- (1.) THIS appeal is directed against the judgment of the learned Addl. Sessions. Judge, Jalore, dated 31st July 1975 whereby the appellant Uka was convicted under Section 302 IPC and was sentenced to imprisonment for life and to a fine of Rs. 100/ -, in default of payment of fine to undergo one month's rigorous imprisonment for having murdered one Moda on the night intervening 27 -6 -1975 and 28 -6 -1975 at 4 a.m.
(2.) THE prosecution case in brief is that the accused Uka, deceased Moda Jhulha PW 2 Khangara PW4 and other persons had gone to Mafwa with their cattle as there was famine in their village. Some of their women also accompanied with them. The wife of the deceased Moda viz. Gajra was also in their company. It is alleged that the accused Uka developed illicit relations with Gajra for which accused was rebuked. It is said that on the night between 27 -6 -75 and 28 -6 -75 after their return from Malva when they were sleeping the outskirts of village Meda the accused cut the throat of Moda with 'datarda' and on some alaram of the deceased PW 1 Hakiya got up and Khangara also got up. They were attracted to the scene of occurrence, Hakiya was sleeping at a distance of 25 pavandas. They saw the accused cutting the throat of the deceased with 'datarda' Hakiya then awakened. Jhutha PW 2 and one Jawana were informed about the occurrence. The accused then expressed that he would lodge the report to the police himself and went away saying so. The police station Jalore was about 26 miles away and he went on foot and lodged the report Ex. P. 1 Mohan Singh S.H.O. PW 6 on his verbal report registered the case under Section 302 IPC and arrested him. It may be mentioned that PW 4 Khangara was also sent for lodging the report and Mohan Singh accompanied with the accused visited the place of occurrence and Khangara met them on the way. Mohan Singh PW 6 prepared the site -plan (Ex. P.4) Farad Surat Mal (Ex. P.5) and other documents. On the information of the accused he recovered 'datarda'. The deadbody was sent to Sivana Hospital through a constable. Post mortem was conducted by Dr. Shiv Lal Mutha on 29 -6 -1975 at 9.30 a.m. He found the following injuries on the person of the deceased: (1) Lacerated wound 2 -1/2' x 1/1 -4' x 1/2' deep cutting stenomentoid muscle left side partially (not to the complete thickness); The wound was transverse starting from left mastoid process. Skin was having sharp cutting edge; (2) Lacerated wound 4/1 -2' x 3' x 2' deep at the level of junction of trachea and larynx. The wound was horizontal. Skin margins sharp cut. Clotted blood seen in the wound in copious amount; The following structures were found cut also below the wound No. 2; (1) Trachea completely cut at its junction with larynx; (2) Left cornu of hyoid bone broken; (3) Common carrotid left side cut and right side on the external carrotid cut; (4) Both sternomestoid muscle cut; (5) Juglar vein of left side cut. According to the medical officer the cause of death was due to cutting of the wind pipe and haemorrhage from large blood vessels. He prepared post mortem report Ex. P 8 and signed on it at A to B. According to him further though injury No. 1 alone was not sufficient to cause death in the ordinary course of nature but injury No. 2 was sufficient to cause death in the ordinary course of nature and that this injury can be caused by a datarda if it is sharp. After completion of the investigation a challan under Section 302 IPC was filed in the Court of Chief Judicial Magistrate, Jalore, on 29 -6 -1975. He committed the accused for trial to the Court of Addl. Sessions Judge, Jalore, who by his judgment dated 31 -7 -1975 convicted and sentenced the accused as aforesaid. Being dis -satisfied with his conviction, and sentence the accused has preferred this appeal.
(3.) WE have heard the learned counsel for the appellant and Shri L.S. Udawat the learned Public Prosecutor for the State, and have gone through the record of the case very carefully.;