SHARMA, J. - (1.) THE appellant was indicted before the learned Additional Sessions Judge, Hindaun City in Sessions Case No. 13/1997 for having committed murder of Ramjan vide judgment dated January 22, 1999. He was convicted and sentenced under Sec. 302 IPC to suffer life imprisonment and fine of Rs. 500/- in default to further suffer one month simple imprisonment. Against the said judgment present action for filing instant appeal has been resorted to by the appellant.
(2.) ON the basis of Parcha Bayan of injured Ramjan (since deceased) recorded on January 9, 1997, FIR No. 32/97 came to be registered at Police Station Hindaun City against the appellant and three others. It was interalia stated in the Parcha Bayan that on that day around 9. 00 a. m. while Ramjan was standing outside his residential house the appellant and three others namely Battu, Hussain and Pintu came to the spot and appellant inflicted injury with Santoor (a cutting instrument) on his head which resulted in profused bleeding. Ramjan was removed to Hospital by Babu and Fakira. Initially a case under Section 307 read with section 34 IPC was registered but after the death of Ramjan on January 21, 1997 the case was converted to section 302 IPC. Autopsy on the dead body of Ramjan was conducted and other necessary memos were drawn. The statements of the witnesses under section 161 Cr. P. C. were recorded. The appellant and other accused persons were arrested. At the instance of the appellant Santoor was recovered. ON conclusion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Hindaun City. Charge under section 302 IPC was framed against the appellant who denied the charge and claimed to be tried. As many as 13 witnesses were examined in support of the prosecution case. In the statement recorded under section 313 Cr. P. C. the appellant claimed innocence. ONe witness was examined in defence. The learned trial Court on hearing final submissions acquitted Hussain, Battu and Pintu but convicted and sentenced the appellant as indicated hereinabove. Mr. S. R. Bajwa, learned Senior Counsel vehemently criticised the impugned judgment and canvassed that no offence as alleged is made out against the appellant from the material on record. While appreciating the evidence the learned trial court did not keep in view the two cardinal principles; that the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. It is further urged that Parcha Bayan Ex. P. 13 was recorded by Rameshwar Prasad ASI (PW. 11) in utter violation of the provisions of Rule 6. 22 of the Rajasthan Police Rules. No plausible or reasonable explanation was given by Rameshwar Prasad as to why the dying declaration was not got recorded by a Judicial Magistrate or Executive Magistrate despite the fact that the residential premises of the Magistrate was just infront of the hospital where the injured Ramjan was admitted. The learned counsel further contended that the injury on the person of Ramjan was examined by Dr. Shri Mohan Meena (PW. 9) vide Ex. P. 10 on a request made by the police at 9. 30 a. m. whereas the Parcha Bayan Ex. P. 13 was recorded at 10. 00 a. m. It is thus evident that the investigation had already commenced and the FIR is hit by section 162 Cr. P. C. It is next contended by Mr. Bajwa, learned counsel that Parcha Bayan (Ex. P. 13) suffers from many infirmities. It did not bear any endorsement of duty doctor that Ramjan was in a fit condition to give statement. Signatures of Ramjan on the Parcha Bayan were not obtained whereas Ramjan just half an hour back put his signatures on his injury report (Ex. P. 10 ). Learned counsel further urged that no reliance can be placed on the testimony of Fakira (PW. 3) who is close relative of the deceased and a chance witness. The prosecution also could not establish beyond reasonable doubt that the incident occurred at the same spot shown in the site plan. No blood was found at the alleged place of occurrence. The prosecution has failed to give any explanation as to why the independent witness from the vicinity was not associated. Mr. Bajwa, learned counsel alternatively submitted that having regard to the genesis of the occurrence and the surrounding circumstances and the fact that one blow with Santoor was given which happened to land on the head, it cannot be said with reasonable certainty that appellant intended to commit murder of deceased Ramjan or appellant intended to cause the particular injury. Reliance is placed on State of Rajasthan vs. Teja Ram (1 ).
(3.) PER contra Mr. S. S. Rathore learned Public Prosecutor and Mr. N. A. Naqvi, learned counsel for the complainant urged that Fakira is a reliable witness and the learned trial judge had rightly believed his evidence. The case of the appellant is covered under clause Thirdly of section 300 IPC. In support of their contentions the learned counsel cited Jai Prakash vs. State (2), and State of Karnataka vs. Vedanayagam We have reflected over the rival submissions and scanned the record. On a close scrutiny of Injury report (Ex. P. 10) of Ramjan it appears that on the request of Police Station Hindaun City, Dr. Shri Mohan Meena (PW. 9) examined the injury sustained by Ramjan on January 9, 1997 at 9. 30 a. m. As per the Injury report Ramjan had one incised wound measuring 5" x 1" x Bone separating whitish material bulging on right fronto Parietal region curved margin clear everted. Dr. Shri Mohan Meena put a note on the report thus: " Patient comes in conscious condition responding to command- Pulse 100 Mt. B. P. 120/80 MM Hg. respiration 20 Mt.-Pupils semidilated and reacting light. " A look at the Post Mortem report (Ex. P. 15) goes to show that the deceased had sustained wound over right Parito Temporal area of Right Cerebral hemisphere and Brain tissue was Oedematous and Gyasi and suki were partially fretted. The cause of death was coma as a result of antemortem head and brain injury. It is thus evident that the deceased had received severe injury as a result of which whitish material bulged and brain tissue was lying out of the would. In a similar situation their Lordships of the Supreme Court in State of Rajasthan vs. Teja Ram (supra), indicated that where medical evidence showing that brain function of the injured would have impaired due to brain injury, even if the injured was able to speak out something after sustaining such injuries, it is unsafe to place reliance on such dying declaration. ;