- (1.) H. C. Mittal, J. Mohan has preferred this appeal from Jail against his conviction and sentence under Section 302/34 I. P. C. to life imprisonment passed on 22. 12. 83 by Sri S. B. L. Kackar, the then Sessions Judge, Saharanpur.
(2.) THE prosecution case in brief is that in the night between 26/27. 11. 1982 at about 2 a. m. in the first floor of Gaur Bhojnalays situated at Upper Road Hardwar P. W. 1 Om Prakasn and Ashok Kumar, owners of the building and Bhojnalaya along with their servants deceased Mohan Lal and P. W. 3 Tej Bahadur Thapa, their two boy servants were sleeping. This appellant Mohan along With Dilip who was earlier an employee of Om Prakash at the Bhojnalaya and had been removed from service about 3-4 months prior to the incident, had entered the room after unbolting a window and attacked the deceased Mohan Lal with knives. On the cries of the deceased the witnesses got up and succeeded in apprehending the present appellant Mohan on the spot along with the blood stained knife, while his companion Dilip managed to make good his escape. Mohan Lal injured 'was immediately sent to the hospital in a Car where his injuries were examined by P. W. 4 Dr. M. S. Kunwar at 2. 20 a. m. who noted the following two injuries, vide injury report (Ex. Ka - 3 ). 1. Stabbed wound 2 cm x 0. 5 cm x 2. 5 cm deep on the left side chest, 16 cm below the left axilla, surgical emphysema present around the wound. X-ray was advised and the wound was kept under observation. Bleeding was present. 2. Stabbed wound 2. 2 cm x 0. 5 cm x 3 cm deep, bleeding present on the back of left side, 12 cm below the left shoulder THE injury was kept under observation. Ex. Ka - 1 written report of the occur rence was submitted at P. S. , Hardwar at 3. 40 in the night, on the basis of which case was registered under Section 307/452 I. P. C. and 25, Arms Act. Investigation of the case was entrusted to S. I. Brijendra Singh (P. W. 6 ). On 30. 11. 82 Mohan Lal deceased died in the hospital. Thereafter the case was converted under Section 302 from 307 I. P. C. The Investigating Officer after preparing inquest report sent the dead body for post mortem which was conducted by Dr. B. K. Jaju on 1. 12. 82 at 10 a. m. In the opinion of the Doctor death was caused due to hae morrhage on account of the ante-mortem injuries. In the post mortem report no doubt six wounds wejre noted but it is clear that the four wounds would have been made while the deceased was operated upon for the treatment in the hospital. , Dilip could not be apprehended hence after completion of the -investigation accused was charge sheeted and committed and tried under Sec. 302 I. P. C. To prove its case the prosecution in all examined ten witnesses, of whom two are the eye witnesses, P. W. 1 Om Prakash iis the owner of Gaur Bhojnalaya, the deceased was his employee. p. W. 3 Tej Bahadur Thapa is" the other boy servant of P. W. 1, P. W. 2 Dr. B. K. Jaju had done the post mortem. P. W. 4 Dr. M. S. Kunwar had examined the injuries of the deceased immediately after the occurrence at 2. 20 a. m. in the night. The remaining are formal witnesses.
(3.) THE version of the accused has been of false implication. He did not adduce any evidence in defence. THE learned Sessions Judge had also made a local inspection of the scene of occurrence and after considera tion of the evidence on record he convicted and sentenced the appellant as above. This appeal has been preferred from Jail and on behalf of the appellant it was strenuously urged that the prosecution evidence was highly suspicious particularly because the presence of P. W. 1 Om Prakash the pro prietor of the hotel and the first informational that time in that room where the murder was committed was highly doubtful.;