Prosecution must prove guilt beyond reasonable doubt; inconsistencies in eyewitness accounts and medical evidence raise doubts on intent and culpability under Section 302 IPC.

JUDGMENT :

FARJAND ALI, J.

1. By way of filing this instant appeal under Section 374 (ii) Cr.P.C., the appellant has assailed the judgment dated 10.07.2000 passed by learned Additional Sessions Judge, Bhinmal in Sessions Case No. 51/99 (18/98), whereby the appellant was convicted for the offence under Section 302 IPC and sentenced to life imprisonment with a fine of Rs. 100/-, and in default of payment of fine, to further undergo 15 days’ simple imprisonment, and also convicted under Section 341 and sentenced to one month’s simple imprisonment, with both the sentences directed to run concurrently.

2. The prosecution case, in brief, is that on 16.11.1997, Bhura s/o Uka Bhil, resident of Borta, lodged a written report (Exhibit P-10) at Police Station Modra while being at Modra Hospital. In the report, it was alleged that the complainant and his brother Bharatiya resided in separate households at Borata Bhawri but in close proximity. On 15.11.1997 at about 6:00 p.m., accused Vachna came to the house of Bharatiya and took him along. When Bharatiya did not return till about 9:00 p.m., the complainant went out in search of him. Near Jakrana Nala, the complainant heard cries of his brother and upon reaching the spot, saw that the accused persons Vachna, Kheta, and Himta had wrongfully restrained Bharatiya. It was alleged that accused Vachna struck a stone blow on the neck of Bharatiya, while Kheta and Himta assaulted him with fists and kicks. At that time, Mangia s/o Kesa Bhil along with the complainant intervened and rescued the injured.

2.1 The report further recited that a quarrel had earlier taken place between accused Vachna and deceased Bharatiya after Diwali, and owing to that enmity, accused Vachna, after consuming liquor, assaulted Bharatiya. The injured was taken home and later shifted to the hospital when conveyance was available. On the basis of the said report, an FIR was registered for the offences under Sections 341 and 323 IPC . During investigation, since the injured succumbed to his injuries, Section 302 was also added. Upon completion of investigation, the Station House Officer, Police Station Modra, submitted a charge-sheet against the accused persons before the Court of learned Additional Chief Judicial Magistrate, Bhinmal for the offences under and 302/34 . The case was subsequently committed to the Court of Sessions under Section 209 Cr.P.C.

2.2 After hearing both sides, charges under Sections 302 and 341 IPC were framed against accused Vachna, and charges under /34 and 341 were framed against the co-accused Kheta and Himta. The accused denied the charges and claimed trial. The prosecution examined witnesses including Dr. K.K. Goswami (PW-1), Mod Singh (PW-2), Mangia (PW-3), Dr. B.L. Chauhan (PW-4), Dr. G.M. Solanki (PW-5), Bhura (PW-6), Keria (PW-7) and Dursadan (PW-8), besides producing documentary evidence. In their statements under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed false implication, asserting that no such assault was committed by them. In defence, witnesses Mahendra Singh, Bhanwar Singh, and Chhail Singh were examined.

2.3 Upon appreciation of evidence, the learned Additional Sessions Judge, Bhinmal convicted accused Vachna s/o Shankara Bhil under Sections 302 and 341 IPC and sentenced him to life imprisonment with fine, while co- accused Kheta and Himta were acquitted of the charge under Section 302 /34 but convicted under Sections 323 and341 and awarded appropriate sentences.

2.4 Aggrieved by the judgment and order of conviction and sentence dated 10.07.2000, the appellant–Vachna has prefe