-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Daniya Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.409/1988 against the judgment dt.6.9.1988 passed by the Sessions Judge, Sirohi, in Sessions Case No.21/1987. Date of Judgment: July 02, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.B.S.Rathore, for the appellant. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment of the learned Sessions Judge, Sirohi dated 6.9.1988, whereby he convicted accused appellant Daniya for the offence u/s.304 part I IPC and sentenced him to undergo three years & six months' R.I. and a fine of Rs.250/- and in default, to further undergo three months' R.I. -2- 2. The charge against the accused appellant Daniya was that on 14.4.1987 in the night at about 8-9 PM, he killed Rajia on the way to village Moras. The report of the incident was lodged by Husa (PW 8) at Police Station, Rohida, District Sirohi in the morning of 15.4.1987 in which it was stated that his father Rajia went for purchasing `Bidi' at village Moras. Then, Heerka informed that Daniya had killed Rajia. He alongwith his relatives went on the spot and took the body after post mortem. The police investigated the case and submitted challan in the court of Judicial Magistrate, Abu Road, who committed the case to the Court of Sessions. Learned Sessions Judge framed charge u/s.302 IPC against accused Daniya, who pleaded not guilty. The prosecution examined 9 witnesses. The statement of the accused Daniya was recorded u/s.313 CrPC. He led no defence. After hearing the arguments, the learned trial Judge convicted accused appellant for the offence u/s.304 part I IPC instead of Sec.302 IPC and sentenced him as aforesaid. 3. Learned counsel for the accused appellant has submitted that it is a case of no evidence and on the basis of medical evidence and other evidence of relatives, who have not witnessed the scene of crime, the learned trial Judge has convicted the accused appellant, which deserves to be set aside. -3- 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. Having re-appreciated the evidence, it appears that finding of the learned trial Judge is totally based on hearsay evidence, supported by the testimony of Doctor Hitendra Kumar (PW 1). The medical evidence is not a conclusive evidence but it is corroborative evidence. The witnesses, who have been examined by the prosecution viz; Heera (PW 2), Pabu S/o Bharta (PW 3), Pabu S/o Raja (PW 4), Deva (PW 5) and Bharta (PW 6), have turned hostile. Smt.Chapli (PW 7) is the wife of deceased Rajia. She has stated that in the night, Heerka came to their house and told that Rajia has been killed by Daniya but Heerka, who has been examined as P.W.2, has turned hostile and denied his police statement Ex.P.2 and clearly stated in the court that he did not see Daniya killing Rajia. The testimony of Husa (PW 8), who lodged the F.I.R. Ex.P.6 similarly stated that Heerka told him that his father has been killed by Daniya but as stated above, Heerka has not stated that Rajia was killed by Daniya. Baludas (PW 9) is the investigating officer. This is all the evidence led by the prosecution, which cannot be said to be sufficient to convict the accused for the offence of culpable homicide. There is neither any recovery except `Kuwadia', the blood on which has not been found proved in the absence of -4- F.S.L. Report nor any other circumstantial evidence including the motive to connect the accused with the crime. The findings of the learned trial Judge are based on conjectures and surmises, which cannot be sustained. 6. Consequently, the appeal is allowed. The conviction and sentence recorded against the accused appellant Daniya for the offence u/s.304 part I IPC by the Sessions Judge, Sirohi, vide his judgment dt.6.9.1988 is set aside. Appellant is on bail. His bail bonds stand cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS