ARORA, J. - (1.)THIS appeal is directed against the judgment dated March 27,1984, passed by the Sessions Judge, Jodhpur, by which the learned Sessions Judge convicted and sentenced the accused- appellant for the offence under Section 302 I. P. C.
(2.)ACCUSED Amra Ram was tried by the learned Sessions Judge, Jodhpur, for committing the murder of his wife Mst. Barju in his Dhani, which is situated in the Kankar of village Matora, in the intervening night between January 2 and 3, 1983.
The case of the prosecution, as unfolded in the First Information Report, which was lodged by PW 3 Manphoola Ram on January 3, 1983, at Police Station, Osia, is to the effect that on January 2, 1983, he had gone to village Matoda to the house of Ram Lal. Mst. Chhoti the mother-in-law of accused Amra Ram was, also, there at the house of Ram Lal. He took his meals at the house of Ram Lal and when he was returning to his own Dhani, Mst. Chhoti asked him that she will accompany him upto the Dhani of Mst. Barju. He along with Mst. Chhoti reached the house of Amra Ram at about 11. 00/12. 00 p. m. in the night and when they reached there, they heard the cries 'maare RE MAARE RE'. They entered in the house of accused Amra Ram and in the light of a Chimni, they saw that accused Amra Ram was sitting on the chest of Mst. Barju and was throttling her. Mst. Chhoti, also, came there and rescued Mst. Barju, but Mst. Barju died sometime thereafter and accused Amra Ram ran away. In the night, they remained sitting by the side of the dead-body of Mst. Barju and in the morning, Bhakha Ram and Khinya Ram were called by Mst. Chhoti and Manphoola Ram went to lodge the report of the incident. On the basis of this information, a case under Section 302 I. P. C. was registered against the accused at Police Station, Osia, and the police, after necessary investigation, presented the challan and the accused was tried by the learned Sessions Judge, Jodhpur, for the offence under Section 302 I. P. C.

The prosecution, in support of its case, examined ten witnesses. PW 1 Mst. Chhoti and PW 3 Manphoola Ram are the two eye-witnesses of the occurrence. PW 2 Amlu Ram is the brother-in-law of Mst. Chhoti, who went with Mst. Chhoti from his village to village Matoda at the residence of Ram Lal, and helped him in reaping the harvest. PW 4 Khinya Ram and PW 5 Gulaba Ram are the two neighbours, who are the Motbir witnesses to the recoveries. PW 7 Ratan Lal is the Police Constable, who took the sealed packets for F. S. L. examination to the Stale Forensic Science Laboratory, Jaipur. PW 8 is Mohan Lal Sarpanch, who is a Motbir witness to the recoveries of Ghagra and a stick. PW 9 Dr. Vijay Kumar was the Medical Officer posted at Osia, who conducted the autopsy on the dead body of Mst. Barju on January 4, 1983. PW 10 Samundra Singh is the Station House Officer, who on the relevant date, was posted at Police Station, Osia, recorded the First Information Report, conducted the investigation and presented the challan. Out of these ten witnesses, PW 3 Manphoola Ram, PW 4 Khinya Ram, PW 5 Gulaba Ram and PW 6 Ratan Lal did not support the prosecution case during the trial and they were declared hostile. The accused put the defence of alibi and produced DW 1 Bheema Ram. According to the defence version, the accused Amra Ram was not in the village on the fateful night and had gone to village Bap for labour purposes.

The case of the prosecution, therefore, rests upon the solitary evidence of PW 1 Mst. Chhoti Devi the eye-witness of the occurrence which is sought to be corroborated by the evidence of PW 2 Amlu Ram, PW 8 Mohan Lal Sarpanch and PW 9 Dr. Vijay Kumar. According to the statement of PW 1 Mst. Chhoti, she had gone alongwith her brother-in-law Amlu Ram (PW 2) on Wednesday of Migsar Sudi 14 (corresponding to December 29, 1982) and gave cloth like Odna, Kanchali, Kurti and Chappals to her daughter Mst. Barju, who was married to accused Amra Ram and was living in village Matoda. In the night of Wednesday, she stayed with her sister-in-law, namely, Mst. Manohari, who was married to Ram Lal Bishnoi. Next day, i. e. , on December 30, 1982, she, alongwith her brother-in-law Amlu Ram (PW 2), went to see Barju and handed over the clothes and Chappals to her, which she demanded from her mother in the fair of Srinathji. At that time she noticed that her daughter Mst. Barju had nothing even to eat.

On the next day, i. e. , on Friday, she again went to the house of her brother-in-law (Nandoi) Ram Lal Bishnoi and stayed there for two days, i. e. , on Friday and Saturday (corresponding to December 31, 1982 and January 1,1983 ). On January 1,1983, i. e. , on Saturday, her daughter Mst. Barju came to see her in the Dhani of Ram Lal Bishnoi and informed her that her husband has not brought anything for eating and even there is no water in the house. In the evening, Mangla Ram's daughter, with whom accused Amra Ram used to work, came there and informed her that Amra Ram has brought Bajri and water in the house, upon which she asked her daughter to go back to her house. At about 4. 00 p. m. , Mst. Barju went to her house. Thereafter her son-in-law (accused Amra Ram) came there and informed her that he had already brought water and Bajri.

(3.)THEREAFTER she requested her son-in-law Amra Ram to help her in the repairing of her huts, upon which Amra Ram told her that he would accompany her and help her in repairing the huts. The accused thereafter went to his house. Sometime thereafter, Manphoola Ram came there, who was searching for his camel. He stayed there for about two hours, took his meals and when he was going to his village, she requested him to leave her to the house of Amra Ram as she had an idea to spend the night with her daughter and in the morning, she alongwith her son-in-law Amra Ram intended to go to her village. In the night, when she, alongwith Manphoola Ram, reached near the Dhani of accused Amra Ram, they heard the cries 'maare RE MAARE RE' and when she entered inside the Dhani of Barju, she saw Amra Ram silting on the chest of Mst. Barju and was throttling her. Mst. Barju, at that lime, was lying on the ground. Mst. Chhoti and Manphoola Ram rescued Mst. Barju from accused Amra Ram. Amra Ram thereafter went out side the house, Mst. Barju died sometime thereafter. They stay in the hut in the night and in the next day morning. Manphoola Ram went to lodge the report at the Police Station and she went to the Dhani of Ram Lal and informed him that Mst. Barju has been murdered by accused Amra Ram and as such he should accompany her. THEREAFTER Amlu Ram and Ram Lal accompanied her Bhakra and Khinya Ram were, also, called. The police came there, prepared the site plan etc. , recovered the dead-body and conducted the investigation. A lengthy cross-examination has been conducted with this witness.
It is contended by the learned counsel for the appellant that this witness as well as PW 2 Amlu Ram have specifically stated that it was in the evening of Saturday (corresponding to January 1, 1983) that this witness went to the house of deceased Mst. Barju in the night at about 11. 00 p. m. and saw the accused sitting on the chest of Barju and throttling her. According to this witness, the incident, therefore, took place in the night intervening Saturday and Sunday (corresponding to January 1 and 2, 1983) while actually the incident had taken place in the intervening night between January 2 and 3, 1983. However, in the statement of a rustic villager who does not have the exactness of time and date, some minor discrepancy may arise, but this witness has given the narration from the day she reached village Matoda and according to this witness, on Migsar Sudi 14 (Wednesday) corresponding to December 29, 1982) she went to village Matoda and on account of Wednesday, she stayed at Ram Lal Bishnoi's house and did not go to the house of her daughter Mst. Barju as it was Wednesday.

On Thursday, she went to the house of her daughter Mst. Barju and stayed with her and came back to the house of Ram Lal on Friday and stayed with her sister-in-law on Friday and Saturday and in the evening of Saturday, i. e. , on January 1, 1983, Mst. Barju came to her and thereafter Mangla Ram as well as the accused Antra Ram came to see her, with whom she had a talk to get her huts repaired and in the evening Manphoola Ram came there, who came there in search of his camel and in the night of Saturdays, she went with Manphoola Ram, to the Dhani of accused Amra Ram, Therefore, it is not the case of the prosecution that on account of some misunderstanding she has given the dates regarding the date and time of incident. She has specifically stated that the incident took place on Saturday and Sunday's intervening night, which corresponds to January 1, 1983.