V. G. PALSHIKAR,j. - (1.) BEING aggrieved by the judgment and order of conviction passed by the learned Sessions Judge, Jalore (Camp Bhinmal) in sessions case No. 2/94 convicting the accused under Secs. 363,377 & 302 of the Indian Penal Code and sentencing him for two years rigorous imprisonment and a fine of Rs. 200/-, ten years rigorous imprisonment and a fine of Rs. 500/-and imprisonment for life and a fine of Rs. 500/-in default of payment of fine to further undergo one month and two months R. I. respectively, the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal.
(2.) FACTS giving rise to the present appeal stated briefly are that on 12. 10. 1993, first information report was lodged in Police Station, Karda in Jalore District that on 7. 10. 1993 at about 5. 00 p. m. , one Bhera a six years old child has been killed by one Ramesh Kumar after the child was sodomised by him and the fact was disclosed to the complainant on 11. 10. 1993 in the night by Ramesh Kumar making an extra-judicial confession. On the basis of this complaint, investigation was started and Ramesh Kumar was prosecuted for murdering the child. The prosecution has examined 17 witnesses two prove several documents exhibited by the State to establish beyond reasonable doubt the fact that Bhera was murdered by accused Ramesh Kumar after he was sodomised by the accused. Accepting the prosecution evidence, the learned Sessions Judge came to the conclusion of guilt and convicting the accused to suffer imprisonment for life. It is this order of conviction which is assailed in this appeal on the ground mentioned in the memo of appeal as also canvassed before us by the learned counsel. With the assistance of the learned counsel for both the sides, we have reappreciated the oral evidence and have scrutinised the documentary evidence again. We have examined rival contentions in light of our reappreciation of the evidence as was done by us. Pw. 1 Faglu has deposed that he had seen the accused going towards the Nala in the after-noon. He called the accused but accused did not response. He was the accused wearing black pant and the pant was soiled and the accused was wetted till knees. The witness heard the second day that accused killed the deceased. The witness has been cross-examined and there is nothing in his cross-examine to shake his testimony. He thus, proves the fact that the accused was seen in the Nala in the after-noon of 7th October,1993. Pw. 2 Smt. Kesi is an old woman who saw the accused Ramesh Kumar going with deceased Bhera towards Nala. She was them on the bank of the nala. She asked, the accused as to where he going and she was told that the accused is taking the deceased to see an elephant. The witness has also deposed that the accused Ramesh Kumar was wearing black pant and white shirt whereas, the deceased was wearing black half pant and white shirt. Later on, she heard that Bhera has been killed. Her cross-examination also is wholly inconsequential and she has proved the fact that accused and the deceased were last seen together on the bank of the Nala in the after-noon of 7. 10. 1993. Pw. 3 Smt. Radha is the mother of deceased Bhera. She has deposed that in the evening of 7. 10. 1993 when her son did not return home, her husband querried about him and when she offered to go to the accused and enquire about son, she was informed by the husband that the husband was told by accused Ramesh Kumar that they need not search for Bhera as he has gone towards Pabari Nala. Thereafter, when other relations came around the husband of the witness told them to search for Bhera near the Pabari Nala as Ramesh had told him that Bhera was going towards Pabari Nala. They were accordingly went to search the Nala and came back to report that they found the dead body of Bhera. Accordingly, report of death was made. The witness then deposes that four days after the report, accused Ramesh Kumar came to their house at about 8. 00 in the night and confessed before her husband that he has sodomised Bhera and killed him in intoxicating condition, Pw. 7 Vagta was present at that time. The witness has deposed that when Bhera had left the house, he was wearing shirt and half pant but the deceased did not have half pant on it. She is thus first witness examined by the prosecution to prove the extra-judicial confession made by the accused. Her cross-examination is inconsequential.
(3.) PW. 4 Krishna Kumar is a child aged about 11 years who deposes that he met Bhera and accused in the after-noon of 7. 10. 1993 and when he asked Bhera where he is going, Bhera told him that accused Ramesh Kumar is taking him to see an elephant near the Pabari Nala. The witness then states that when he saw Bhera, he was wearing white shirt and black half pant and Ramesh Kumar was wearing black trouser. He then learnt that Bhera drown in the Nala and died. He also is therefore, a witness who has last seen the deceased alive with the accused. He also corroborates other witnesses in relation to the statement by Bhera with the deceased is being taken by accused to see elephant near Pabari Nala. Pw. 5 Raga states that he heard about accused's confession to his guilty in the matter of killing Bhera. However, his evidence is inconsequential as everything he has deposed to was told to him by others. He however; has deposed that he saw the deadbody of Bhera and saw he was wearing only shirt and no half pant and his posterior is injured. Pw. 6 Chhagna is another witness who saw the dead body and who states that there is no half pant on the dead body. ;