GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 11. 12. 1999 passed by the learned Sessions Judge, Merta in Sessions Case No. 3/99, by which he convicted the accused appellant for the offence u/sec. 304 Part-II IPC and sentenced him to undergo seven years' rigorous imprisonment and to pay fine of Rs. 100/- in default of payment of fine, to further undergo SI for one months.
(2.) THE facts giving rise to this appeal, in short, are as follows:- On 27. 12. 1998 at about 9. 35 AM, PW 3 Jor Singh lodged a report Ex. P/13 before PW 13 Chandra Singh, S. H. O. , Police Station Gotan District Nagaur stating inter-alia that Jitendra Singh (hereinafter referred to as to deceased) was his nephew and the accused appellant has murdered him on the night of 26. 12. 1998 on account of some reasons. It was further stated in the report that on 26. 12. 1998 in the night, the deceased went to his field to see the crops of Jeera. It was further stated in the report that on that night at about 10. 30 PM, he was coming towards his Dhani on a motor-cycle from Jagdamba Transport and at that time, he saw accused appellant and one more person going towards Gotan village. THErefore, early that deceased was murdered by accused appellant and, therefore, he lodged this report. It was further stated in the report that since deceased had no father and elder brother, that is why he lodged this report. On this report, police registered the case and chalked out FIR Ex. P/17 and started investigation. During investigation, post mortem of the body of the deceased was got conducted by PW 14 Dr. Jassaram on 27. 12. 1998 and the post mortem report is Ex. P/23. On 27. 12. 1998, PW 13 Chandra Singh, SHO, Police Station Gotan arrested the accused appellant through Ex. P/11 and when accused appellant was arrested, Chola, which he was wearing at that time was stained with blood and it was also seized through Ex. P/12 by PW 13 Chandra Singh in presence of two motbirs, namely, PW 2 Ramchandra and PW 10 Murlidhar and that Chola was sealed and marked as article-2. During investigation, accused appellant gave information on 27. 12. 1998 to PW 13 Chandra Singh to the effect that he could get recovered Kuwadia and that information was reduced into writing in Ex. P/19 by PW 13 Chandra Singh and in pursuance of that information, accused appellant got recovered one Kuwadia in presence of two motbirs, namely, PW 8 Ram Niwas and PW 5 Ayub Khan and the same was sealed and marked as article-1 and the fared of seizure of Kuwadia is Ex. P/14. Both the articles were sent to FSL through letter Ex. P/16 and the report of the FSL is Ex. P/22, which shows that Chola article-2 and Kuwadia article-1 were stained with human blood. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate for the offence u/sec. 302 IPC and from where the case was committed to the Court of Session. On 16. 2. 1999, the learned Sessions Judge, Merta framed charge for the offence u/sec. 302 IPC against the accused appellant. THE charge was read over and explained to the accused appellant. THE accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 16 witnes- ses and got exhibited many documents. THEreafter, statement of the accused appellant u/s. 313 Cr. P. C. was recorded. No evidence was produced in defence by the accu- sed appellant. However, five documents were got exhibited by the accused appellant. After conclusion of trial, the learned Sessions Judge, Merta through his judgment and order dated 11. 12. 1999 convicted the accused appellant for the offence u/sec. 304 Part-II IPC in place of 302 IPC and sentenced him in the manner as indicated above placing reliance on the following facts and circumstances:- 1. That PW7 Gajendra Singh was found to be an eye witness in the present case. 2 That at the instance of the accused appellant, Kuwadia article-1 was got recovered and the same was found to be stained with human blood. 3. That chola Article-2, which was on the person of the accused appellant at the time of his arrest, was also found to be stained with human blood. 4. That just before the alleged incident, accused appellant was seen in the company of the deceased by PW 4 Jabar Singh and PW 9 Man Singh. Thus, there is evidence of last seen also. Aggrieved from the said judgment and order dated 11. 12. 1999 passed by the learned Sessions Judge, Merta, this appeal has been filed by the accused appellant. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:- 1. That PW 7 Gajendra Singh could not be regarded as an eye witness and he should be at the most a chance witness. 2. That statement of PW 7 Gajendra Singh was recorded on 31. 12. 1998, after five days and there is no satisfactory explanation for this delay and furthermore, explanation for this delay and furthermore, his presence is doubtful on the point that he did not inform to anybody and his conduct is unnatural one. Therefore, the learned Sessions Judge has wrongly placed reliance on the evidence of PW 7 Gajendra Singh. 3. That so-called recovery of Kuwadia article-1 is also doubtful as the fard of seizure of Kuwadia was prepared in Thana and it was recovered from open place and, therefore, it cannot be said that it was in conscious possession of the accused appellant. 4. That similarly recovery of Chola article-2 does not in any way lead to the conclusion that accused appellant committed the murder of deceased. 5. That evidence of last seen witnesses, namely, PW 4 Jabar Singh and PW 9 man Singh is also not believable and the learned Sessions Judge has wrongly placed reliance on them. Hence, it is argued that it is a case of doubtful nature and the accused appellant be given benefit of doubt and he be acquitted of the charge framed against him. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant supported the impugned judgment and order passed by the learned Sessions Judge, Merta. I have heard the learned counsel for the accused appellant, learned Public Prosecutor and the learned counsel for the complainant and perused the record of the case. Before proceeding further, the medical evidence has to be seen, which is found in the statement of Dr. Jassaram, PW 14.
(3.) PW 14 Dr. Jassaram has deposed in Court that on 27. 12. 1998 being a Medical Officer he conducted the post mortem of the dead body of the deceased and found the following injuries on his body:- 1. Incised wound on Nape of Neck (cut down) which is in length 12 inch, width 4 inch and depth 3 inch, with 3/4 cervical verbetrae cut down. Would extended from below left ear to below Rt. ear and Rt. ear labula was cut. 2. Lacerated would 2x2 inch on left fore arm below the Lt. elbow joint. 3. Punctured wound 1x1 inch below the ear. 4. Punctured would 1x1 inch above the Lt. clavicle bone. 5. M. Abrassions present with blood on both shoulders. He has further stated that injury no. 1 was sufficient in the ordinary course of nature to cause death. He has further state4d that injuries were ante mortem in nature. He has proved the post mortem report Ex. P/23. Thus, from the statement of PW 14 Dr. Jassaram, the fact that death of the deceased was homicidal is well proved. The next question which is to be seen in the present case is whether accused appellant has committed the murder of the deceased or not. For this, in the present case, there are two sets of evidence:- 1. direct evidence which is found in the statement of PW 7 Gajendra Singh. 2. Circumstantial evidence which includes:- (a) last seen evidence which is found in the statements of PW 4 Jabar Singh and PW 9 Man Singh; (b) recovery of Kuwadia article-1 at the instance of accused appellant; and (c) blood stained Chola article-2 belonging to the accused appellant. ;