- (1.) THE prosecution, story, in brief, is that somewhere in January 1970, one Sohan save Rs. 110/- to P. W. 10 Moju to be handed over to Mahadeo towards part payment of his debt of Rs. 400/ -. Moju went to Mahadeo's house, but he could, not be found there. When Moju was returning home via Rampal's house, Radha Kishan and Rathoria (Rama Avtar) met him at about 8 P. M. Radha Kishan told Moju as to why he was flashing torch light. Moju denied to have done so. Soon after Rathoria caught hold of Moju. Radha Kishan took out his dagger and inflicted certain blows therewith to Moju 4 or 5 dagger blows were inflicted on his head. Moju attempted to take to his heels to save himself. He first tried to enter a Brahmin's house in the vicinity. Both Radha Kishan and Rathoria pursued him. They caught hold of him and dragged him. Radha Kishan wanted to inflict a dagger blow on his chest. But the same was averted as Moju had placed his hands thereon. The dagger blows fell on his hands. Moju raised brawl, but none came forward to his rescue. He was again beaten mercilessly. He was dragged upto Mahabeer's house and then to a field where he was covered with a "chaddar" and was left. Next day one Bhaguta Mina arrived at the field. On his query he told him that Radha Kishan and Rathoria had given beating to him. After sometime his brother Madan P. W. 3 also reached the spot. Moju informed him that Rathoria and Radha Kishan had beaten him on the preceding day. First information report of the occurrence (Ex. P/4) was lodged with the police station Sardar, Sikar, by Madan. The police took over investigation. Dr. Bhagwati Prasad Medical Jurist S. K. Hospital, Sikar examined Moju on January 18, 1970. He noticed the following injuries on his person: 1. Incised wound 1" x " on the right parietal region placed vertically. 2. Incised wound " x " x 1/8" on the middle of the scalp placed transversely; 3. Incised wound l" x " x " above the left eye-brow placed obliquely. 4. Incised wound 3" x " x bone deep on the right knee joint placed transversely: the pabella bone underneath this injury was cut; 5. Incised wound 2" x " x bone deep obliquely placed on the left pabella which was cut into two pieces; 6. Incised wound 1" x " x " on the front of the left leg in the middle transversely placed; 7. Incised wound 1" x " x " on the lateral side of the right thigh on the lower part transversely placed; 8. Incised wound 1" x " on the nose; the nose was hanging on the left side; 9. Incised wound " x " x " on the left parietal region placed obliquely: 10. Incised wound 2" x " x " on the back of the left hand below the thumb and index finger; 11. Incised wound 2" x " x bone deep on the back of the left hand above the root of the fingers; the proximal phalanges of the middle and index fingers were cut; 12. Incised wound 2" x " x bone deep on the back of the right hand above the roots of the fingers: the proximal phalanges of the right index finger was cut; 13. incised wound 2" x " x " on the front of the right les lower part: and 14. Incised wound 1" x " x " on the right ear on its pinna. Injuries Nos. 1, 2, 3, 6, 7, 9, 10, 13 and 14 were simple in nature and the rest were grievous. All the injuries were caused by a sharp-edged weapon. Their duration was 12 hours. The Doctor opined that "all the injuries combined could have caused death as a result of shock and haemorrhage. " After necessary investigation the police presented a challan to the court of Munsif-Magistrate, Sikar against accused Radha Kishan. Accused Rathoria alias Rama Avtar is alleged to have absconded, Preliminary inquiry in accordance with the provisions of Section 207-A Cr. P. C. was conducted by the said Munsif-Magistrate. He then committed accused Radha Kishan to the court of Additional Sessions J. Sikar to face trial under Sections 307 and 326, I. P. C. Accused Radha Kishan did not admit the guilt and claimed trial. In support of its case the prosecution examined 13 witnesses. In his statement recorded under Section 342 Cr. P. C. Moju (Radha Kishan) again denied the prosecution allegations. He examined two witnesses in his defence. The trial court, by its judgment, dated February 6, 1971, convicted him of the offence under Section 307 I. P. C. and sentenced him to five years' rigorous imprisonment. Radha Kishan appeals against that verdict.
(2.) THE contentions of learned Counsel for the appellant are: 1. that the first information report filed by Madan states that a Pharsi was used by two persons. Moju on the other hand, had stated before the committing court that a knife was the weapon of the offence. But before the trial court he said that the injuries were caused with a dagger: this incongruity is destructive: 2. that the weapon of the offence has not been recovered: this enfeebles the prosecution case; 3. that the trial court erroneously relied on the solitary testimony of injured Moju; 4. that the prosecution failed to produce independent witnesses of the locality and. therefore, adverse inference should be drawn against it; 5. that according to the prosecution evidence there were two assailants, It cannot, therefore, be inferred safely that all the injuries on the person of Moju were caused by the appellant alone; he has, therefore, wrongly been convicted under Section 307 I. P. C. 6. that the prosecution has also not established the motive for the crime. Learned Deputy Government Advocate has supported the judgment of the court below.
(3.) AS regards point No. I it may be stated that in the first information report (Ex. P/4) Madan stated that Radha Kishan and Rathoria had caused Pharsi blows to Moju. In the committing court's statement Moju introduced knife and before the trial court he said that accused Radha Kishan gave dagger injuries to him. First information report was lodged by Madan who had information from another. In such a case sometimes a fact gets omitted, which should have been mentioned and sometimes the facts are confused. In that view of the matter, no suspicion can be attached to such a statement because of this: vide State of Rajasthan v. Kartar Singh. The injured Moju had no doubt, said in the committing court's statement that knife was used by Radha Kishan but in the trial court he substituted a dagger. There is not much difference between a knife and a dagger in common parlance. Both have edged blades. When a man is assaulted and a number of injuries are inflicted with outrageous exhibition of intimidation and violence, the victim loses the balance of his mind and it would be difficult for him to judge precisely whether the weapon of offence was a knife or a dagger. Be that as it may the alleged discrepancy is of a minor character. The prosecution has succeeded in proving to the hilt that a sharp-edged weapon was used by Radha Kishan as a result of which Moju sustained not less than 14 incised injuries. The first point raised on behalf of the appellant, therefore, is of no substance.;