BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment dated 14th April, 1980, passed by the learned Sessions Judge, Udaipur. The learned Judge by that judgment convicted the appellant for the offences under Sections 302 and 394 I. P. C. and sentenced him to imprisonment for life on the first count and imprisonment for seven years and a fine of Rs. 250/- in default of payment of fine to undergo one year's rigorous imprisonment on the second count with an order that the substantive sentences awarded for both the counts shall run concurrently.
(2.) BRIEFLY stated that facts of the case giving rise to the trial and conviction of the appellant in the present appeal are as under; On 10-8-79 at 11. 30 A. M. Kodara Gujar resident of Madhri lodged a written report Ex P. 14 at Police Station Falasiya to the effect that on 9-8-79 at about 2 P. M. his maternal aunt Smt. Nathi Gujar had gone to graze her cattle in pipalwala jungle, where she had been murdered with a knife by Laloo and his companion. That, the pair of silver anklets and pair of silver Baliyas (Bangles) were taken away by the miscreants. That the incident were seen by Ranga, Soma, Smt. Navli and Rama and they had seen Lalia running away. That on hearing the noise of the aforesaid persons, Thavra also reached there. Case under Sections 302 and 394 I. P. C. was registered by the Head Constable Ajay-Singh, Incharge of the police station. On 11-8-79 Ajaysingh went to village Pipalwala and inspected the site. He prepared the site inspection memo and site plan and the inquest report of the dead body of Smt. Nathi. Dr. Suraj Mal Mishra (P. W. 15), Medical Officer, Primary Health Centre, Jhadol, conducted the autopsy over the dead body of Smt. Nathi on 11-8-79 and prepared the post-mortem examination report Ex. P. 23. The Dr. noted following external injuries on the dead body; 1. Incised wound on neck, front side, left to median line of neck. From median line to distance of 1-8/10" slightly oblique in direction size 1-8/10" x 1/2" x 1-1/2" margins inverted and ecymosed. Depth of wound was oblique in direction upwards to downwards. Dark clotted blood was present and fresh blood coming out from injury. Injury was 2" above from mid point of manubrium sterni Edges cleen cut. Due to this injury the sterno-mastoid muscle also injured obliquely. 2. A transverse cut on trachea from median line to left side 1/2" in centre and 1/10" width. 2" below from upper border of cricoid cartilage. 3. Abrasion 1/2" x 1/10" on nose. Left side oblique in direction 1/2" above from tip of nose. Base was red. 4. Abrasion on neck 1-3/10" x 2/10" just left to injury No. 1. Transverse in direction and base was red. 5. Abrasion on neck 7/10" x 2/10" and 1/2" below from injury No. 6. Transversed in direction. Base was red. 6. Incised wound on neck 1" x 1/4" x 1/2" just left and below from Injury No. 1. Oblique in direction. Inverted ecoymosed and base was red fresh blood was deposited. 7. Incised wound on left forearm flexor side 1-8/10' x 3/10" x 4/10* and 1" above from left wrist joint. Transverse in direction inverted and ecoymosed and clean cut margins. 8. Incised wound on left hand dorsal side between thumb and first fingure 2" x 3/10" x 1/2" just above and medial side of thumbs of left hand, and depth of wound oblique in direction. Injury was upwards and downward in direction. Inverted and ecoymosed and clean cut margins. On dissection of the dead body the Doctor found Thorax, Larynx and Trachea red and congested. Blood was present in trachea which was in dark clotted and fluid condition also. In the opinion of the Doctor death of Smt. Nathi was due to shock and asphyxia due to sudden and excessive haemorrhage from injury on neck and transverse cut on trachea caused by sharp weapon. Injury of neck and trachea in the opinion of the Doctor was sufficient in the ordinary course of nature to cause death Ajay Singh (PW 11) took in possession the blood smeared clothes of the deceased. He recorded the statements of some witnesses. On 14-9-79 Ranjeet Singh (PW 12) S. H. O. Falasiya took the investigation in his charge. On 17-8-79, the S. H. O. arrested Laloo appellant vide memo Ex. P. 8 and co-accused Khema (since acquitted by the Sessions Judge) memo vide Ex P. 10. On 24-8-79, appellant Laloo furnished information for getting recovered one 'chhuri' (dagger) from his house. The information reduced into writting is Ex. P. 17. On the same day, co-accused Khema furnished information Ex. P. 11 for getting recovered one Chhuri from his house. Chhuris Ex. P 4 and Ex P. 5 were recovered in pursuance of those information of the appellant and the co-accused. On 25-8-79 accused Laloo and Khema furnished information for getting recovered pair of silver anklets and one Baliya from one Raju at Ahmedabad and one silver Baliya from one Chhabildas of Vijaynagar. The information of Laloo and Khema reduced into writing are Ex P. 19 and Ex P. 20 respectively. In pursuance of those informations the S. H. O. recovered one silver Baliya from Chhabildas at Vijaynagar which was said to have been sold to him for Rs. 57/ -. The recovery memo is Ex. P. 13. In pursuance of the information of the appellant and the co-accused the S. H. O. recovered a pair of silver Kadas and one silver Baliya from P. W. 14 Rajendra at Ahmedabad, which is said to have been pledged with him for Rs. 800/ -. The recovery memo is Ex. P. 21. A document of pledge Ex. P. 22, has also been produced by witness Raju. The Chhuris suspected to have blood stains and other articles, except the ornaments, suspected to be stained with blood were sent for chemical examination. The report of the Chemical Examiner is Ex. P. 24 and that of the Serologist Ex. P. 25. Thavara the son of the deceased and Smt. Navli had identified the ornaments to be those of the deceased. The identification parade for ornaments recovered during the course of investigation was conducted by S. D. M. Jhadol Shri Narsingh Rao on 18-9-79. Upon completion of necessary investigation, charge-sheet against the appellant and the co-accused Khema was filed in the court of Munsif Magistrate, Kotra. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions, committed the two accused to stand their trial in the court of Sessions Judge, Udaipur. The learned Sessions Judge charge-sheeted the accused for offence under Sections 302 and 394/34 I. P. C. and recorded their plea Both of them denied the indictments and claimed to be tried. To substantiate its case, prosecution examined 14 witnesses in all. Both the accused in their statements under Section 313 Cr. P. C. denied the allegations levelled against them. No defence witness was examined. The learned Sessions Judge did not consider the case against accused Khema established beyond reasonable doubt and acquitted him of the charges. The learned Judge placed reliance on the oral dying declaration of deceased Smt. Nathi before the persons who have claimed to have reached near her immediately after the occurrence, the testimony of the witnesses to the effect that they had seen Laloo running from the field where the incident had taken place and the recovery of the ornaments and held the case against appellant Laloo duly proved. The learned Sessions Judge, therefore, convicted the appellant for the aforesaid charges and sentenced him for the aforesaid charges as stated earlier. Feeling aggrieved by his conviction and sentences, Laloo has filed this appeal though the Superintendent Central Jail, Udaipur. As he was unrepresented, Mr. Vijay Singh Advocate was appointed Amicus Curiae to plead on his behalf. We heard Mr. Vijay Singh, learned Amicus Curiae and Mr. G. M. Bhandari, learned Public Prosecutor for the State. The learned Amicus Curiae strenuously contended that if the learned Sessions Judge did not find case against Khema, co-accused established, then there is no justification in holding the charges established against the appellant Laloo on the same evidence. Regarding the dying declaration on which reliance has been placed by the learned trial Judge, the argument of Mr. Vijay Singh is that on sustaining the injury on trachea, there could not be any chance for the victim to survive and therefore the story of the deceased telling the name of Laloo is a concocted one. On this point emphasis has been laid on the omission of the dying declaration in the first information report lodged by Kodra who at the trial had claimed to be a witness to the dying declaration. Mr. Vijay Singh drew our attention to the contradictions and the discrepancies appearing in the statements of the witnesses reaching the site and submitted that they could not be in a position to see any miscreant running from the site. Regarding the recovery of the ornaments, Mr. Vijaysingh, vehemently argued that there was joint information and from the statement of Ranjeet Singh, it is evident that both the accused had furnished similar informations for getting recovered the ornaments and the ornaments are said to have been recovered in pursuance of the information furnished by both of them and at the instance of the two accused. As such Mr. Vijai Singh emphasized that the recovery should not have been pressed into service against appellant. The learned Public Prosecutor, controverted these arguments and submitted that from the statements of the witnesses dying declaration is proved and as the deceased had named Laloo as one of the assailants, the learned trial Judge has rightly held the appellant guilty for the murder of Smt. Nathi. That because Rajendra (P. W. 14) had identified Laloo to be the person who had pledged the ornaments with him. the learned trial Judge was right in finding the guilt established against the appellant Laloo only.
(3.) AT the very outset, it may be observed that there is no direct evidence to the occurrence, though the first information report names certain persons as the witnesses of the actual occurrence. The prosecution case rests on the circumstantial evidence. Circumstances are as under ; (1) Witnesses Smt Navli, Ranga, Rama and Soma saw Laloo running away after the incident. (2) The oral dying declaration of Smt. Nathi before Navli. Ranga, Rama, Soma that Laloo and one more person injured her and took away her ornaments. (3) Recovery of Chhuri in pursuance of the information furnished by the appellant. (4) Recovery of one Baliya from Chhabildas and a Baliya and a pair of Kadas from Rajendra in pursuance of the information furnished by the appellant. Navli is the most important witness of the prosecution in the case because, as claimed by her, she reached near the injured first of all. She has stated that Nathi had brought lunch for her to the field where she had gone to the cattle on the day next to Rakhi. According to her, graze Laloo appellant inflicted knife blow to Nathi which injured her neck. The witness then raised the cry which attracted Ranga, Rama and others and they reached the place where she was. The witness thereafter stated that when she had rushed near Nathi, the latter told her that Laloo had ran away after causing knife injuries and that her pair of Baliyas also had been taken away by him. That, thereafter, Nathi was taken to her house and she breathed her last after dinner time. The witness also deposed that Nathi had also stated about there being one more companion of Laloo whom she did not know. Rama (P. W. 3) has stated that at about 2 P. M. he was grazing cattle in the jungle. Soma and Ranga were also there with him. They on hearing the cry of Navli " NATHI KE CHAKU LAGA KAR MAR GAYO HAI DAUDO, DAUDO " went to the place where Nathi was lying. That, they had seen Laloo Kalal and one man with him running from there. That, Nathi was conscious at the time and was speaking. That, on inquiry Nathi told that Laloo Kalal and one other man whom she did not know injured her with knife and ran away with her Kadas and Balias. Nathi was taken to her house. Similar are the statements of Ranga (PW. 5) and Soma (PW 6 ). Thavara (Pvv. 2) son of the deceased stated that Navli raising a cry went to him and informed about his mother toeing killed by Laloo and his companion. That, he went towards the site. His mother told that she has been injured with knife by Lalia Kalal and one more person and they had run away. He has stated about the clothes and the ornaments her mother was putting on when she left for jungle to graze the cattle and stated that those ornaments were not found on her body when he saw her after the incident. P. W. 1 Kodara has stated that when he was at his house he heard the cry of his maternal aunt and went to Pipliwala jungle where she was That, on enquiry Nathi told that she had been injured with knife and assailants were Laloo Kalal and his companion whom she did not know. She also stated about the miscreants taking away her pair of Kadas and two Balias. The witness stated that he thereafter went to Police Station Falasiya and lodged the report. On the face of it, it appears that Navli, Rama, Ranga and Soma had seen Laloo and one more person running away from the site. From their statements as well as those of Thavara and Kodara it appears that they had been told by Nathi assailants that the miscreant were Laloo and one person with him whom she could not identify. However on close and careful scrutiny of the deposition of these witnesses, we are of the opinion that the facts were not as they have deposed. The statements of the witnesses taken in light of one another show that they could not have reached near Smt. Nathi immediately after the incident and there could not have been any chance for them to see any-body running from the site. ;