KANTA BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment dated November 5,1985 passed by the Additional Sessions Judge, No. 2, Hanumangarh by which appellant Gurdeo Singh was convicted under section 302 I. P. C. and sentenced to imprisonment for life and a fine of Rs. 500/- in default of payment of fine to undergo six months R. I.
(2.) SUCCINCTLY narrated the prosecution case disclosed in the F. I. R. lodged by Mohd. Sadeek (P. W. I), brother of deceased Sharif Khan, at Police Station, Peelibanga at 1. 00 P. M. is that his brother Sharif Khan was visiting the house of Gurdeo Singh. Gurdeo Singh suspected Sharif Khan of having illicit relations with his wife. That day i. e. on August 5, 1984 at about 10. 00 A. M. he and his brother Sharif Khan were going to their field. Gurdeo Singh followed them and along with his brother proceeded ahead while talking with him. Mohd. Sadeek remained a littel behind. Gurdeo Singh inflicted 'kassi' blow on the back side of the neck of Sharif Khan. He fell down. Gurdeo Singh then inflicted another blow on his neck. On the informant raising cry, Gurdeo Singh ran away He went near his brother who was breathing slowely and after sometime died. He went to Usman Khan (P. W. 2) and told him the fact and along with him had come to the Police Station to lodge the report. The oral report was reduced into writing as Ex. P/1 by A. S. I. Jasbir Singh (P. W. 4) of Police Station Peelibanga. Dy. S. P. Mohan Singh (P. W. 7) who had gone for inspection of the Police Station Peelibanga on that day took the investigation in his charge and went to the site. He inspected the site and prepared the site plan Ex P/2 and site inspection memo Ex. P/8. At the instance of Mohd. Sadeek the panchayatnama of the dead body Ex. P/3 was prepared. The blood stained clothes were taken in possession. The postmortem examination of the dead body was conducted by Dr. Vijay Kumar (P. W. 6), Medical Officer, Peelibanga on the same day at 4. 00 P. M. at the site itself. The Doctor prepared the postmortem examination report Ex. P/7. He noted following injuries on the dead body: - 1. Incised wound 2. 5" x 0. 5" x 0. 2" on middle of occipital region of scalp horizontally directed. 2. Incised wound 5" x 1" x 2" just below angle of left law extending on neck over trachea and thyroid cartilage to right side of neck. Horizontally directed. Sterno mastoid. Muscles, canal artery, jugular vein cut, thyroid cartilage cut. According to the Doctor the duration of death was within 24 hours of the postmortem examination. Both the injuries were antemortem in nature and injury No. 2 was sufficient to cause death in the ordinary course of nature. In the opinion of the Doctor, the cause of death was due to injuries on vital organs (cartid artery, trachea) leading to haemorrhage and shock. Appellant Gurdeo Singh was arrested on August 8, 1984 by the Dy. S. P. Mohan Singh (P. W. 7) vide memo Ex. P/9. On August 9, 1984, appellant furnished information Ex. P/10 for getting recovered one 'kassi' from the 'chhapra'. Vide Ex. P/l1 on August 9, 1984, the Dy. S. P. recovered one 'kassi' from the western corner of the 'chhapra', in pursuance of the information furnished by the appellant. 'kassi' and the clothes of the deceased were sent for the Chemical Examination Ex. P/14 is the report received from the Serologist, Forensic Science Laboratory, Rajasthan, Jaipur. All the articles were found to be stained with 'b' group blood. Upon completion of necessary investigation charge-sheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Sri-Ganga-nagar. The case on committal reached the Court of Additional Sessions Judge, No. 2, Hanumangarh. The learned Judge charge-sheeted the appellant u/s. 302 I. P. C. and recorded his plea. On his denial of the indictment trial proceeded. In order to substantiate its case prosecution examined eight witnesses in ail. In his statement u/s. 313 of the Code of Criminal Procedure, the appellant denied the allegations levelled against him. One defence witness Mahavir Prasad was examined to state that in the year 1984 Janu Khan (P. W. 8) has cultivated the field of Fazal Deen, the grand father of the deceased. The learned Judge placed reliance on the evidence of Mohd. Sadeek (P. W. I) and Janu Khan (P. W. 8) and the recovery of 'kassi' and convicted and sentenced the appellant as stated above. We heard Mr. Doongar Singh, learned counsel for the appellant and Mr. N. S. Acharya, learned Public Prosecutor for the State. The learned counsel for the appellant has assailed the findings of the learned trial Judge on the ground that the two alleged eye witnesses viz. Mohd. Sadeek (P. W. I) and Janu Khan (P. W. 8) are interested in the deceased and despite their inconsistant, unreliable and unbelievable testimony the learned Judge has made their statements basis for conviction without there being any evidence of motive for the crime. The learned counsel for the appellant vehemently argued that the medical evidence does not support the statement of the eye witnesses regarding the time of occurence and as such the two witnesses could not be present at the site of occurrence and Mohd. Sadeek having seen the dead body of his brother lying on the way has falsely implicated the appellant. The recovery of the 'kassi' the alleged weapon of the crime, according to the learned counsel, should not have been taken help of by the learned trial Judge in holding the appellant guilty because the information was much after the date of the occurrence and the recovery was from a place accessible to any body.
(3.) THE learned Public Prosecutor justifying the findings of the learned trial Judge and controverting the arguments of the learned counsel for the appellant submitted that when the case is duly established by the two eye witnesses, the medical evidence has rightly not been attached importance by the learned trial Judge, because the medical evidence is based on the opinion of the Doctor which cannot always be said to be exact. THE learned Public Prosecutor submitted that the 'kassi' was recovered at the instance of the appellant and having the same group of blood as that on the clothes of the deceased has rightly been considered to be a strong circumstance against the appellant. The prosecution has led direct as well as circumstantial evidence. The direct evidence is of Mohd. Sadeek (P. W. 1) and Janu Khan (P. W. 8 ). The circumstantial evidence is recovery of 'kassi' in pursuance of the alleged infor mation furnished by the appellant. Mohd. Sadeek (P. W. 1) happens to be the brother of the decsased and has claimed to have accompanied him to the field that day. Janu Khan was claimed to have seen the occurrence from a distance. Mohd. Sadeek and Janu Khan both have denied the fact of the latter having ever cultivated the field of Fazal Deen, maternal grand father of Mohd. Sadeek and deceased Sharif Khan. Janu Khan has, while denying such a suggestion, stated that he was cultivating his own field though he did not know the number of the field. In his statement u/s. 313 of the Code of Criminal Procedure, the appellant as stated earlier, has stated that Janu Khan was cultivating the field of Fazal Deen and was therefore, interested in his grand son the deceased. To substantiate this contention Mahaveer Prasad Patwari has been examined as D. W. J. He, on the basis of the record, has stated that at village-Hansliya there is Murba No. 20/283 admeasuring 191/2 Bighas of land belonging to Fazal Deen which in the year 1984 was cultivate by Jaan Mohd. son of Maru Khan. Janu Khan (P. W. 8) happens to he the son of Maru Khan. This shows that in order to show Janu Khan an independent witness, he as well as Mohd. Sadeek have falsely stated about his having never cultivated the field and Fazal Deen, grand-father of the deceased and Mohd. Sadeek. Before appreciating the statement of Mohd. Sadeek (P. W. 1) the main witness in the case, we consider it proper to discuss the evidence of Janu Khan (P. W. 8 ). ;