SURENDRA NATH BHARGAVA, J. - (1.) THIS is an appeal by accused Omprakash against the Judgment of Sessions Judge, Sawaimadhopur dated 7th May, 1982 convicting the accused appellant under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 500/ - and also convicting under Section 201 IPC and sentencing him for three years imprisonment and a fine of Rs. 200/ -in default of payment of fine, to undergo further rigorous imprisonment for two months. Both the sentences were ordered to run concurrently.
(2.) THE facts of this case are very peculiar. In this part of the country, there has been a superstition that if some body sacrifices the person who borns by breach delivery to the goddess Bheruji he gets hidden treasure and it is told that with this belief the accused appellant murdered his brother -in -law Devi Ram and it is on this charge that the present accused faced the trial. The prosecution case briefly stated is that on 7 -11 -1980 villagers Heera Lal, Mathura Lal and Ram Prasad saw a dead body floating in a 'Khadda' (pit) near this water channel and reported to Sarpanch Shri Sheonarain (PW 1) of Gram Panchayat Uniyala vide Ex. D3 to the effect that the dead body of a child does not belong to the village but seems to be of some other village. He reported the matter to the Police which is Ex. P. 1. Thereafter the police prepared the Panchnama in the presence of Shri Radhey Shyam and Pannalal, from which it is clear that the name of the deceased was not known till then. The post mortem was conducted on 9 -11 -1980. The post mortem report is Ex. P. 5, wherein also the name of the deceased was written as 'unknown Hindu' aged about 14 years approximately and that the dead body was found floating on the water. The Doctor has opined that the cause of death is Asphyxia by suffocation, and the time since death is about 3 days. The articles, namely Baniyan half sleeve, one under -wear, one garland in the neck, one black thread in the waist and one shoe on the body of the deceased were taken by the Police vide Ex. P. 2 in presence of two Motbirs Shri Radhey Shyam and Shri Panna Lal. Thereafter, the dead body was cremated vide Ex. P. 3 by the Police as the dead body was unclaimed as the name of the deceased was not known. On a report from Mukhbir of village Pipalda that the dead body belonged to a child from Mewara village, who is the brother -in -law of accused Omprakash, the S.H.O. Shri Sobran Singh (PW 13) went to the village Mewara on 12 -11 -1980 and interrogated Mst. Laxmi (PW 6) wife of accused Omprakash and sister of the deceased and also Mst. Keshar mother of the deceased and other neighbours. As a result of enquiry, the SHO found that it was accused appellant Om Prakash who had sacrificed (murdered) deceased on the alter of Bheruji with an object of getting some hidden treasure. Thereupon a case No. 112/80 was registered on 16 -11 -1980. After usual investigation a challan was put up against the accused appellant along with other accused persons in the court of Magistrate who committed the case to the Sessions and the learned Sessions Judge after recording the statements of the prosecution witnesses and recording the statements of accused persons, in which they denied the charges, and after examining two defence witnesses, has ultimately found the accused appellant guilty under Sections 302 and 201 IPC and convicted him as aforesaid, while acquitting other six accused persons. It is against this judgment that the present appeal has been preferred.
(3.) AT the out set, it may be mentioned that there is no eye witness of the said incident and the whole case is based on circumstantial evidence -The prosecution has examined Sheo Narain (PW 1), who is Sarpanch of village Uniyale and who had sent a report to the Police Station Khendar (report Ex. P. 1) and in whose presence the Panchanama of the dead body (Ex. P. 2) was prepared. This Ex. P. 1 was brought to him by Radhey Shyam PW 2 and report was sent at about 8.00 A.M. in the morning and the police had reached the spot at about 10 or 11.00 A.M. When he reached the spot, the dead body was floating, The police also recovered a Thela from near the place containing some clothes, etc., and he had also drawn signed the proceedings drawn by the police on that occasion. Thereafter the witness was called in the police Station after 10 -15 days and police had drawn some proceedings in that connection.;