FAROOQ HASAN, J. - (1.) THE appellant-Baksha confined in District Jail, Tonk, has come up in this appeal against his conviction under Sec. 304, Part 1, IPC, and sentence for nine years rigorous imprisonment with a fine of Rs. 500/- (in default, further - month's R. I.) imposed by the learned Sessions Judge, Tonk, vide his judgment dated March 17, 1989.
(2.) TO begin with, stating in a little compass, prosecution's case is based on an oral report lodged by one Laxminarain (PW 4), at police station Nagar Fort (District TOnk) on 24. 11. 86 at about 5. 30. The version given out in oral report is that at about 4 p. m. when the informant was reaping bis Great millet crop in his field and Moti & Sheoji were also reaping Great millet crop in nearby fields whilst his elder brother Bhura (deceased) was grazing his cows nearby, at that time, a flock of sheep belonging, to gipsies of the Marwar (a place from western Rajasthan State) being wandered entered the fields and started feeding on their Great millet crops thereupon his brother Bhura turned the sheeps out of the field to which one Marwari protested thereby war of words in between them and a Marwari apart from infliction of a lathi blow by Marwari on the temporal region of Bhura who fell down and from whose mouth the blood started oozed out, as a result of which, Bhura died. It was also alleged that Marwari was caught hold of by these three persons, Laxminarain (informant), Moti & Sheoji, and on being asked, that Marwari gave out his names as Baksha; and thus, taking Baksha they reached the police station and the deadbody of Bhura has been taken to the village from the field. Upon the aforesaid report,a case for the offence under Section 302, IPC was registered. During investigation, the appellant who was produced at the police station while lodging the oral repot, was arrested, lathi was recovered vide memo Ex. P. 7 and Ex. P. 8; the Investigating Officer reached the spot on 25-11-86, prepared the site plan (Ex. P. 2) and the inquest report (Ex. P.) and then got the post mortem report (Ex. P. 4) from the doctor who conducted autopsy on the person of Bhura (deceased ). After completion of investigation, challan was filed in the Court against the appellant for the offence under Section 302, IPC and he was committed to the Court of Session for trial. The learned Session Judge framed the charge under Section 302 IPC against the appellant who denied, the charge and claimed to be tried. In all nine witnesses have been examined by the prosecution. The accused-appellant in his statement denied the allegation levelled against him by the prosecution witnesses. but did not produce any witness in defence. Learned trial Court after hearing the parties, passed the impugned judgment. Hence this appeal I have heard the learned counsel for the parties. First limb of arguments on behalf of the appellant urged by Shri S. M. Ali was that the appellant was apprehended only on suspicion otherwise there was no evidence against him and in this view of the matter, according to him, the learned trial Court was not justified in convicting the appellant. To fortify the contention (put supra), Shri S. M. Ali learned Advocate for the appellant pointed out a series of infirmities apart from discrepancies in the statements of the prosecution witnesses which I would deal with a little later. Learned Public Prosecutor, on the other hand, contended, that there was evidence against the appellant so, the learned trial Court was justified in convicting the appellant for the offence under Section 304, Part 1, IPC Having considered the points raised and perused the entire record, there cannot be any dispute that the deceased died due to the injuries sustained on his person and the cause of death as mentioned in the post mortem report as well as stated by the doctor (PW 3) before the trial Court, was due to fracture on the temporal bone of the skull. In the post mortem report three injuries were stated to have been found on the dead body of the deceased which are quoted below : - 1. Lacerated wound 1/2 cm. x 1/2 cm. on medical malleolus on the left ankle. 2. Laceration 1/2 cm. x 3/4 cm. on the upper lips. 3. Swelling 10 cm. x 3 cm. on the left temporal region of the skull; on dissection there was fracture on the left temporal bone Extensively from left temporal medibular joint upto the centre of the bone. There is sub dural haemorrhage present over the brain surface. In order to delineate the contention raised by the learned counsel for the appellant, one has scrutinise the evidence led by the prosecution so as to ascertain whether the prosecution in the facts and circumstances of the case brought on record has succeeded in bringing home the culpability against the appellant. The trial Court convicted the appellant mainly on the basis of evidence of Laxmi Narain (PW4) who has reiterated first part of the story narrated in the FIR i e. he was in his field having reapen Great millet and that apart Shivraj (PW 1) & Moti (PW 5) were also reaping the Great millet crop in their fields whereas Bhura was grazing cattle and further stated the sheeps large in number entered the field of the deceased and started damaging the standing Great millet crop and at that time, the deceased came at the scene of occurrence and tried to turn out the sheeps from his field but, after war of words, the accused inflicted lathi blow on his head. According to the statement of Laxminarain (PW 4), thereafter they ran towards the place of occurrence and saw that one of the Marwaris has taken away the sheeps and they caught the appellant who has having lathi in his hand and produced the appellant at the police station while lodging the report (Ex. P. 5 ). But in his cross-examination the witness (PW 4) admitted that in between his field and that of Bhura (deceased) - place of incident fields of Vishna and Raja are situated measurements of which have been stated by the witness as 4 bighas and 3 bighas respectively where admittedly, Great millet crop was standing equal to the height of the man. In cross-examination the witness (PW 4) also admitted that there was a flock of sheep numbering about 2000 with which five to twenty five Marwaris were there and further more, about 500-700 sheeps entered the field of the deceased which were of the appellant. Tout an contraire, in the report (Ex. P. 5) the informant (PW 4) has given out a different version stating that the sheeps entered in his field and damaged his crop and at that time his brother Bhura intercapted and had war of words in between him and a Marwari and thereafter Marwari inflicted a lathi blow on his head thereby his brother fell down and died. Thus, the witness (PW. 4) con-fronted with his above version and admitted that the said version in Ex. P. 5 is correct. The witness also admitted that after war of words, Marwari and the deceased made assault on the either side. Laxminarain (PW 4) further stated that when he alongwith Moti reached the spot the appellant was standing there and they therefore, caught and produced him at the police station.
(3.) FROM what has come out from the statement of the witness (PW 4), (put supra), ft is thus clear that the witness was accompanied by Sheoraj (PW 1) s/o the deceased and Moti (PW 5) and, therefore his evidence was required to be corroborated by Sheoraj (PW 1) arid Moti (PW 5) but unfortunately, his statement (PW 4's) has neither been corroborated by Sheoraj (PW l)nor by Moti (PW 5) who has been turned hostile. Sheoraj (PW 1) is son of the deceased and he initially had gone to say before the trial Court that no injury was inflicted on the person of the deceased in his presence and, therefore he was declared hostile. However, in cross-examination he admitted infliction of lathi blow by one Marwari on the person of his father and not by the appellant and moreso, in cross-examination done by the learned counsel for the accused, the witness (PWl) admitted that no damage was done in their field inasmuch as the sheeps never entered their field whilst those were passing through a public way and at that time his father intercepted and asked Marwari not to pass through the public way thereby the occurrence took place. Moti (PW 5) has stated that at the relevant time he was at his house and he was informed by Girraj that a Marwari inflicted a blow on the person of his elder uncle who died and on this information, he bad gone to the scene of occurrence and when he reached there he saw that Laxminarain, Hajari, Badri, Girraj & Heeralal were present but Marwari was not there. Whereas, Girraj (PW 7) has deposed that after hearing hullabaloo he was first to reach at the scene of occurrence and there he found that a number of Marwaris was standing there and among them the appellant was caught. According to his evidence (PW 7's) Laxminarain and others reached the spot after him, inasmuch as he admitted in his cross-examination that the place where the deceased was beaten was not visible because the crop of Great millet was standing in between the fields of the witnesses and he did not see any person beating the deceased. Badri (PW 6) stated that he was informed by Girraj of the incident and when he alongwith Moti, Girraj and Heeralal reached the spot, none was there whilst Laxminarain, Moti and Sheoraj had gone to the police station alongwith Marwari but that Marwari was not taken in his presence. ;