SHARMA, J. - (1.) THE appellant was indicted in Sessions Case No. 62/1995 before the learned Sessions Judge Alwar for having committed murder of Dilawar Singh. He was found guilty, convicted and sentenced under Section 302 IPC vide judgment dated November 1, 1996 to undergo imprisonment for life with fine of Rs. 500/-, in default to further undergo rigorous imprisonment for six months. THE said judgment of conviction has been assailed by the appellant in the instant appeal.
(2.) THE prosecution case can be compendiously stated thus - On June 11, 1995 at 10 p. m. a written report (Ex. P. 1) was lodged by the informant Preetam Singh e/o Dilawar Singh with the averments that earlier at 8 a. m. on that date there was a quarrel between Dilawar Singh and appellant Wariayam Singh over partition of the ancestral house. Wariayam Singh was hoard shouting that in case no final decision regarding partition was made, he would kill Dilawar Singh. After holding out this threat the appellant Wariayam Singh had gone away. THE informant or other members of his family did not believe that the appellant was really serious about the threat given out by him. On the same day around 7 p. m. . when Dilawar Singh was proceeding towards Railway Station and was in the process of passing in front of the T. B. Hospital, the appellant inflicted repeated knife blows as a result of which Dilawar Singh died at the spot. On the basis of the said written report the Police Station Aravali Vihar Alwar registered FIR No. (Ex. P. 2 ). for offence under Section 302 IPC and investigation commenced. Ex. P. 3 Is the sits inspection memo. Ex. P. 5 is the inquest report. Ex. P. 11 is the post-mortem report of the deceased, according to which, the cause of death was Injury to vital organ (heart ). Statements of witnesses wore recorded and the appellant was arrested. On the basis of the information (Ex. P. 17) a knife was recovered at the Instance of the appellant. On conclusion of investigation charge shoot was filed. In due course the case came up for trial before the learned Sessions Judge Alwar. Charge under Section 302 IPC was framed. THE appellant denied the charge and claimed trial. THE prosecution examined as many as 16 witnesses in support of its case. THEreafter in his explanation under Section 313 Cr. P. C. the appellant denied the allegations appearing in the prosecution evidence. He stated that the deceased had received Injuries In a road accident. Three witnesses were examined in defence. After hearing final submissions the learned trial court convicted and sentenced the appellant as indicated hereinabove. Mr. S. R. Bajwa, learned Senior Advocate canvassed that the learned trial judge has gravely erred in convicting and sentencing the appellant. On its own showing the prosecution admits that the impugned assault had taken place on a National Highway and at the relevant time the area was pulsating with human traffic, but not even a single independent eye witness was produced. Only interested and chance witness Mansha Singh was examined by the prosecution who had made material improvements upon his earlier version. The substantial part of its story which was disclosed in the FIR has been changed by the prosecution at the stage of trial. By applying the test of human probabilities, there appears strong possibility that no one had witnessed the actual circumstances and manner in which deceased had received the injuries. The contemporaneous behaviour of the alleged eye witness strongly betrays that he was not present when the deceased received the Impugned injuries. There are material contradictions between the statements of Pritam Singh (PW. 2) and Smt. Prakash (PW. 10 ). The two statements can not be reconciled. So far as the statement of Mansha Singh (PW. 1) is concerned, he holds strong animus against the appellant much before the present occurrence. The site plan renders no corroboration to the ocular testimony. In the alternative it was urged that even if it is held that the appellant was assailant then also the case does not travel beyond 304 Part I IPC. The incident took place all of sudden and without premeditation. The deceased must have said something to the appellant which has not come on record as independent witnesses wore not examined. Reliance was placed on Krishna Tiwari vs. State of Bihar (1 ). Per contra Mr. Rajendra Yadav learned P. P. supported the impugned judgment of trial Judge and contended that in the morning the appellant had given threat to kill Dilawar Singh. and In the evening at 7 p. m. he had gone to the spot with full preparation having knife in his pocket and on seeing Dilawar Singh, he went down from the tempo and inflicted knife blow on the left side of the chest of Dilawar Singh and repeated the blow. Mansha Singh's presence at the place of occurrence in quits natural and his testimony is corroborated by the extra-judicial confession of the appellant. The incident did not take place all of sudden. The appellant committed murder of Dilawar Singh with premeditation and he has rightly been convicted by the learned trial judge. We have given our anxious consideration to the rival submissions and carefully perused the record. The case of the prosecution is mainly based on the eye witness account of witness Mansha Singh (PW. 1 ). This evidence Is sought to be corroborated by Prakash Kaur (PW. 10) and Banno Kaur (PW. 11) before whom the appellant had allegedly confessed that he killed Dilwar Singh. Then comes the testimony of Medical Jurist Dr. Raj Kumar Mishra (PW. 8) and investigating officer Om Prakash (PW. 16 ).
(3.) MANSHA Singh PW. 1 in his deposition stated that around 7. 15 he was going towards Alwar Railway Station on a cycle, one tempo crossed him and slowed down. Wariayam Singh @ Pilla got down from the tempo. Dilawar Singh was coming on a cycle behind him. Wariayam Singh pushed Dilawar down from the cycle and inflicted knife blows on the left side of his chest and stomach. When he attempted to inflict third blow, MANSHA Singh caught hold of hie hand and he threatened MANSHA Singh for dire consequences. Thereafter Wariayam Singh went towards the village. MANSHA Singh immediately proceeded towards the house of Dilawar Singh and told his wife that Pilla inflicted two knife blows on the person of Dilawar. In the meanwhile Pilla also reached there and asked the wife of Dilawar that he made her widow. Preetam Singh PW. 2 deposed that around 7. 15 p. m. on being informed by Mansha Singh her mother told him that Wariayam Singh killed his father. Mansha Singh also intimated him that Wariayam murdered his father by inflicting two knife blows. Thereafter he along with Mansha Singh and Babu Singh went to the place of occurrence where he found the body of his father. They took the body to the Hospital where his father was declared dead. He Instituted written report Ex. P. 1. In his cross-examination he deposed that Dilwar Singh and father of Wariayam Singh wore real brothers and in the morning of the day of occurrence, Wariayam threatened his father Dilawar to commit his murder. Parmanand PW. 3 stated that on the day of the occurrence Wariayam Singh came to him and told him that he committed the murder of his friend infront of the T. B. Hospital. Jumma Singh PW. 4 is the motbir of seizure memo of blood smeared soil. Ranjit Singh PW. 5 put his signatures on the written report Ex. P. 1. Dr. Raj Kumar Mishra P. W. 6 conducted the post mortem of the deadbody of Dilawar Singh and stated that Dilawar Singh sustained two antemortem injuries as under: 1) Incised wound on loft side Nipple 1-1/4" x 1/4". 2) Incised wound on left upper side of abdomen 1-1/4" x 1/4" x muscle deep elliptical in shape. In his opinion cause of death was due to injury to vital organ (heart ). Jagdish Prasad PW. 7 was the constable in the Police Station Aravali Vihar and h e carried five sealed packets to FSL. ;