S.S.BYAS,J. - (1.) ACCUSED Biharidan was convicted under Section 302 IPC and sentenced to imprisonment for life by the learned Sessions Judge, Jodhpur by his judgment dated November 11, 1976. The accused has come -up in appeal and challenges his conviction.
(2.) THE prosecution case is short and simple and may, briefly, be summarised as under:PW6 Smt. Ucchabkanwar is the daughter of the accused and the wife of PW 2 Fatehdan. The appellant has one more daughter Smt. Bhanwari Devi (Co -accused, acquitted by the trial court), who was married to Khetdan. The appellant had a son Devidan. PW 2 Fatehdan had a sister Sagar Kanwar, who was married to Devidan. A couple of months before October, 1975, Devidan passed away. The appellant's wife Smt. Chandra (also co -accused and acquitted by the trial court) took Sagar Kanwar to an unfortunate person and held her ill -luck as responsible for the death of Devidan. The relations between Smt. Chandra and Sagar Kanwar became strained and despite that Sagar Kanwar continued to live in the family of the appellants in village Tameriya Khurd P.S. Pipar City District Jodhpur. Ucchab Kanwar PW 6 came to her parent's house in Tamariya Khurd before Deepawali Samvat Year 2028 to have her first delivery there as is the custom prevalent in this part of the State. In the mid -night somewhere before October 25, 1975, when the members of the appellant's family and Sagar Kanwar were sleeping in their house, Smt. Bhanwari Devi and Smt. Chandra Devi over -powered the sleeping Sagar Kanwar by holding her hands and feet. Accused Bihari Dan sat on her chest and throttled her to death. When Ucchab Kanwar PW 6 tried to raise protest, the accused threatened to kill her also. Accused Bihari Dan thereafter went out of the house and brought his brothers Jeevrajdan and Khetdan. They and the appellant threw her dead body in the water -reservoir situate in the house. The appellant spread a false story that Sagar Kanwar had gone to her brother's house in village Butechi or some where else. Ucchab Kanwar PW 6 did not remain silent and told that her dead body was thrown in the water reservoir. The appellant collected some persons of the village and in order to show his innocence, efforts were made to find -out the dead body in the water reservoir. The dead body was thereafter taken out. When the appellant and the members of his family were taking Sagar Kanwar's dead body for cremation, PW 8 Smt. Gulab Kanwar, who resides nearby, asked as to how Sagar Kanwar had died. The appellant and his wife told that Sagar Kanwar committed suicide by drowning her self in the water reservoir. Gulab Kanwar told that it was a false story because in the preceding mid -night she had heard the shriek. She further told the appellant and Ors. that Sagar Kanwar was killed and murdered. The appellant and his wife took Smt. Gulab Kanwar in a corner, confessed their guilt before her to have killed Sagar Kanwar and requested her to keep her lips tight and not to divulge the matter to any body. Smt. Gulab Kanwar assured them that she would not lay open the secret to any body. The dead body of Sagar Kanwar was thereafter taken to the cremation ground and the cremation was performed. Smt. Gulab Kanwar (PW 8) could not remain silent and she sent the message of Sagar Kanwar's murder to her brother Fatehdan (PW 2) through one Chothmal. Chothmal contated Fateh Dan in his village Butechi and conveyed the message to him. Fatehdan came to village Tamariya Khurd where he learnt that his sister Sagar Kanwar was killed and murdered by the appellant and his wife, daughter, son and cousins etc. Gulab Kanwar (PW 8) also told him what was told to her by the appellant and his wife. Fatehdan took his wife Ucchab Kanwar to his village Butechi. From there, he went to the Police Station, Pipar City and presented written report of the crime on October 29, 1975. He did not find the Station House Officer there. He again went on October 31, 1975 and thereafter twice or thrice, but the Police Pipar City did not register a case. On November 20, 1975, he presented the typed report Ex.P 2 before the Deputy Inspector General of Police, Jodhpur, who forwarded it to the Circle Officer. The Circle Officer directed the Station House Officer, Police Station, Pipar City to register the case and make investigation. The Police ragistered a case. In all six persons: Prabhudan, Jetdan, Jeevraj Dan, Smt. Chandra Devi, Smt. Bhanwari Devi and tha appellant Biharidan were arrested. The investigation revealed that Smt. Chandra w/o the appellant, Smt. Bhanwari Devi d/o the appellant and the appellant Biharidan committed the murder of Sagar Kanwar. Her dead body was thereafter hurriedly cremated by Jeevrajdan,Jetdan, Prabhu Dan and the appellant Biharidan. On the completion of the investigation, the police submitted a crime report against the aforesaid six persons in the Court of the Munsif -cum -Judicial Magistrate, Bilara, who in his turn, committed the case for trial to the Court of Sessions.
(3.) THE learned Sessions Judge framed charges under Sections 302 and 201, IPC against the appellant Biharidan, under Section 302/34, IPC against Smt. Chandra Devi and Smt. Bhanwari Devi and under Section 201, IPC against Jeevrajdan, Jetdan and Prabhudan. They all pleaded not guilty and faced the ttial. In support of its case, the prosecution examined nine witnesses and filed some documents. In defence the accused examined six witnesses. On the conclusion of the trial, the learned Sessions Judge found no incriminating material against accused (1) Smt. Chandra Devi; (2) Smt. Bhanwari Devi; (3) Jeevraj Dan; (4) Jetdan; and (5) Prabhudan to connect them with the murder of Sagar Kanwar or her cremation. These live accused persons were, therefore, acquitted. The learned Sessions Judge also found no incriminating material for offence under Section 201, IPC against the appellant Biharidan. The charge under Section 302, IPC was, however, found duly established against him. Accused Biharidan was, therefore, convicted under Section 302, IPC and sentenced as mentioned at the very out -set. Aggrieved against his conviction, the accused has taken this appeal.;