IMTIYAZ MURTAZA, J. - (1.) THIS jail appeal has been filed against the judgment and order dated 30.4.2004 whereby the appellant has been convicted under section 302 I.P.C. and sentenced to undergo im­prisonment for life and fine of Rs.10,000/-and in default of payment of fine further imprisonment for six months. Briefly stated according to the prose­cution case on 14.12.1999 informant's brother Hulasi had gone to answer the call of nature outside village and on account of enmity Vijai son of Ramdhani in order to kill his brother assaulted him by sword. His brother Hulasi son of Mathose sustained grievous injuries and his condition was serious. On raising alarm by Hulasi Jagdish Prachat Rai, Udhal reached there to rescue him and accused person leaving his brother ran away. On account of previous enmity his brother was assaulted by Vijay. While going away he also abused him and threat­ened to kill. Jagdish and Udhal and other family members carried injured to the po­lice station and lodged the report. Hulasi was medically examined on 14.12.1999 at 1.50 P.M.
(2.) THE injured subsequently on 24.12.1999 succumbed to his injuries and in the opinion of Doctor cause of death was due to Cardiac failure as a result of multi­ple injuries and its complication. The F.I.R. was registered on 14.12.1999 at 10.15 A.M. under sections 326, 504, 506 and 307 I.P.C.. The investigation was com­menced by S.I. Girish Kumar Verma. He prepared the site plan and recorded the statement of the witnesses. After the medi­cal examination Investigating Officer added section 325 I.P.C. also. Thereafter, S.I. Subhash Singh Gaur started the inves­tigation and after the death of Hulasi case was converted under section 302 I.P.C. Af­ter concluding the investigation he submit­ted charge-sheet under sections 302, 307, 326, 325, 504 and 506 I.P.C.. Case was committed to the Court of sessions and charge under section 302 I.P.C. was framed. The appellant claimed trial. The prosecution in order to prove its case exam­ined informant Devideen as P.W.I, P.W.2 Jagdish Singh, P.W.3 Subhash Singh Gaur (second I.O.), P.W.4 Dr. Ashok Kumar Paliwal examined injuries, P.W.5 Dr.Surendra Singh Chauhan conducted post-mortem examination, P.W.6 S.I. Girish Kumar Verma (first Investigating Officer). The case of the defence was of denial and appellant did not examine any witness in his defence but under section 313 Cr.P.C. he stated that he is innocent and has been falsely implicated in this case. It is further submitted that son of Hulasi abducted his wife and child and thereafter committed murder of his child and he had lodged the report against him, therefore, he has been falsely prosecuted on account of enmity. In order to appreciate the submissions of the Counsel for the appellant we have to examine evidence on record carefully. P.W.I Devideen deposed that occur­rence took place on 14.12.1999 at 8.30 A.M. when Hulasi had gone to answer natural call outside the village. Vijay was inimical with him and in order to kill him caused injuries by Dhariya (sword) and seriously injured him. Hearing the alarm raised by Hulasi Jagdish reached at the place of oc­currence and intervened and accused per­son ran away from the spot. He also stated that wife of accused has been taken away by Ram Naresh, son of his brother and on that account he was inimical. Injured Hu­lasi was brought to the police station with the assistance of villagers. Report was scribed by Indresh Singh. He proved the F.I.R. as Ex.Ka-4. He brought his brother in injured conditions at the police station and admitted in District Hospital, Etawah where his brother was medically examined. Thereafter, condition of his brother deterio­rated and he was referred to Gwaliar Hospital whereafter some time he suc­cumbed to his injuries, on 24.12.1999. P.W.2 Jagdish is also an eye-witness of the occurrence. He deposed that on the date of occurrence at about 8.30 A.M. Hu­lasi had gone to answer call of the nature in the field of Indra Pal. He was also sitting at a distance of 20-25 steps. Thereafter, he was returning. At that time he heard shrieks of Hulasi and he and Udal reached at the place of occurrence and challenged the ac­cused, who after causing injuries to Hulasi ran away towards northern side. While running away, he extended threats. He further deposed that prior to the occur­rence wife of accused Kiran was enticed away by the son of Hulasi and he had sol­emnized Court marriage in Bhind. On ac­count of this enmity accused had caused injuries to Hulasi. Subsequently, on account of these injuries Hulasi died in Gwaliar Hospital. P.W.3 S.I. Subhash Singh Gaur deposed that he had investigated the case and proved site plan Ex.Ka-3,which was pre­pared by earlier I.O. G.K. Verma. He also proved charge-sheet and chik F.I.R. Ex. Ka-4 and Ex. Ka.5. He also proved G. D. Entry No. 12, which is Ex.Ka-7, the inquest report and letter of Madhya Pradesh Police De­partment, which is Ex.10 and Ex.11. P.W.4 Dr. Ashok Kumar Paliwal had examined Hulasi and he noted following injuries: - 1. An incised wound 7 cm. x 1.5 cm. x bone deep over left side of skull 6 cm. Above left ear advised X-ray. 2. An incised wound 5 cm. x 2.5 cm. x bone deep over back of left elbow advised X-ray. 3. An incised wound 3x5 cm. x muscle deep over left forearm 2.5 cm. below injury No. 2. 4. An incised wound 5 cm. x 3cm x bone deep over left forearm. 3 cm. below injury No. 3 advised X-ray. 5. An incised wound 3 cm. x 5 cm. bone deep in a semi circular tash-ion over medial side of left forearm 6 cm. below injury No. 4 advised X-ray. 6. An incised wound 10 cm. x 8 cm. x bone deep '.....' shaped over medial side of left hand extending upto forearm at 4 cm. below injury No. 5 advised X-ray. 7. An incised wound 11 cm. x 3.5 cm. x deep upto the muscle of opposite side over back of right forearm with cut fracture of both bone fore­arm 5 cm. above right wrist Ad­vised X-ray. In his opinion only injury No. 7 was grievous in nature. Injury No. 3 was simple in nature and for remaining injuries he de­posed that all the injuries were caused by sharp edged weapon. P.W.5 Surendra Singh conducted the post-mortem examination on the deadbody of Hulasi. He proved post-mortem exami­nation report, Ex.Ka-9. P.W.6 S.I. Girish Kumar Verma is the Investigating Officer. He proved the recov­ery memo and blood stained earth, which is Ex.Ka-6. The Sessions Judge relying on the prosecution case convicted the appellant as above. Hence this appeal. We have heard Sri Rahul Mishra, ad­vocate, learned amicus curiae for the appel­lant and Sri Arunendra Singh, learned A.G.A. for the State.
(3.) THE Counsel for the appellant submitted that on account of previous enmity he has been falsely implicated in this case. The testimonies of the witnesses are not reliable and independent witnesses present at the time of occurrence have not been examined and lastly submitted that the Sessions Judge has wrongly convicted the appellant under section 302 I.P.C. The time and place of occurrence is not challenged. The testimony of P.W.1 and P.W.2 proves that occurrence took place at 8.30 a.m. when deceased had gone to re­turn the call of nature. The Investigating Officer collected blood from the place of occurrence and prepared recovery memo Ex.Ka6. The deceased was medically exam­ined in injured condition by Dr Ashok Ku­mar Paliwal P.W.4 on 14.12.99 at 1.50 p.m. and in his opinion injuries could be caused at 8.30 a.m. we are of the opinion that prosecution has proved time and place of the occurrence beyond reasonable doubt.;