SHYAM SUNDER BYAS,J. - (1.) AMIYA and Mst. Madi the appellants, were convicted under Sections 302 and 201, IPC and each was sentenced to imprisonment for life on the first count and three years' rigorous imprisonment with a fine of Rs. 100/ -, in default of payment of fine to further undergo four month' rigorous imprisonment on the second count by the learned additional Sessions Judge (1), Jodhpur by his judgment dated November 8, 1976. They have come -up in appeal and challenged their conviction.
(2.) BRIEFLY recounted, the facts and circumstances leading to the prosecution and conviction of the appellants may be summed -up as under: Baldeo Bhat had two wives Smt. Madi and Smt. Magni. He was residing with them in village Gajsinghpura, He passed away two or three years before August, 1975. His widows continued to live together in the same house, but the mutation of his fields was entered separately in favour of each. Smt. Magni, aged about 35 years at the time of her murder, had no issue while Smt. Madi (the appellant) has two daughters. Smt. Sayri and Smt. Jetabai by name. Smt. Sayri is married to the appellant Amiya while Jetabai is married to one Banshi. Accused Amiya has a son by name Gopiya. Smt. Madi, aged about 70 years in 1975, wanted to adopt Gopiya as the son. Smt. Magni, however, opposed this proposed adoption. Smt. Madi and Amiya therefore, took Smt. Magni as a hurdle in the proposed adoption and hatched a plan to finish her for ever. On August 25, 1975, some persons of village Gajsinghpura noticed a dead body floating in the pond situate nearly a kilometre away from the village. The matter was brought to the notice of the Sarpanch Iedan (PW 1). Iedan collected some persons of the village and went to the pond to verify the matter. They also saw the dead body floating in the pond. PW 1 Iedan then upon scribed report Ex. P 1 and sent it to Police Out Post, Asop. The Head Constable Incharge of the Police Out Post was not available there. As such, the Police Constable Girdharising took -up Ex. P 1 to Police Station, Pipar City and presented it there. PW 13 H.C. Shiv Singh decided to hold an inquest proceeding. He came to the pond and arranged to take out the dead -body. He prepared the Panchanama and the inquest of the dead body. The dead body was identified to be that of Smt. Magni. He arrived at the conclusion that the death of Smt. Magni was not natural but homicidal. He drew up report Ex. P 18 and submitted it to the Station House Officer, Police Station, Pipar City. The Police registered a case under Section 302, IPC and proceeded with investigation on August 28, 1975. The post -mortem examination of the victim's dead body was conducted by PW 24 Dr. Jaswant Singh on August 27, 1975. He noticed some external injuries on the dead body. Some of the injuries were on the upper spine chest and left parietal region. The doctor found that the cause of death was due to compression of chest and dead injury. The injuries were cumulatively sufficient in the ordinary course of nature to cause death. He issued post mortem examination report Ex. P 17. The investigation revealed that the appellants along with Hariya and Banshiya Bhat hatched a conspiracy to finish Smt. Magni. They committed her murder and threw the dead body in the pond tieing heavy stones in her clothes. Smt. Magni was in possession of some gold ornaments, of which she was relieved by the miscreants and they tried to sell them to different persons. The appellants were rounded up. Hariya and Banshiya absconded and could not be apprehended. After when the investigation was over, the police submitted a charge -sheet against the appellants in the Court of the Munsif cum Judicial Magistrate, Bilara, who, in his turn, committed the case to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge (1), Jodhpur. He framed charges under Section 302 and 201, IPC and in alternative under Sections 302/34 and 201/34 IPC against both of them, to which they pleaded not guilty and faced the trial. The accused, while denying the whole prosecution story, claimed absolute innocence. In support of its case, the prosecution examined 35 witnesses and filed some documents. In defence no evidence was adduced. On the conclusion of the trial, the learned Additional Sessions Judge found the charges duly proved against the appellants. They were, therefore, convicted and sentenced as mentioned at the very out -set. Aggrieved against their conviction and sentence, the accused have taken this appeal.
(3.) WE have heard the learned Counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.;