping in the 'bera' of Raga, while Dharma used to sleep in the house of Mst. Sua. Early in the morning Mst. Nenu came for milching the cattle when the accused-appellant old her that she is evading to go back with him on one count or the other, and that today he shall murder her. THE accused-appellant Dharma then attacked Mst. Nenu with a "kassi" as a result of which she fell down on the ground, and then Dharma caused her death by throttling. Mst Sua also received some injuries while trying to save Mst. Nenu. A report containing these allegations was lodged by Nar Chanda at 8. 30 P. M. on 24-10-1970, at the Police Station, Gida. Another report was lodged by the accused-appellant himself at 8. 15 P. M. on 24-10-70 at the Police Station, Barmer. In this First Information Report, the accused-appellant stated that he was married to Mst. Nenu on Akha Teej of Smt. 2023, and and that he had paid Rs. 1000/- to Mst. Sua on account of this marriage. Later on, he had heard that Mst Nenu and Mst. Sua were of loose character, and that they were selling their flesh for monetary gains. In these circumstances, the accused-app-llant was not inclined to send his wife to her father's place. Mst. Nenu was not sent to Mst. Sua for three years. But on the persuation of Ganesh and Rawta she was sent. On 24-10 1970 at about II AM Dharma insisted that his wife should be sent, on which Mst. Sua said that he should return, otherwise, he would be beaten by shoes Mst. Nenu had a "kodal" in her hands. When Mst. Sua and Mst. Nenu started for the fields despite Dharma's persuation he snatched the "kodal" from the hands of Mst. Nenu, and struck her on her head with force three or four times, as a result of which Dharma believed, Mst. Nenu had died. The police started investigation, and chal-laned the accused under sec. 302, IPC. In the committing Court the accused-appellant stated that Bhoorsingh had killed Mst. Nenu. The accused pleaded not guilty before the committing Court, and thereafter he was committed to the Court of Sessions. The prosecution examined 14 witnesses and produced 16 exhibits, Ex. P/l to Ex P/16, and the statement of Mst. Sua in the committing Court was produced as Ex. D. /l. On behalf of the accused-appellant, Mr. Rajendra Lodha appeared as Amicus Curies. It was contended on behalf of the accused-appellant that the accused has not committed any offence, as he attacked Mst. Nenu with a 'kassi' under a sudden and grave provocation, as Mst. Sua was not sending his wife Mst. Nenu on one pretext or the other, and that despite repeated attempts Mst Nenu was not sent. It was also contended that the accused-appellant further harboured an impression that Mst. Nenu is having illicit connections with one Bhoorsingh, and that the mother and the daughter, that is, Mst. Sua and Mst. Nenu were selling their flesh for monetary gains, despite repeated requests and staying at the house of Mst. Sua as his wife Mst. Nenu was not, sent, the accused-appellant got a sudden and serious provocation under which he attacked Mst. Nenu resulting in her death. It was also contended that the confessional statement made by the accused-appellant before the police is not hit by the provisions of sec. 25 of the Indian Evidence Act, or by the provisions of sec. 162, Cr. P. C. (old), and as such can be used in favour of the accused. If these statements are used, then the accused is entitled to the exception of acting under grave and sudden provocation. On behalf of the State, it was contended that there is overwhelming evidence that the accused-appellant Dharma murdered Mst. Nenu by giving her "kassi" belows. It was further contended that the accused-appellant has himself admitted so in the F. I. R. lodged by him at the Police Station, Balotra It was also contended that there was no occasion for grave and sudden provocation, and that the accused-appellant Dharma was not entitled to strike Mst. Nenu with "kassi" resulting in her death. It was further contended that even if Mst. Nenu was not sent by Mst. Sua or that Mst. Nenu was not herself going with him an one pretext or the other, then too; there was no occasion for the accused-appellant Dharma to have assaulted Mst. Nenu with a "kassi" resulting in her death We have considered the respective contentions of the learned counsel for the parties, and have seen the record of the case carefully. It appears that the trouble arose when the wife of Ganesh was not sent. Dharma and Ganesh were married in a "atta Satta Marriages, which is commonly prevalent in the villages. Mst. Sua insisted that the wife of Ganesh should be sent first before Mst. Nenu is sent. The accused-appellant in his statement before the committing Court has said that the mur-der of Mst. Nenu was committed by Bhoor Singh. There is no evidence on record on this aspect of the matter- The accused-appellant has also stated that Mst. Sua was having illicit connections with Bheekhnngh, the elder brother of Bhoorsingh, and that Bhoorsingh was having illicit connections with Mst. Nenu. He has further stated that only the betrothal of Ganesh has taken place, and no marriage has been performed, and that under such circumstances, the question of sending Ganesh's wife to Mst. Sua's place does not arise.
(3.) PW/7, Dr. Madan Lal Kalla, who performed the post-mortem examination, has stated that the following injuries were found on the body of Mst. Nenu: - (1) Cut wound on the scalp 6" distant from the base of the nose. It was 2" x 2" x skin deep. (2) Cut wound on the scalp 3" distant from the base of the nose 3" v 2" skin deep sagittally on the vertex. (3) Cut wound on the right palm in between the Index and middle finger. It was 2" x 1/4" skin deep. (4) On the mudial side of the right elbow there was a bruise 3" x 1" with acchy-mosia black in colour and broken on bangles which she was wearing. Nail markings on the neck ever treached with reddish blue acchymosis present. Bleeding external clotted. Eyes protruding out. Pight pupil dilated and left eye eaten by maggets. On the right side chest there is a redish blue occhymosis present wound on the scalp present. Skull not broken, vertibrae healthy. Corresponding the two wounds on the scalp there were bluish redish two sagitally bleeding making on the meninges. Brain had undergone putrefection. In the opinion of this witness, the cause of death was due to the injuries sustained on the scalp causing bleeding, shock and strangulation of the neck causing asphynia. Pw/2 Mst. Sua stated that the accused-appellant had caused these injuries to Mst. Nenu by striking "kassi" blows. She has denied that she used to send Mst. Nenu to the house of Bhoorsingh. She is an eye-witness to the assault which was made by accused-appellant Dharma over Mst. Nenu and has narrated that Ganesh was married to the niece of Dharma, and that as the wife of Ganesh was not coming, she was not sending Mst. Nenu. She has further stated that in the morning Mst. Nenu had gone for milching the cattle. The accused Dharma told her that as she was loitering here and there, and as she was avoiding to go with him, he would murder her. Pw/5 Bhoorsingh has been examined as a "motbir". He has stated that he had no illegal connections with Mst. Nenu, and as Dharma used to beat her, he had advised Mst. Sua not to send Mst Nenu. Pw/12 Prem Singh was the SHO, Police Station, Gidi on 24-10 1970. He conducted the investigation, and at the information given by the accused, the "kassi" was recovered. ;