(1.)This jail appeal is directed against the judgment of the learned Sessions Judge, Jalore dated October 3, 1979 convicting the appellant Kaliya under Section 302, IPC and sentencing him to imprisonment for life with a fine of Rs. 1000/-, in default of the payment of fine to further undergo six months rigorous imprisonment.
(2.)The prosecution case is short and simple and briefly stated it is as follows. The deceased Sawada Meena aged about 37 years was living with his wife Mst. Sakuri (PW 2), son Goma (PW 3) and daughter Mst. Keni (PW 4) in village Iepur P.S. Nosara district Jalore. The appellant and his brother Patiya are the real nephews of the deceased Sawada. Their house is situate near that of the deceased-victim. There was a joint field of the deceased and the appellant's father, in which division was made by raising a fence therein. On May 28, 1979 i.e. a day preceding the occurrence, the appellant's brother Patiya (co-accused who was acquitted by the Court below) demolished this fence. At about 8.00 A.M. on May 29, 1979, the deceased was standing at the Falsa of his house while Mst. Sakuri, Goma and Mst. Keni were working in the pole of the house. The deceased asked Pati a as to why he had demolished the fence. On his saying so, Patiya and the appellant came running to the deceased Sawada. The appellant had an axe with him while Patiya had a lathi. The deceased reprimanded them for demolishing the fence. Thereupon the appellant and his brother Patiya started showering abuses on the deceased. The appellant struck a blow with his axe on the head of Sawada, Sawada fell down. The appellant struck another blow of his axe on the chest of Sawada. The appellant's brother Patiya struck a blow of his lathi on the back of Sawada. There was profuse bleeding from the wounds of Sawada and the clothes he was wearing got drenched with it. Mst. Sakuri and her children raised cries. The appellant and his brother took to heels. Mst. Sakuri and her children took Sawada in the Chowk of their house and placed him on a cot. Sawada did not survive, succumbed and passed away within no time. Mst. Sakuri got report EX.P 1 written from a teacher of the school of the village and delivered it to PW 1 Teemiya to be taken to the Police Station. Teemiya (PW 1) took it to Police Station, Nosara and presented it there at about 11.00 A.M. The police registered a case and the SHO Noor Mohammed Khan (PW 6) took up the investigation. He reached the site of the occurrence on the same day. He inspected the site and prepared the site plan. He also prepared the inquest report of the victim's dead body. He seized and sealed blood stained soil from the place of occurrence. The blood stained clothes of the deceased were also seized and sealed. The autopsy of the victim's dead body was conducted at about 5.45 P.M. on the same day by PW 8 Dr. Mathur, the then Medical Officer Incharge. Government Dispensary, Guda Balotan. He noticed the following injuries on the victim's dead body:
1. Incised wound, 19 cm. ? 1.3 cm. ? brain deep, vertical, extending from the lateral angle of right eye brow upwards and gradually turning medially and posteriorly over scalp including frontal and parietal region. There were some cut hair present in the wound. Skull bone was clearly visible in the wound. Bone was sharply cut in throughout the course of the wound. Brain tissue was visible from the cut part of the bone. The injury was caused by a sharp edged weapon.
2. Incised wound 5 cm. ? 1.4 cm. ? 0.5 cm. deep, vertical, on the right anterior side of chest, 4 cm. below and medially to the right side of the mammary gland. It was inflicted by a sharp edged weapon.
1. There was a leniar fracture of skull 19 cm. x 0.3 cm. throughout the course of the incised wound on the scalp and forehead including right side of frontal bone and right parietal bone of skull. The fracture ends of bones were deeply-stained with blood and not washed out with water.
2. All the brain membrances were out sharply throughout the course of the incised wound of scalp and fore-head. There was effusion of blood clots above and below the membrances of the brain were present.
(3.)Brain was also sharply cut throughout the wound of scalp and fore head. Depth of the cut is 0.5 cm. There was effusion of blood and clots around the cut of the brain. Very small pieces about 0.2 x 0.2 cm. of skull bones were present in the cut brain-tissue.
3. Dr. Mathur stated that all these injuries were caused by a sharp edged weapon like axe. He further stated that in his opinion, the cause of death of Sawada was coma due to fracture of skull and extensive injuries to brain. He further stated that both the injuries and particularly injuries No. 1 and consequent internal injury to the brain and fracture of skull were sufficient in the ordinary course of nature to cause death. The appellant and his brother Patiya were arrested. In consequence of the disclosure statement made by the appellant on May 30, 1979, during investigation, axe (EX. 7) was discovered, which is alleged to have been used by him in the commission of the offence. The appellant, at the time of his arrest, was wearing a shirt, on which blood stains were noticed. That shirt was also seized and sealed by the Investigating Officer. The various articles were sent for chemical examination to the State Forensic Science Laboratory, Rajasthan, Jaipur. Blood was detected on the clothes of the deceased, the shirt of the appellant and the axe recovered at his instance. On the completion of investigation, the police submitted a challan against the appellant and his brother Patiya in the Court of Munsif & Judicial Magistrate, Jalore, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under Section 302 against the appellant and a charge under Section 302/34, IPC against his brother Patiya, to which they pleaded not guilty and demanded the trial. According to them, they have been falsely implicated. They denied their complicity in the commission of the murder of Sawada. It was suggested by them during trial that the victim's wife Mst. Sakuri (PW 2) was having illicit intimacy with one Okhiya. It was Okhiya who had committed the murder of Sawada. They have been falsely substituted in place of the real culprit Okhiya. In support of this fact, its case, the prosecution examined eight witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found no incriminating material as against accused Patiya. Though his presence was taken as established and proved on the place of occurrence, it was not taken as proved that he had caused any injury to the deceased. The learned Sessions Judge found no material to extend Section 34, IPC to him. Patiya was consequently acquitted of the offence as he was charged with. The prosecution story as regards the appellant Kaliya was taken as substantially true and proved. He was, therefore, convicted and sentenced as mentioned at the very cut set. Aggrieved against his conviction and sentence, accused Kaliya has taken this appeal.