Abhai Kumar, J. - (1.) Heard Sri Rajiv Lochan Shukla, learned counsel for the appellant and the learned AGA for the State and perused the record.
(2.) This criminal appeal has been preferred against the judgment and order dated 16.4.1991 passed by Sessions Judge, Mathura in Session Trial No. 562 of 1987 (State Vs. Dauji alias Daudayal) whereby he convicted the appellant under Section 304 (1) IPC and sentencing him for 10 years rigorous imprisonment and a fine of Rs. 2000/- in default in payment of fine to further undergo for six months additional rigorous imprisonment. At the very outset on the basis of arguments put-forward by the learned counsel for the appellant and from the perusal of record it can be said that trial court has taken great pains in deciding the matter elaborately covering all the minute points and all the points put-forward by the defence side and this court is constraint to say that there is not much to be subtracted or added to the finding returned by the trial court. Before the trial court several minute points were also raised which were discussed by the trial court and all the points that were being raised before this Court by the counsel for the appellant were also considered by the trial court and all the defence is being taken aside by the trial court. Sworn of facts, some altercation took place between the son of the complainant Vijay Kumar and accused-appellant Dauji in regard to taking soft drink bottles to home by deceased from the shop of appellant and consequently appellant is said to have inflicted fatal injuries to the deceased. It has also come in the evidence that deceased also hit the appellant by a bottle by which bottle broken and pieces of glass were found on the spot. Complainant as well as his cousin Babu Lal saw the incident alongwith Kisso, although Kisso has not been produced before the trial court. Third eye-witness PW3 Suresh has also been produced who is said to be hawker and selling the food material at the given time whereas rest of the witnesses are formal in nature.
(3.) Certain facts can be said to be admitted facts in the present matter are to be incorporated initially. Deceased died due to injuries caused by a sharp edged weapon and out of nine injuries on the part of the deceased, eight were caused by the sharp edged weapon and from the opinion of doctor it can be inferred that same were inflicted by knife. Injury No. 9 is abrasion and not very material for the disposal of the present case and could have been caused due to friction when altercation took place between the appellant and deceased. Although, it has been accepted by the doctor PW-4 Sri R.K. Chaturvedi. Injury No. 1 could be caused by Javelin but it is also asserted by the doctor that injury could be of knife. Seeing the dimension of the Injury No. 1, it can very well be accepted that injury could have been caused by knife and result of stabbing. Place of incident is also said to be admitted and trial court has minutely given the facts regarding the place of incident. It has been categorically observed by the trial court that blood stained and plain soil was taken by the Investigating Officer, although it has not been shown in the site plan as to from where soil was taken. It is observation of the trial court that mere non-mentioning of place regarding the collection of soil in the site place, cannot be fatal and it is negligence on the part of the Investigating Officer and same cannot be basis for acquittal. Similarly, source of light has also not been shown in the site plan whereas as per witnesses, electricity was there at the place of incident, electricity pole was also there and light was also lit in the shops nearby. This is consistent statement of all the three eye-witnesses and witnesses are cross examined and trial court after considering all these points came to the conclusion that seeing the place of incident it can very well be accepted that there was light of electricity and mere non-mentioning of electricity pole or electricity light by the Investigating Officer in the site plan, cannot be said to be fatal and it can very well be said that ocular evidence is very clear on the point and omission of the Investigating Officer in this regard is of no help to the defence side. It is also argument of the learned counsel for the appellant that Investigating Officer also failed to locate the place from where eye-witnesses saw the incident. This argument is not wholly correct because it has been shown in the site plan by the Investigating Officer that witnesses were coming from the temple and way by which witnesses came on the spot is also being shown in the site plan and it cannot be said that from where witnesses saw the incident has not been shown in site plan. So far as the PW-3 is concerned, his location has not been shown by the Investigating Officer in the site plan but as has been observed by the trial court that consistent statement of PW-3 in regard to the incident is acceptable and his presence cannot be doubted merely on the fact that his location has not been shown in the site plan. Various points are being raised by the learned counsel for the appellant. Some of the grounds are similar those were taken by the defence side before the trial court and were considered by the trial court but certain new facts are also being put-forward by the learned counsel for the appellant and they are to be taken one by one. ;