MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 26. 2. 1997 passed by the Sessions Judge, Dungarpur convicting the appellant of offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-; in default of payment to further undergo one years rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that PW-7 Kaliya lodged a First Information Report Exhibit P-11 on 19. 7. 1996 at Police Station Varda stating inter alia that in the evening of 18. 7. 1996 his neighbour appellant Nana was cutting "thor boundary". The appellant gave 2-3 kulhari blows on the head of Phula as he objected his act of "cutting "thor boundary" of his house. The informant also stated that the incident was witnessed by his grandson Maniya and granddaughter Jassa. He also stated that Phula was taken to the hospital by Bhuri, Raman, Raghu etc. He succumbed to the injuries on the way. On this information, police registered a case for offence under Section 302 IPC and proceeded with the investigation. Police laid chargesheet against the appellant for offence under Section 302 IPC. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined ten witnesses and produced certain documents. The appellant in his statement under Section 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against him. The trial court on scrutiny of evidence produced by the prosecution found the charges levelled against the appellant proved. Accordingly, he convicted and sentenced the appellant in the manner noticed above. Challenging the conviction it is contended by the learned Amicus Curiae Mr. Shambhoo Singh that a careful scrutiny of the three eye witnesses namely PW-1 Mst. Narbada, PW-3 Ramanlal and PW-4 Mst. Blari shows that they are planted witnesses. They did not witnessed the incident. It is also submitted that the prosecution has failed to connect the kulhari alleged to have been recovered at the instance of the appellant as the report of Forensic Science Laboratory has not been produced to show that it was stained with human blood. On the other hand, learned Public Prosecutor supported the judgment of the trial court. We have scanned, scrutinised the prosecution evidence and considered the rival contentions. The defence has not disputed the fact that Phula died of homicidal death. PW-2 Dr. Rakesh Verma has stated that he conducted the autopsy of the dead body of Phula on 19. 7. 1996 and found eight injuries on his person. All the injuries were caused by sharp edged weapon. He has proved the Post Mortem Report Exhibit P-1. In his opinion, the cause of death was head injury. Pw-1 Mst. Narbada has stated that in the afternoon at about 4. 00 PM she was cutting thor boundary alongwith her husband. For a while she went inside the house for grinding floor. She was informed by her children that a quarrel has taken place between Nana and Phula. On hearing the news, she rushed to the spot. She found that appellant Nana was stricking kulhari blows on the head of her husband. Seeing her the appellant speed away. In the cross examination, she admitted that she proceeded to the place of incident 15 minutes after receiving the information from her children. She also admitted that she did not see the deceased and the accused quarrelling. In view of this submission, she cannot be considered as an eye witness.
(3.) PW-3 Ramanlal has stated that deceased Phula was his uncle's son. He stated that hearing the out cries of ladies, he reached to the spot. He further stated that Nana gave a kulhari blow on the head of Phula on account of which he fell down. He also stated that the wife of Phula was trying to rescue her husband. He further stated that Nana gave a kulhari blow to Narbada also. The criticism against this witness is that his name does not find place in the First Information Report and further that his part of statement that an injury was inflicted by Nana as well to Mst. Narbada does not find corroboration from any other material witnesses. Even Mst. Narbada has not stated that she tried to rescue her husband and while doing so, any injury was caused to her by Nana. Thus, in our opinion, he is a planted witness. No reliance can be placed on the testimony of this witness. Pw-4 Smt. Bhuri is the mother of the deceased Phula. She stated that at the time when Phula was planting "thor", appellant arrived armed with a kulhari. He gave two kulhari blows not he head of Phula. She further stated that the wife of Phula namely Pw-1 Narbada arrived to save her husband but the third blow was inflicted by Nana to Mst. Narbada. The criticism against this witness is that even Pw-1 Narbada, has not stated that any injury was caused to her by the appellant. There is no injury on the body of Mst. Narbada. The name of this witness does not find place in the First information Report. Thus, the statement of this witness does not inspire confidence. It appears that she is a planted witness. As regards the other incriminating evidence namely the recovery of kulhari, it is suffice to say that the prosecution has not produced the F. S. L. Report. In absence of the F. S. L. Report, the recovery of Kulhari does not connect the appellant with the crime. Thus, there is no evidence to connect the appellant with the alleged crime i. e. , murder of Phula. ;