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CASE NO.: Appeal (crl.)  120 of 1998

PETITIONER: Kishnia & Ors.                                           

RESPONDENT: State of Rajasthan                                               

DATE OF JUDGMENT: 10/09/2004

BENCH: K.G. BALAKRISHNAN & B.N. SRIKRISHNA

JUDGMENT: J U D G M E N T K. G. Balakrishnan, J.

       The three appellants herein were found guilty of the offence punishable  under Section 302 read with Section 34 and also for the offence under Section  201 I.P.C.  The Sessions Court convicted these appellants and sentenced them  to undergo imprisonment for life for the offence under Section 302 read with  Section 34.  No offence was made out against the appellants under Section 201  I.P.C.  The appellants preferred an appeal before the High Court and their appeal  was dismissed.

       The first Appellant Kishnia and Second Appellant Mania are the children of  Shama.  These appellants used to graze their cattle in the field of Rawata and  there used to be quarrels between deceased Rawata and these appellants.  On  one occasion, when there was a quarrel , deceased Rawata is alleged to have  slapped the second Appellant Mania.  On 17.4.1976, deceased Rawata and his  son Rameshwar had gone to the nearby village for fetching water on a camel.  At  about 8.00 p.m., Rameshwar came running to his house and told his mother and  brother that appellants Kishnia and Mania and the third appellant Karnail Singh  had caused injuries to his father Rawata.  Rameshwar told them that the  appellants Kishnia and Mania were armed with lathis and appellant Karnail Singh  was armed with ’Sela’.  After some time, they saw the appellants standing little  away from the boundary for their field.  The appellants told them that Rawata had  been killed and warned them not to report the matter to anybody, otherwise they  would also be killed.  Their camel was found standing there.  After the appellants  left the place, they saw Rawata lying dead near the boundary of their field.   Mamraj, the other son of the deceased Rawata went to the Police Station  Rawatsar on 18.4.1976 at about 11.00 a.m. and lodged the First Information  Report.  PW 6, the Station House Officer visited the scene of occurrence and  prepared a map.  He held inquest over the dead body.   Sample of blood-stained  soil was collected from the place of occurrence and he noted some footprints at  the scene of occurrence.  The pair of shoes allegedly worn by deceased Rawata  was also taken into custody and was sealed.  The dead body was sent for post- morterm examination and as many as 25 injuries were found on the dead body.   During the course of the investigation, a bamboo lathi was recovered.  The ’Sela’  allegedly used by the third Appellant Karnail Singh was also recovered.

       The Sessions Court as well as the High Court  relied on  the evidence of  PW 4 Rameshwar and also the evidence of PW 2 Mamraj, the son of the  deceased and the evidence of PW 5 Tulsi, the wife of the deceased.

       The learned Counsel for the appellants strongly urged before us that the  Sessions Court as well as the High Court seriously erred in finding that the  appellants were guilty.  It was pointed out that there were a series of  contradictions in the evidence of PW 4 Rameshwar and that of the evidence of  PW 2 and PW 5.  PW 4 Rameshwar deposed that just before the sunset he and  his father went to the nearby village Sheikhchoolia for taking water.  On their  way, he heard some sound from behind  that they would not be able to go ahead.  

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When he turned back, he saw the appellants Kishnia and Mania who were armed  with lathis and the appellant Karnail Singh who was armed with ’Sela’.  All the  appellants started hitting the deceased Rawata and he fell on the ground, even  thereafter they continued hitting him.  PW 4 Rameshwar got scared and he ran  back to his house and narrated the entire incident to his brother Mamraj and to  his mother.

       PW 4 was extensively cross examined.  But there is nothing in evidence to  show that he had not seen the incident.  As regards the evidence of PW 2 and  PW 5, the learned Counsel for the appellant contended that they had no  opportunity to see the appellants as they were standing near the boundary of  their field and it was much after the darkness had set in.   These witnesses also  had no case that they had seen the appellants but they identified them by their  voice.  PW 2 and PW 5 had previous acquaintance with these appellants as their  properties were situate close to the field of the deceased Rawata.  There is no  inherent improbability in the evidence of PW 2 and PW 5 that they identified  these appellants by voice as they were standing at a distance.

The learned Counsel for the appellants further submitted that the incident  happened far away from the house of the deceased, however, the dead body  was found near the boundary of his property and the prosecution has not  explained as to how the dead body was found near the boundary.  According to  the prosecution, deceased Rawata had gone to fetch water on a camel.    The  camel had also returned to the house of the deceased and the body of the  deceased Rawata must have been carried by the appellants to the boundary of  his property.  The appellants threatened PW 2 and PW 5 by saying that they  shall not report the matter to anybody otherwise they would also  be  killed.  Of  course, there is no direct evidence as to how the dead body of deceased Rawata  was brought near his field but that does not give cast doubt on the prosecution  case.  The evidence of PW 2, PW 4 and PW 5 clearly establish that the  appellants were responsible for the death of Rawata.  The Sessions Court as  well as the High Court rightly convicted the appellants for the offence under  Section 302 read with Section 34.

       We find no merit in the appeal and the appeal is dismissed accordingly.