- (1.) Challenged is appellant's conviction for the offence of Section 302 IPC and awarded sentence of life imprisonment with fine Rs.500/-. Appeal No. 387/03 is preferred by jail, whereas appeal No.513/03 is representative appeal, both these appeals are being decided by this judgment.
(2.) Sequence of events, per prosecution, is that at about 2 A.M. in intervening night between August 14th & 15th, 02, appellant Sanwarmal s/o. Heeralal himself coming police station Pilibanga, orally told the then Incharge Sub-Inspector Kailashdan PW 7 that he and his brother Bhanwarlal came there at Mandi Pilibanga 10-12 years ago and both doing work of Halwai (confectioners), used to live at Shyam Misthan Bhandar and go for work as and when available, otherwise working and sleeping at above shop, subsequently also came at Pilibanga Bhanwarlal Nai (PW 4) and Nandu Panwar (deceased) of their village who learnt work from appellant and his brother and then as Nandu learnt work well he - feeding wrong to shop owner Ramkumar, got them (appellant and brother) expelled and also creating dispute between brothers he (Nandu) lived there (shop). Narrated that thereafter, appellant resided in rented room and not having any work he (appellant) on that night, at about 9.30 - 10.00 O'clock, (the appellant) went to Nandu for securing some work, where also was Bahnwarlal Nai and he told Nandu for giving some work to him but Nandu declining told him to go back so appellant walked annoyingly with a thinking that he (Nandu) who learnt work from them but created difference between him and brother and expelling him from shop, deprived him of job, and so thinking he (appellant) arrived near teen batti Chowk, where finding a stone lump, picked it up, then coming back to shop and as hotel was closed, set at nearby bench. Soon conversation between Nandu and Bhanwarlal, at roof of the shop, ceased and he thinking that they have slept and as time 12.00 - 12.30 he (appellant) with stone lump went upstairs at roof, where Nandu and Bhanwarlal both were sleeping, and he forcelly gave blow of stone at head of Nandu who giving a cry, "aa.... " became silent, also woke up Bhanwarlal so appellant coming down, hide himself and Bhanwarlal, when Nandu did not respond his calls went towards house of shop owner he (appellant) going again on roof uttered and tried to talk Nandu who not replied and was dead and he himself has come to the police station. PW 7 recording this statement and on it registered FIR No.280/02 Ex.P14 for the offence of Section 302 IPC, and making entry in roznamcha, proceeded to place of occurrence. PW 7, investigating and in presence of shop owner PW 1 and other witnesses (i) inspecting place of occurrence, prepared site memo and plan Ex.P1, Ex.P1A, examining the dead body, prepared memos Exs. P2 and P3 (ii) there at roof of the shop was spread blood, sample of which and also of some pieces of plain floor collected and sealed vide memos Exs. P4 and P5 and packets marked as A and B, (iii) collected and sealed blood stained shirt, baniyan and khes (baed sheet) at the time of post mortem of deceased packet marked as D and memo Ex.P6, (iv) appellant arrested on that very day at 11.10 A.M. and his worn pant and shirt seized and sealed packet E - memos are Exs. P15 and P7. (v) Per disclosure of appellant accused, Exs.P16 and at his instance, from below a small water tank (tanker) of cement having some blood stains, recovered and sealed blood stained stone of about 10 " x 6 " - packet marked as C memo prepared is Ex.P8 with site plan and descriptive memos Ex.P9 and 9A.
(3.) Post-mortem conducted by doctor medical officer PW 3 at 10.30 A.M. and prepared report Ex.P11. Deceased had one injury at head with fracture of temporal occipital bone which resulted in death. Above entire investigation finished on that very day. Keeping the packets of articles safe in malkhana, same were delivered intactly at FSL. After completing investigation, charge-sheet submitted. FSL examination report Ex.P19 describe that stone, clothes of deceased and sample collected contained human blood. Appellant is charged that he on August 15, 2002 at about 12.00 - 12.30 in night at the roof of shop Shyam Misthan Bhandar with intention of causing death of sleeping Nandu, inflicting a severe blow of stone at his head, caused his death - claimed trial.;