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2001 DIGILAW 1030 (RAJ)

Babulal v. State of Rajasthan

2001-07-06

JAGAT SINGH, N.N.MATHUR

body2001
JUDGMENT 1. - This appeal is directed against the judgment dated 12.2.1997 passed by the Additional Sessions Judge No. 3, Udaipur convicting the appellant for offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment to further undergo three month's rigorous imprisonment. 2. Briefly stated the prosecution case is that PW-2 Khatu lodged a First Information Report at Police Station Panarwa on 5.1.1996 at about 8.45 PM stating inter alia that in the morning he received an information that dead body of his father Rama was lying at a place known as Chhali Bokara. He alongwith other villagers Ward Panch and Sarpanch reached at the spot and found the dead body of his father. On this Information, police registered a case for offence under Section 302 I.P.C. and proceeded with the information. 3. After usual investigation police laid chargesheet against the appellant for offence under Section 302-377 I.P.C. 4. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 13 witnesses and produced certain documents. The prosecution relied on the following pieces of circumstances : (i) The deceased was last seen in the company of the appellant. (ii) The presence of blood spots on the pant, baniyan and dhoti of the accused. (iii) The recovery of knife from the possession of the appellant. The trial court found all the three circumstances proved and accordingly convicted and sentenced the appellant in the manner noticed above. 5. We have heard Mr. Vinit Jain, learned counsel for the appellant and the learned Public Prosecutor. We have also scanned, scrutinised the prosecution evidence carefully and considered the rival contentions.FIRST CIRCUMSTANCE : 6. In order to prove the incriminating circumstance of last seen the prosecution has produced PW-5 Thavra and PW-6 Panna. PW-5 Thavra has stated that he had seen Rama and appellant Babulal quarrelling. He intervened and threatened Babulal from entering into a quarrel with Rama. He also stated that Babulal ran away from the spot. Thereafter, he went to the shop and from the shop he went to his house. On the next day at about 9:00 AM, he was informed that beneath the Mahuwa tree a dead body was lying. He went to the spot and found that it was the dead body of Rama. Thereafter, he went to the shop and from the shop he went to his house. On the next day at about 9:00 AM, he was informed that beneath the Mahuwa tree a dead body was lying. He went to the spot and found that it was the dead body of Rama. Thereafter he went to PW-7 Navaldas, on the instruction of PW-7 Navaidas, he informed the son, wife and other members of the family of deceased Rama. He also stated that when appellant Babu was quarrelling with Rama, he was wearing a pant and white baniyan. 7. PW-6 Panna has stated that while he was returning from the shop of Vasu he witnessed appellant Babu and deceased Rama grappling on the road. He also stated that when he questioned Babulal, he asked him to mind his business. Thereafter, he left the spot. In the cross examination, he admitted that the place where the appellant Babulal and deceased Rama were quarrelling, there were houses of Thavra and Bhura etc. He also admitted that while Rama and Babulal were quarrelling, he did not see any weapon in the hand of appellant Babulal. He further stated that he reached on the spot next day at about 8.00 A.M. 8. Mr. Vinit Jain, learned counsel for tie appellant submitted that the evidence of PW-5 Thavra and PW-6 Panna iS unreliable as none of them reported the incident to the family members of the deceased. We have carefully considered the evidence of PW-5 Thavra. In cur view, his evidence cannot be said an evidence of last seen for the simple reason that he has categorically stated that on threat given by him the appellant left the spot. He stated" eSaus ckcw dks /kedk;k fd rw D;ksa >xM+k djrk gS rks ckcw Hkkx x;k " Thus, when appellant Babulal left the spot it cannot be said that he was last seen in the company of deceased Rama. It is admitted by PW-6 Panna that on the next day he reached on the spot at about 8.00 A.M. The son of the deceased PW-2 Khatu reached thereafter. The First Information Report was lodged at about 8.45 PM. If PW-5 Thavra and PW-6 Panna were the witnesses of the last seen, their names would have definitely appeared in the First Information Report. The First Information Report was lodged at about 8.45 PM. If PW-5 Thavra and PW-6 Panna were the witnesses of the last seen, their names would have definitely appeared in the First Information Report. In the First Information Report, it has been clearly stated that deceased Rama was carried by some unknown person. Thus, the prosecution has failed to prove the evidence of last seen by cogent and reliable evidence.SECOND CIRCUMSTANCE: 9. As regards the presence of blood spots on the pant and baniyan, learned counsel has criticised the evidence on number of grounds. It is not necessary to deal with all those contentions as it is admitted by the prosecution that the articles recovered were not produced in the court. The prosecution has not given any satisfactory reason for non-production of incriminating articles i.e. Pant, Baniyan and Dhoti. In the absence of the material articles produced before the court, there is nothing to show that the articles recovered belongs to the accused. Thus, the prosecution has failed to establish the second circumstance as well by the cogent and satisfactory evidence.THIRD CIRCUMSTANCE : 10. As regards the recovery of knife is concerned, at the first instance no blood stain has been deducted on it. Secondly, the post mortem report shows that there are no sharp edged injuries on the dead body of the deceased. Thus, the prosecution has failed to establish the third circumstance as well by cogent evidence. 11. In view of the aforesaid, there are no incriminating circumstance to connect the appellant in the alleged crime. The appellant is entitled to be acquitted. In view of the aforesaid, this appeal is allowed. The conviction of appellant Babulal for offence under Section 302 I.P.C. is set aside. He is acquitted of the said offence. The appellant is in jail, he shall be released forthwith, if not required in any case.Appeal Allowed. *******