Dave, J.—This ii an appeal against the judgment of the Sessions Judge, Jodhpur dated 26th July, 1954, whereby the appellants Jethiya and Motiya have been convicted under secs. 392 and 323 respectively. Jethiya has been sentenced to 5 years rigorous imprisonment while Motiya has been awarded 6 months rigorous imprisonment.

2. The prosecution case against the appellants was that on the morning of the 21st November, 1951, one Khiya son of Raju Vishnoi resident of Matora was going home from Pokarwali Nadi. At that time, three persons viz, the two appellants and one Nawalia beat him with Lathis saying that he was grazing his cattle in the field of Kirta Jat. It was further alleged against them that after Khiya had fallen on the ground, Motiya appellant caught hold of his hands and Jethiya and Navaliya removed the two golden Murkis which he was wearing in his ears. Motiya appellant also snatched from his possession one Bhakla and then all the three appellants ran away from that place because two persons Kana and Bhagwana came to the site, being attracted by Khiyas cries.

3. The first information report about this occurrence was lodged by Khiya himself at the Police Station, Bapini on 23-11-5! at 7 p.m. According to the procecution, the stolen gold Murkis and Bhakla were recovered at the instance of the appellant Jethiya from his sheep-yard and field respectively. All the three accused, Jethiya, Motiya and Nawalia, were challaned by the police for offences under secs. 392 and 397 LP C. in the court of the Sub-Divisional Magistrate, Phalodi. Navalia died during the pendency or" the inquiry in the court! of the committing Magistrate. Jothiya and Motia were committed to the court of the Sessions Judge, Jodhpur. The learned Sessions Judge had found that Motiya had taken part simply in beating Khiya and, therefore, he has been convicted under sec. 323 I.P.C. only. Against Jethiya it has been found that he also robbed Khiya of his gold Murkis and Bhakla and, therefore, he has been convicted under sec. 392 I.P.C. Both the appellants had denied all knowledge of the occurrence in the trial court. Their defence was that Khiya had enmity with them and, therefore, they have been falsely involved in the crime. Jethiya had also denied the recovery of the stolen property from his possession. One witness was produced in defence to prove that Khiya and Jethiya were on inimical terms. The learned Sessions Judge has disbelieved the defence witness.

4. Learned counsel for the appellants has raised two important questions of law in this appeal, but before dealing with them, it would be proper to be certain about the facts. So far as the factual part of the case goes, the three points for determination are (i) whether Khiya was between by the two appellants on the day of occurrence; (ii) whether the appellants removed Murkis and Bhakla from his person and, (iii) whether the Murkis and Bhakhla recovered by the appellants are same stolen articles.

5. The main prosecution witness regarding the occurrence is P.W. 3 Khiya himself. He has certainly cited two witnesses Kana and Bhagwana as persons, who came to the site on hearing his cries but Bhagwana was not produced by the prosecution and Kana who was examined as a witness, has not been believed by the trial court because of discre-pancies occurring in his statement—once given in the committing Magistrates court and next in the trial court.

6. Learned counsel for the appellants has urged that reliance should not be placed upon P.W. 3 Khiya but it appears from his statement that he has remained altogether unshaken in cross examination. His version is corroborated by other evidence and there is no reason to disbelieve him. He has stated that both the appellants and Navalia had attacked him with Lathies and they continued to beat him even after he fell down on the ground. Thereafter, when he was still lying on the ground, Motiya appellant caught hold of his hands while Jethiya and Navalia removed Murkis from his ears

Click Here to Read the rest of this document