S.S.BYAS, J. -
(1.)BY his judgment dated April 26, 1977 the learned Sessions Judge, Jodhpur convicted the accused Anant Ram Under Sections 304, Part Iand 450, IPC and sentenced him to ten years' rigorous imprisonment on the first and five years' like imprisonmnent on the second count. Both the sentences were directed to run concurrently. The accused has comeup in appeal to challenge his conviction and sentence.
(2.)BRIEFLY recalled, the fact and circumstances leading to the prosecution and conviction of the accused are that the deceased -victim Smt. Manjula was the wife of PW 1 Gokul Prasad. Gokul Prasad was employed in the Fire -brigade Unit of the Municipal Council, Jodhpur. The accused was also employed there in the same unit. The accused picked up friendship with Gokul Prasad and started visiting his house. Gokul Prasad started treating the accused his younger brother. At the relevent time in June, 1976 Gokul Prasad was living with his wife and children in Pratap Nagar Colony, Jodhpur. On June 17, 1976, Gokul Prasad left the house and went on duty to Siwanchi Gate, Jodhpur, at about 1.00 P.M. on that day the deceased -victim Manjula was sleeping on the floor of a room in her house along with her three minor children, none above the age of six years. All of a sudden she felt pressure on her chest and neck. She got awake and saw the accused on her chest. He wanted to take liberty with her which she resisted. The accused then pressed her neck and struck blows with a knife on her abdomen and lower parts. There was profuse bleeding from her wounds and the clothes she was wearing got -drenched with it. A few moments later, PW 3 Ku. Sharmila d/o PW 4 Smt. Meera, whose house is situate nearby, came there where Manjula was lying. She saw the victim in a pool of blood. Smt. Manjula told her what had happened with her. Ku. Sharmila went to her mother PW 4 Smt. Meera and apprised her of the situation. PW 2 Subash, who is the son of Smt. Meera (PW 4) was immediately sent to Gokul Prasad (PW 1). Gokul Prasad came to his house and saw Smt. Manjula lying on the floor of the room. She apprised him of the incident. Gokul Prasad immediately took her in a three -wheeler auto -rickshaw to M.G. Hospital, Jodhpur. She was admitted therein for treatment. It was then near about 4.00 P.M. At about 4.30 P.M., the Police Station, Soorsagar was informed on telephone about the injured condition of the victim and her being admitted in the hospital for treatment. The Station House Officer Pepsingh (PW 9) immediately reached the hospital at about 5.00 P.M. Smt. Manjula was then unconscious. She regained consciousness at about 7.00 P.M. The SHO Pepsingb recorded her statement Ex. P 1 in which she narrated the whole incident. The police treated Ex. P 1 as the First Infomation Report and registered a case thereunder. The victim's injuries were examined at about 3.40 P.M. on June 17, 1976 by the Medical Jurist Dr. R.K. Gehlot (PW 5). He noticed the following injuries on her person:
(1) Incised wound 1.5 cm. x 0.5 cm. and muscle deep 5.00 cm. to the left of umblious vertically placed (2) Incised wound 1.5 cm. x 0.5 cm. x skin deep about 4 cm. below and lateral to injury No. 1 obliquely placed (3) Abrasion 1 0 cm. x 0.5 cm. in the mid -line of neck just below the thyroid cartilage (4) Bruise 4.0 cm. x 1.6 cm. on the middle of the neck just above the thyroid cartilage (5) There was incised wound 'V' shaped, the lateral part was larger.
It was Situated just lateral to left labia majora in the upper 2/3rd region. The medial limb was measuring 4.5 cm. x 0.8 cm. and the lateral limb was measuring 5.7 cm. x 1.0 cm. The injury was bone deep.
Injuries No. 1,2 and 5 were opined to have been caused by some sharp edged Weapon while the remaining two by some blunt object. Injury No. 5 was designated as grievous and also as dangerous to life. On X -ray examination it revealed that there was fracture of left public bone.The report issued by him is Ex.P 7. The Investigating Officer visited the site and prepared the site plan, He also seized and sealed the blood stained clothes of the victim. The accused was arrested on June 18, 1976 vide arrest memo Ex - P 28. On June 20, 1976 the accused, whilst under police custody, gave information recorded in Ex. P 21 disclosing his desire to get the knife recovered. In consequence of the said information, knife was recovered from his house at his instance. It was seized and sealed. Despite surgical operation and medical treatment, Smt. Manjula did not survive and passed away in the night between 26th and 27th June, 1976 in the hospital. Section 302, IPC was added during the investigation. The autopsy of the victim's dead -body was conduced on June 27, 1976 by the Medical Jurist Dr. Prakash Dayal (PW 6). He noticed the following injuries:
(1) Bruise with abrasion 4 cm x 1 cm on the anterior aspect of neck in the thyroid region (2) A stitched wound 1.5 c.m. long on the abdomen on right side 5 c.m. from the mid line at the level of umblicus. It was muscle deep (3) Stitched wound 1.5 c.m. long on the abdomen 2 cm. from the mid -line and below injury No. 2 (4} Stitched wound 'V' shaped on the left side of the middle of levia. The peritonous had been perforating and there was peritenitis with black pigmentation, present in the pelvis and on the small intestines.
In the opinion of Dr. Prakash Dayal, the cause of death of the victim was shock as a result of peritenitis. The peritenitis was the result of injury No. 4. Injury No. 4, according to him, was sufficient in the ordinary course of nature to cause the death. The post mortem report issued by him is Ex. P 10. The blood stained clothes and the knife were sent for chemical examination. Human blood was detected on all of them. On the completion of investigation, the police submitted a challan against the accused in the Court of Additional Munsif and Judicial Magistrate (1), Jodhpur, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302 and 450, IPC against the accused, to which he pleaded not guilty and demanded the trial. Denying the whole prosecution Story as a false and fabricated piece of concoction. He claimed absolute innocence and alleged that he was in another village on the day of incident. In support of its case the prosecution examined 15 witnesses and filed some documents. In defence, the accused examined two witnesses to make out a plea of alibi. On the conclusion of trial, the learned Sessions Judge found no merit or turth in the defence of alibi put forward by the accused. He further held that Smt. Manjula was done to death by the accused. However, the offence made out was taken to be that Under Section 304 Part I instead of Section 302, IPC. The accused was consequently convicted under Sections 304 Part I and 450, IPC and was sentenced as mentioned at the very out set. Aggrieved against his conviction and sentence, the accused has taken this appeal.
(3.)I have heared Shri M.M. Singhvi, learned Counsel appearing for the appellant and Shri L.S. Udawat, learned Public Prosecutor. I have also gone through the case file carefully.