IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. CRIMINAL APPEAL No.150/1985

1. Sua S/o Bhura, aged about 60 years

2. Kailash S/o Ram Kumar, aged about 17 years

Both by caste Dhakar, resident of Rampura,

P.S. Uniara, District Tonk.

----Accused appellants

Versus

The State of Rajasthan

----Respondent

__________________________________________

For appellants : Shri Syed Sadat Ali & Shri Syed Zakawat Ali

For Respondents : Shri B.N. Sandu, Public Prosecutor.

__________________________________________

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE VIJAY KUMAR VYAS

Judgment

18/01/2017

Per Vijay Kumar Vyas, J.

1.

Appellant – Sua has died during pendency of this

appeal, as such, the appeal to his extent stands abated.

2.

The appeal has arisen out of judgment dated

21.3.1985 rendered by learned Sessions Judge, Tonk in

Sessions Case No.31/1984, whereby the appellant Kailash for

offence u/s 302 IPC and appellant Sua for the offence u/s

302/34 IPC were convicted and each was sentenced to undergo

life imprisonment and to deposit Rs.500/- as fine, in default of

payment thereof, to further undergo six months’ rigorous

imprisonment.

(2 of 10 )

[CRLA-150/1985]

3.

Brief facts of the case are that Ram Sahay (PW-5)

submitted a written report (Ex.P-1) to SHO, Police Station

Uniara on 27.9.1984 at about 8.30 PM to the effect that on the

very day, his father – Bajranga Jat (deceased) went forest to

graze cattle. At about 3.00 PM, Badri (PW-2), Ram Phool (PW-

3) and Bhairu Lal (PW-4) brought his father in unconscious

condition on a bullock cart. Ram Sahai (PW-5) was also with

them. Badri told him that on entering the cattle in agricultural

field of Sua, at about 2.00 PM, Sua and Kailash gave his father

– Bajaranga a severe beating with sticks. Kailash also

strangulated neck of the deceased with his two hands. At the

very moment, they reached there. Accused left his father,

assuming him to be dead, saying that he was damaging our

crop by cattle, we have finished him today. Bajranga was

brought to Uniara on camel cart but he died on the way. On this

information, formal FIR No.91/1984 (Ex.P-2) was registered.

Site was inspected by police. Postmortem was conducted.

Accused were arrested. On information, lathis (sticks) were

recovered by police. After due investigation, chargesheet for

the offence u/s 302 and 302/34 IPC was filed against Kailash

and Sua before learned Chief Judicial Magistrate, Tonk. On

commitment, learned trial court framed charges for offence u/s

302 IPC against accused Kailash and u/s 302/34 IPC against

accused Sua. Both the accused denied the charges and sought

trial. Prosecution examined 10 witnesses and exhibited 22

documents. Accused were examined u/s 313 Cr.P.C. They

denied the evidence adduced by prosecution. Accused Sua

(3 of 10 )

[CRLA-150/1985]

stated that he was not at the place of occurrence at the time of

incident and he is innocent, whereas accused Kailash stated

that he was just 17 years old at that time. When he was

ousting cattle of Bajranga, the latter threw stones, which hurt

him. He has submitted transfer certificate (Ex.D-5) issued by

Government School, Kakod, District Tonk. No witness was

examined on behalf of defence. But, five documents were

exhibited. After hearing arguments, learned trial court passed

the judgment impugned and convicted and sentenced the

appellants, as stated hereinabove.

4.

Learned counsel for the appellant submitted that all

the eye witnesses Badri (PW-2), Ram Phool (PW-3) and Bhairu

Lal (PW-4) are close relatives of the deceased. Their evidence

is doubtful and is not in consonance with medical evidence.

The conviction based on testimony of such witnesses, cannot

be upheld. Prosecution has failed to prove the motive or any

previous enmity. All the injuries mentioned in Ex.P-7

postmortem report, found on the d