KANTA BHATNAGAR, J. - (1.) APPELLANT Moti was tried for the offence under Section 302 I PC. by the learned Additional Sessions Judge, Sirohi. By the judgment dated 17-2-76 the learned Additional Sessions Judge held him guilty for the aforesaid offence and sentenced him to imprisonment for life on the first count and six months rigorous imprisonment for the second count with an order that both the sentences shall run concurrently. Being dissatisfied with his conviction and sentence, Moti has field this appeal in this Court.
(2.) SUCCINCTLY narrated the facts of the case giving rise to the trial of the appellant and the present appeal are as under. Deceased Poona resident of Phoolabai-ka-Kfaada, had borrowed gram-seed from the appellant. On 5-5-75 appellant went from his village Kundal to the village of the deceased Poona to recover the seed. He stayed there for the night. Next morning, he along with the deceased left for village Kachholi. Rupa (PW. 5) brother of the appellant Moti, also residing at the village Phoolabai-ka-Khada, accompanied the two for village Kachholi, as he had to purchase grain from there. Poona was having a tin of ghee which he wanted to sell at Kachholi Mandi. At Kachholi, Rupa purchased grain from Thukar Bad Singh and Poona sold the ghee at Kumhar-wada. There after, all the three went to hotel of P. W. 6 Baloo took tea there. They then went to the well of Vijay Singh (PW 4) and took bath The grain purchased by Rupa and the empty tin of ghee of Poona were left at the hotel of Saloo. It is alleged that the accused was having one lathi with iron ring with him at the time. It being late, they did not go to the hotel to take their articles, because the hotel used to be closed early in the evening. All the three then proceeded towards village Phoolabai-ka-Khada. In the way the appellant demanded his gram-seed from Poona. The appellant asked Poona to accompany him to his village and return his gram-seed. The deceased told him that he would go after 2 or 3 days because of his being busy at the time with some work at his well. The deceased also asked the appellant to return Rs, 100/- which he owed to him and told him that it will be only on his repaying Rs, 100/- that he would return the gram-seed. Rupa also told the appellant that when he would repay Rs. 100/- to Poona, the latter would return the seed. At this Moti inflicted lathi blow on the head of Rupa. Rupa fell down. Poona rushed to the rescue of Rupa. Moti inflicted two lathi blows to Poona one blow hit the parietal region and the other the temporal region. Poona fell down. Rupa came to the rescue of Poona but Moti had taken out the daggar at the time and warned Rupa of dire consequences in case he would go near. Being frightened Rupa went away to some distance. The appellant sat on the deceased and caused there blows with the dagger on his neck. On seeing this Rupa run away towards the house of Poona and informed Surma (P. W. 2) sun of Poona, about what had happened. Rupa along with Surma returned to the site. Meanwhile Moti had left the place. Poona was lying there. Poona was taken to the village and then to Sarup-ganj Primary Health Centre. He breathed his last in the way. Rupa went to police out post, Sarupganj PW 8 Nari Singh S. H. O. of Police Station Rohida was present there Rupa lodged the oral report with the S. H. O. which reduced into writing is Ex. P. 3 The report was sent to police station Rohida and the case was registered. The S. H. O. went to the Primary Health Centre, where the dead body of Poona was lying outside. He prepared the inquest report Ex. P. 6. The dead body was entrusted to the Doctor for post-mortem examination. Dr. Bhoor Singh (P. W. I) Medical Officer, Primary Health Centre, Sarupganj, conducted the autopsy over the dead body of Poona on 7-5-75 at 9. 30 p. m. and noted following injuries op his person: 1. Wounds-lacerated wounds 1-1/2" x 1/2" x Bone deep 1" infront of left parietal aminence in direction caused by blunt object. 2. Lacerated wound 2" x 1" Bona deep on left maxillary process oblique in direction caused by blunt object. Incised wound 1" x 1/2" x 2" on left side of neck at middle wedge shaped, posterior anterior direction (oblique) cutting the carotid artery, Juglar vein and part of sternomestiod muscle. Incised wound 3/4" 1-1/2 x 1-1/4" on left side of neck 1-1/4" before the injury No. 3. Wedge shaped, posterior-anterior direction (oblique) cutting the carotid artery Juglar weins and part of sternomestoid muscle. Incised wound l"xl" x2' on post fold of the left exilla. Wedge shaped posterior-anterior direction (oblique) 3. At the side of injury No. 1 the Doctor found communited Fracture of left parietal bone. The lungs, lever, Kidneys, etc were found to be pale. According to the Doctor all the injuries were ante-mortem in nature Injury No. 1 and 2 could be caused by a blunt object and injury No. 3,4 and 5 by some sharp edged weapon. In the opinion of the Doctor the death of Poona was caused due to shock as a result of haemorrhage and multiple injuries. He prepared the postmortem examination report Ex. P. 1. After post mortem examination, the S. H. O. took in possession the blood smeared clothes of the deceased. 4. On the same day Dr. Bhoor Singh examined Rupa (PW 5) and noted following injuries on his person: 1. Lacerated wound 1-1/2" x 1/3" skin deep. 2-1/2" shows the left eye brown 2-1/4 from mid-place of scalp on left side. 5. According to the Doctor the injury was simple and caused by blunt object. The duration of injury was held to be within 24 hours from the time of examination. The injury report is Ex. P. 2. The S. H. O. then went to the site and prepared the Site Plan Ex. P 11 and the Site Memo Ex. P. 6. The pieces of Lathi, turban, ring and pair of shoes were found at the site and were taken in possession vide memo Ex. P. 7.
(3.) ON 8-5 75 appellant Moti was arrested vide Memo Ex. P. 8. At the time of his arrest his clothes were found blood stained and were taken in possession vide Memo Ex P. 8. ON 18-5-75 while under custody the appellant furnish information Ex. P. 30 to S. H. O. Hari Singh for getting recovered one knife concealed at well near a water hut in the way to Bed!i. The information reduced into writing is Ex. P. 14. In pursuance of that information knife was recovered vide Memo Ex. P. 14. All the articles recovered during the course of investigation were sealed then and there. The blood stained articles were sent for the chemical examination. The report of the Chemical Examiner is Ex. P. 15 and that of the Serologist is Ex. P. 16. Upon completion of the necessary investigation, charge-sheet against the appellant was filed in the court of Munsif and Judicial Magistrate, Abu Road. The learned Magistrate finding a prima facie case triable by the court of Sessions, committed the appellant to the court of Additional Sessions Judge, Sirohi The learned Additional Sessions Judge, charge-sheeted the appellant for the aforesaid offences and on his denial for the indictment and claiming to be tried, proceeded with the trial. The prosecution examined nine witnesses in all. The appellant in his statement under Section 313 Cr. P. C. totally denied the allegations levelled against him and stated that his brother wanted to snatch his land and has for that reason falsely stated against him. No defence witness was examined. The learned trial Judge placed reliance on the prosecution evidence and passed the judgment under appeal. The appellant has filed the appeal through Superintendent, Central Jail, Jodhpur. As he was unrepresented, Miss Kamla Ojha was appointed Amicus Curiae to plead on his behalf. ;