MOHAMMAD RAFIQ,J. - (1.) This appeal is directed against the judgement dated 31.10.2013 passed by the Additional Sessions Judge No.2, Bundi, District Bundi, whereby accused-appellant Shivraj has been convicted for offence under Section 302 I.P.C. and sentenced to life imprisonment with fine of Rs.10,000, in default whereof he was to further undergo simple imprisonment of six months.
(2.) The facts giving rise to the present appeal, are that on 24.07.2010, complainant Dhanraj submitted a written report to Prahlad Singh, Sub Inspector, P.S. Hindoli, District Bundi at the place of incident i.e. Village Pagara, District Bundi alleging therein that his elder sister Sajana was married to Shivraj S/o Sh. Ladu about 15-16 years ago and out of their wedlock, they were having one son and three daughters. Since last 10-12 years Shivraj was residing at Village Pagara, P.S. Hindoli, District Bundi and working as Driver. It was further alleged in the report that on 24.07.2010, he received an information on telephone that his sister Sajana was lying dead in her house. After reaching at village Pagara, he saw his sister lying dead in her room. At the spot he came to know that Shivraj husband of Smt. Sajana has assaulted Smt. Sajana due to which Smt. Sajana expired on the spot. On the basis of written report, police registered a FIR bearing No.256/2010 for offences under Section 302 I.P.C. at P.S. Hindoli, District Bundi. After registering the FIR, police started usual investigation and during the course of investigation, recorded the various statements of witnesses, prepared the site plan and arrested the accused-appellant. Police filed charge sheet against the accused appellant under Section 302 I.P.C. before the Magistrate concerned, from where the case was committed to the Court of Sessions where charges were framed against the accused appellant under Section 302 I.P.C. to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 18 witnesses and exhibited a number of documents. Thereafter, accused appellant was examined under Section 313 Cr.P.C. in which he stated that when he entered the house, he saw Smt. Sajana lying on the bed, bleeding from her head. Then appellant tried to stop the bleeding. Durgalal after examining Smt. Sajana informed that she has passed away. He stated that Durgalal stayed at his home during whole night. The witnesses have deposed against him falsely. In defence evidence, appellant examined witness Iqbal (DW1) and exhibited two documents on the record of trial court. On conclusion of the trial, the learned trial court convicted and sentenced the accused appellant vide the impugned judgment and order dated 31.10.2013 in the manner as stated above. Hence this appeal.
(3.) Shri Sanjay Sharma, learned counsel for the accused-appellant has argued that the learned trial court has erred in law in solely relying on the testimony of child witness Lakhan (PW5) aged 10 years, whose statement does not inspire confidence inasmuch as his presence at the seen of the occurrence when the incident took place is ruled out by both her grandmother Bhuri Bai (PW4) and cousin of the appellant Durga Lal (PW18). Presence of Durga Lal in his house has been admitted by Lakhan (PW5). Durga Lal stated that he took meals with Lakhan in the night and then they slept on one cot together. Accused-appellant Shivraj came to his house around 9-10 am and enquired from Lakhan about his mother. Lakhan told him that she had gone to Devli for collecting clothes. Then they went to sleep. In the morning, he went to met Lakhan, who had gone to the house of the Sarpanch for watching television. Deceased Sajna came in the morning and then alleged incident took place. In cross examination, this witness Durga Lal (PW18) has again reiterated this that Shivraj had not returned home till Lakhan was present in his house. It was he, who has called Lakhan from the house of the Sarpanch in the morning around 5-6 am. This witness has contradicted himself from what he has stated in examination-in-chief. He was subjected to cross examination where he stated that he did not see accused-appellant subjecting deceased to beating. When he woke up in the morning around 6 o' clock, Sajna was lying in the room and was bleeding from her head. Accused-appellant Shivraj did not came to him in the night and came around 5-6 o' clock. Learned counsel therefore argued that even as per this statement, neither Shivraj was present when the incident took place, nor Lakhan was present to witness any such incident. The accused has thus been falsely been convicted only with a view to save the real culprit.;