MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 5. 7. 1999 convicting the appellant Vijay kumar of offence under Sec. 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-; in default of payment to further undergo six months rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that on 04. 05. 1997 at about 6:30 PM PW-6 Ram Gopal, Incharge Police Station, Naya Shahar Bikaner received an anonymous telephonic call informing of unnatural death of a person in the hospital. He made an entry of the information in the rojnamcha and proceeded to P. B. M. Hospital, Bikaner. At about 7:30 PM he recorded the statement of PW-4 Sanjay Srivastava an eye witness of the incident vide Exhibit P-7. He stated that the alongwith his deceased brother Santosh had gone to purchase medicine for her mother who was suffering from headache. While they were returning, PW-1 Vinod also joined them. All the three proceeded towards their house on bicycle. When they reached infront of the house No. 03/427 and near the park abruptly the accused Vijay Parihar appeared from the opposite direction. He took out a knife from the pocket and plunged in the chest of his brother Santosh. He catch hold the accused Vijay Parihar and send PW-1 Vinod to call his father from residence. However, the appellant succeeded in getting released from his grip and ran away with the knife. There was profuse bleeding. Santosh was taken to the P. B. M Hospital where he was declared dead. Giving the background of the incident he stated that in the morning a verbal altercation took place between appellant and his deceased brother with respect to flying of kite. He intervened and separated them. While leaving he gave threat of life to Santosh. On the basis of the statement Exhibit P-7, the First Information Report Exhibit P-10 was registered at 8:15 PM for offence under Sec. 302 I. P. C. The police reached on the spot and prepared the site plan. The inquest was prepared and dead body was sent for post mortem. The appellant was arrested on 04. 05. 1997 vide Exhibit P-14. In pursuance of the information given by him, a blood stained knife and blood stained cloths were recovered. After usual investigation police laid chargesheet against the appellant for offence under Section 302 I. P. C. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 8 witnesses and produced certain documents. The appellant in his statement under Sec. 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against him. he has also stated that he did not know kite flying. He further stated that the deceased used to tease the sister of Suman Prakash and, therefore, the relations between the deceased and Suman Prakash were strain. He also stated that he has been falsely implicated on suspicion. He also pleaded the plea of alibi. The trial judge relying on the testimony of PW-4 Sanjay Srivastava corroborated by the prompt F. I. R. , medical evidence, recovery of blood stained knife and cloths found the charges levelled against the appellant proved. Accordingly, he convicted and sentenced him in the manner noticed above. Assailing the conviction, it is contended by Mr. M. L. Garg, learned counsel for the appellant that entire case against the appellant is false and fabricated. It is sub- mitted that the prosecution case has not been supported by the independent witnesses PW-1 Vinod and PW-3 Mohd. Shabir. The conviction on the basis of highly interested partisan witness PW-4 Sanjay Srivastava is not sustainable. The learned counsel has read before us the statement of PW-4 Sanjay Srivastava and pointed out certain infirmities. He has also critcised the evidence of recovery of knife and clots of the accused. It the alternate, it is submitted that it is a case of single injury and, therefore, it cannot be said that the appellant intended to commit the murder and as such the conviction against appellant cannot travel beyond Sec. 304 Part II I. P. C. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. We have scanned, scrutinised and evaluated the evidence on record exhaustively and considered the rival contentions. Before averting to the rival contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor, it would be useful to take conspectus of the prosecution evidence. Pw-1 Vinod was examined as an eye witness but he has not supported the prosecution case and has turned hostile. Pw-2 Prem Chand, is the father of the deceased Santosh. he has stated that on receiving the information that his son Santosh has been stabbed by the Vijay Parihar, he rushed to the sport alongwith Pw-3 Mohd. Shabir. When they reached on the spot, accused Vijay Parihar who was carrying a knife in his hand got released from the grip of his another son Sanjay and ran away. His son Santosh was lying unconscious. He also stated that both of his sons had gone to purchase medicine for his wife who was suffering from headache. He also stated that in the morning of fateful day a quarrel had taken place between Santosh and the appellant Vijay Parihar. The appellant had given a thereat of life to him. In the course of the day he was seen taking 3-4 rounds in front of his house. Pw-3 Mohd. Shabir has also not supported the prosecution case and as such he has been declared hostile. Pw-5 Hanuman Ram and Pw-7 Bherudas are formal police witnesses to establish that the articles seized, packed, remained intact till they were delivered to Forensic Science Laboratory. Pw-6 Ram Gopal is the Investigating Officer. He has given all the details of the investigation.
(3.) THE entire case rests on the testimony of PW-4 Sanjay Srivastava. He is the real brother of the deceased. he stated that on the fateful day at about 6:00 PM his mother complained of headache, therefore, he alongwith his deceased brother Santosh went to the medical store in Sector No. 2 for purchasing medicine. While returning on way PW-1 Vinod also joined them. When they reached at Sector No. 3 near the park in front of the house No. 3/427 appellant Vijay abruptly appeared from the opposite direction. he took out knife from the pocket and plunged in the chest of Santosh. he ran a little and fell down. He caught hold of accused and asked PW-1 Vinod to call his father. His father alongwith his mother and Mohd. Shabir arrived at the spot. THE appellant Vijay Kumar just gave him a jerk and got released from his grip. He ran away with the knife. He brother was lying unconscious. THEre was profuse bleeding. he along with his father took him to the hospital in a taxi. THE doctors declared him dead. Police also reached at the hospital and recorded his statement Exhibit P-7. THEre is a lengthy cross examination. We have carefully read the entire cross examination with the help of the learned counsel. Nothing material has been pointed out to discredit the testimony of this witness. His presence on the spot is natural. THEre is no reason why he should falsely implicate the appellant Vijay Kumar. THE testimony of this witness cannot be discarded only for the reason that he is real brother the deceased. His statement has been recorded within an hour of the incident. He has given all the details of the incident in Exhibit P-7. We have no doubt in our mind that he is a witness of sterling worth. Apart from the ocular evidence of PW-4 Sanjay Srivastava there are incriminating circumstances of recovery of blood stained knife and blood stained cloths of the appellant. He was arrested on 4. 5. 1997 vide Exhibit P-14. On 12. 5. 1997 he made a disclosure statement vide Exhibit P-15 leading to the recovery of blood stained knife vide Exhibit P-3. The police seized, sealed and packed the knife on the spot. The learned counsel has criticised the recovery on the ground that there is a discrepancy in the statement of Investigating Officer and the eye witness with respect to the exact time of the recovery of knife. The recovery memo Exhibit P-3 shows that it was made at about 6:00 PM. However, PW-4 Sanjay Srivastava has admitted in the cross examination that knife was recovered 20 minutes past to 6:30. In our opinion, it is not a material discrepancy on the basis of which the evidence of recovery can be discarded. It is also submitted that recovery had been made from an open place. The recovery memo shows that the knife was recovered from a concealed place. The knife was taken out after digging the earth. It was the appellant alone who had the special knowledge about the place of recovery and as such it cannot be said that the recovery has been made from an open place. The Apex Court in State of Himachal Pradesh vs. Jeet Singh (1), has held that any object can be concealed in places which are open or accessible to others. Giving the illustration the court observed that if the article is buried on the main roadside or if it is concealed, beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Thus, thee is no substance in the criticism made by the learned counsel with respect to the place of recovery. The prosecution has led the link evidence to show that the knife recovered which was packed on the spot remained intact till it was delivered to Forensic Science Laboratory. The F. S. L. Report Exhibit P-19 shows that the blood stains found on the knife were of human origin. The appellant has not given any explanation as to the presence of human blood on the knife. This is an important incriminating circumstance against the appellant. On 13. 05. 1997, appellant made a disclosure statement vide Exhibit P-16 before PW-6 Ram Gopal, Investigating Officer which led to a recovery of his blood stained cloths vide Exhibit P-4. They were seized, sealed and packed on the spot. The prosecution has led evidence to show that the packed remained intact till it was delivered to Forensic Science Laboratory. The F. S. L. Report Exhibit P-19 shows that blood stains on the knife were of human origin. The appellant has failed to give any explanation as to the presence of blood stains on his clots. This is an another important incrimination circumstance against the appellant. ;