TIBREWAL, J. - (1.) THE appellant was prosecuted under Section 302 IPC in the Court of Additional District & Sessions Judge No. 2, Alwar, in Sessions Case No. 33/87. THE learned Additional Sessions Judge, after completion of the trial held the appellant guilty under Section 302 IPC for committing murder of Harbhajan vide judgment dated 28. 3. 89 and sentenced him life imprisonment and a fine of Rs. 100/ -. In case of default of payment of fine, the appellant was awarded further RI for one month. Feeling aggrieved against the aforesaid conviction and sentences, the appellant preferred an appeal through jail. Mr. Sajjan Singh Naruka was appointed Amicus Curiae by the Court.
(2.) THE incident took place on 28. 11. 77 at about 10 am. THE report of the incident was launched by Genda S/o Bhurelal P. S. Malakhera, on the same day at 5. 45 pm. THE prosecution case as given out in the report is that at about 10 am. Harbhajan S/o informant's brother Ram kishan had gone towards the jungle with his cattle. His daughter Ms. Moorti (PW 2) was also with him. At about 11, Ms. Moorti returned home weeping and informed that Harbhajan was murdered by the appellant Ram Kumar with a 'farsy' in the field of one Balia Sweeper. It was also stated in the report that the co-accused Chaju was also there with a 'lathi'. It was then stated in the report that Smt. Dhapa, Smt. Singari Goojri and Smt. Shyama Dhoban were working in the field of Balia at that time and they have seen this incident. On getting this information, the informant Genda went to the field of Balia where he found Harbhajan with injuries on his person. Harbhajan was alive, but unconscious. He also found Smt. Singari, Smt. Dhapa, Smt. Shyama, Ram-kishan, Rampal and Ramprasad present there. THE injured Harbhajan was taken to hospital for treatment in a camel cart, but he died in the way. THEreafter the informant went Alwar and lodged the report. After registration of the case, the police started investigation. During investigation, site-plan was prepared, blood stained earth and simple earth were taken from the place of incident. The post-mortem of the dead body was got conducted. After recording the statements of the witnesses and completing other formalities, a charge sheet was filed against the co- accused Chaju. The charge sheet against the appellant was also filed under Section 299 Cr. P. C. as he was absconding and could not be found by the police. Chaju was prosecuted in the Court of Additional Sessions Judge No. 2, Alwar and the learned Additional Sessions Judge, after completion of the trial, acquitted him vide judgment dated 30-4-79. Thereafter the appellant was arrested on 1-8-87, hence, a supplementary charge sheet was filed against him. After being committed, the appellant was tried in the Court of Additional Sessions Judge No. 2, Alwar. A charge under Section 302 IPC was framed against him by the learned Additional Sessions Judge. During the trial, prosecution examined as many as seven witnesses, namely, PW 1 Genda who is the informant and the real brother of the deceased, PW 2 Smt. Moorti daughter of Genda, who is an eye witness of the incident, PW 3 Bhagwan Sahai, who reached at the place of incident just after the incident and found the appellant Ram Kumar with a 'farsy' in his hand, PW 4 Smt. Shyama, another eye-witness of the incident, PW 5 Dr. Prahlad Swaroop Agarwal, who conducted the post-mortem of the dead body, PW 6 Kanwar Singh Sub-Inspector and PW 7 Kishan Singh S. H. O. P. S. Malakhera. The eye witnesses Ramkishan and Ms. Dhapa had died earlier, as such, their statements, which were recorded earlier, were taken on record of this case. The learned Trial Court after the completion of the trial, convicted and sentenced the appellant as stated above. The learned counsel for the appellant argued that the report was lodged after inordinate delay, as such, the prosecution case becomes highly doubtful. He further contended that there was enemity between the parties for a dispute with regard to a land and the appellant has been falsely implicated on account of the said enemity. He further argued that the witnesses have made improvements from their previous statements and there are material contradictions and inconsistencies in their statements. In the alternative it was also argued that the offence under Section 302 IPC is not made out against the appellant. We have gone through the statements of PW 2 Ms. Moorti and PW 4 Ms. Shyama, who were eye-witnesses of the incident. PW 3 Bhagwan Sahai is the witness who reached the spot after hearing the noise and found the accused appellant and the co-accused Chaju present there and appellant was having 'farsy' in his hand at that time. PW 1 Genda also came to the spot after getting information of assault of Harbhajan. In his statement he tried to make improvement that when he reached at the place of occurrence, he saw the accused appellant running, though this fact was not mentioned either in the FIR lodged by him or in his previous statement, Exhibit D/12. PW 2 Ms. Moorti is an eye witness of the incident. She has testified that she was going with her 'she buffalos' towards the river and Harbhajan was following him and Ms. Shyama PW 4, was going ahead. She further stated that at the very moment they reached the field of Balia Sweeper, then the accused appellant gave a farsy blow to Harbhajan while the co- accused remained standing with a 'lathi'. She further stated that Ms. Dhapa and Smt. Sangari had also witnessed the incident from the field of Balia. She further stated that when they tried to prevent Ram Kumar for assaulting Harbhajan, then he threatened them. She further stated that thereafter she came to her father Genda and intimated about the incident. She also gave out that Harbhajan was taken in a camel cart to the hospital but he died in the way. This witness has been cross-examined at length but nothing substantial has become to discredit her statement and the participation of the appellant in beating to the deceased Harbhajan. Some contradictions were pointed out to this witness between her statement recorded in the Court and the previous statement, but those contradictions are not so significant and such contradictions may come as the witness was examined after 10 years of the incident. Pw 3, Bhagwan Sahai was present in his field and after hearing the noise, he came to the place of occurrence and found the appellant with a 'farsy' and the co-accused Chaju with a 'lathi' in their hands. Both the persons then ran away towards the river. In cross-examination he stated that he told all these facts to Ramkishan, and Genda had gone to lodge the report. He further stated that he was also alongwith Harbhajan when he was being taken to hospital in a camel cart. he denied that he named Suraj and Ramsa also as assailants of Harbhajan. He further stated that after his arrival on the spot Ms. Moorti had gone to call her parents. Pw 4. Smt. Shyama Dhobi is the next eye witness of the incident. She has stated on oath that she was going with her she buffalos, Harbhajan and Ms. Moorti were following her. Ms. Moorti cried that Harbhajan has been cut, then she saw that the appellant Ram Kumar was inflicting 'farsy blows' on Harbhajan, further stated that Ram Kumar gave 'farsy blows' on the leg and back of Harbhajan.
(3.) PW 5, Dr. Prahlad Swaroop Agarwal conducted the post-mortem of the dead body. He found the following injuries on the person of the deceased: ckgjh 1 dvk gqvk ?kko nkfgus ?kqvus o Vkax ij tks iwjh rjg dkvdj flqz dqn [kky ls tqm+k Fkk] os blh ds lkfk rgen Hkh blh LFkku ij dvk gqvk Fkka 2 dvk gqvk ?kko 8x3&1@2 lseh- x ekal is'kh lhus ij cka;h rjq] ftlds lkfk cfu;ku o 'kvz Hkh dvh gqbz Fkha 3 dvk gqvk ?kko 4x1&3@4 lseh- x ekal is'kh nkfgus da/ks ds ihnsa 4 gsekvksek 4x3 lseh- nkfgus rjq flj ij van:uh % ckgjh pksv uecj 1 ds uhps nkfgus ?kqvus dh gfm~m;kw dvh gqbz Fkha ekal isf'k;ksa esa jdr tek gqvk Fkka The doctor further opined that the cause of death was due to excessive bleeding and shock on account of injury No. 1 and other injuries. In cross-examination, he stated that the depth of injury Nos. 2 and 3 have been written upto muscle deep and that both these injuries were simple in nature. The learned Trial Court has made a critical analysis of the aforesaid statements recorded in the Court. The learned Trial Court believed the statements of Mr. Moorti and Ms. Shyama Dhobi. In our view, the learned Trial Court has rightly appreciated the evidence and no error has been committed in placing reliance on the testimony of Ms. Moorti and Ms. Shyama. The names of these witnesses were disclosed immediately after the incident in the report lodged by Genda. The argument of the learned counsel for the appellant that the report was lodged at the P. S. after a long delay is not acceptable. It may be stated here that the incident took place at about 10 or 11 AM; The informant, Genda, came of the place of occurrence, then a camel cart was arranged. The injured was taken to the hospital but he died in the way. Thereafter the report was lodged at P. S. Malakhera which is about twelve miles from the place of occurrence. The report was lodged on the same day at 5. 45 PM and in our considered view, there was no delay in lodging the report. The story given in the report appears to be quite natural and believable. ;