Shivaraj V. Patil, J. - (1.)The prosecution case, in short, was that on 25-3-1995 at about 10.00 A.M. Om Parkash, the deceased, along with his father -ile Singh (PW_7) had gone to the bus stand of village Khatkar to buy some planks of wood from the shop of Satbir. Satbir and his brother Ram Chander (PW-8) were present at the shop. Ram Chander and -ile Singh were engaged in selecting planks in the shop; the accused Shamsher Singh carrying an axe came in from the street and gave three blows with axe on the head of Om Parkash killing him instantaneously; Satbir and Ram Chander tried to save Om Parkash; the accused ran away towards the fields; -ile Singh leaving the dead body at the spot, left for the police station; at the bus stand, he came across a police party headed by Sub-Inspector, Dharambir Singh (PW-13); PW-8 made his statement to PW-13 at 11.15 A.M. on the basis of which F. I. R. was registered in the police station Uchana at about 12.15 P.M.; the special report was delivered to the jurisdictional magistrate at 5.00 P.M. the same evening; the police officer visited the place of occurrence, made the necessary inquiries and sent the dead body for post-mortem examination; the appellant was arrested on 28-3-1995; he made disclosure statements in the presence of Satbir and PW-8 and on its basis, recovery of axe was made; the motive for the offence was said to be on account of a quarrel about 6/7 days earlier between Suresh, the cousin of the deceased and the accused Shamsher Singh.
(2.)The trial Court relying on the evidence of PW-7 and PW-8, the eye-witnesses, the evidence of PW-10 Suresh Kumar, PW-11 Dr. B. R. Kayat who conducted the post-mortem examination and evidence of PW-13, Sub-Inspector of Police, found the appellant guilty of the charge of offence of murder. The appellant challenged his conviction and sentence before the High Court. The High Court, on consideration of the material placed on record and the submissions made, concurring with the findings recorded by the trial Court affirmed the conviction and sentence passed against the appellant. hence, this appeal.
(3.)The learned senior counsel for the appellant urged that in view of conflict and inconsistency between the evidence of eye-witnesses and medical evidence, in the absence of direct motive between the appellant and the deceased, non-examination of another eye-witness Satbir and the interested testimony of eye-witnesses being related to the deceased, both the Courts committed serious error in convicting and sentencing the appellant. He drew our attention to the statements of PW-7 and PW-8 and the statement of doctor, to point out that PW-7 and PW-8 had stated that the appellant assaulted the deceased on his head with the axe using its sharp edge and that the doctor had specifically stated that the injuries sustained by the deceased could not have been caused by any sharp-edged weapon. In view of this specific evidence of the witnesses, the courts ought not to have relied on the evidence of the eye-witnesses. As to the motive, he submitted that in the incident alleged to have happened 6 or 7 days earlier leading to the quarrel between Suresh, the cousin of the deceased and the accused, the appellant was not present at that time and there was no direct conflict between the appellant and the deceased. Thus, the so-called motive did not support the case of the prosecution. When the deceased and his father PW-7 had gone to the shop of Satbir and when Satbir was very much present at the time of occurrence, his non examination was fatal to the case of the prosecution.