- (1.) THIS jail appeal is directed against the judgment of the learned Sessions Judge, Bhilwara dated 30. 11. 1988, whereby the appellant has been convicted and sentenced for the offences under Sec. 302 and 450 IPC.
(2.) THE. necessary facts to be noticed in short are that one Chhatarsingh (PW1) submitted a written report at the police station, Kareda to the effect that on the day before yesterday night, at about 4 A. M. , while Pannasingh (deceased) was sleeping in his house and the informant Chhatarsingh was sleeping in the Chhatri, at that time the accused Mohan Singh came armed with Kulhari (axe) and gave Kulhari blow on the head of Pannasingh with intention to kill him. It is also alleged that sister of Pannasingh was sleeping beside him. She raised cry 'mare re mare. ' His sister's son Tarasingh was also sleeping nearby the deceased. Accused Mohansingh gave a kulhari blow on the parietal region of Pannasingh. PW 8 Tarasingh (nephew of the deceased) has also seen the accused Mohansingh at that time. THE injured Pannasingh was, therefore, taken to Bhim Hospital, in a bullock cart. At Bheem Hospital, the Doctor refused to treat him as he was serious. THE injured was then taken to Beawar hospital. On this complaint a case was registered under Sec. 307 and 452, IPC. In Beawar hospital, Pannasingh died. The case was converted under Sec. 302 and 450, IPC. The post mortem was got conducted. The site plan was prepared. The blood stained cloths of the deceased were seized and sent for chemical examination to the forensic laboratory, Jaipur. The accused was arrested on 16. 6. 87. At the instance of the accused, blood stained Kulhari was recovered. That was seized and sent for FSL report. After due investigation, challan was put up in the court of Munsif & Judicial Magistrate, Gangapur, who in his turn, committed the case to the court of Sessions Judge, Bhilwara. The charges were framed under Sec. 302 and 449, IPC. The accused denied the charges and claimed for trial, as many as 17 witnesses were examined. The statement of the accused-appellant was recorded under Sec. 313 , Cr. P. C. Considering the entire material on record the learned Sessions Judge came to the conclusion that the accused-appellant is guilty for the offences under Sec. 302 and 450, IPC and sentenced him to undergo life imprisonment and 4 years RI respectively for the offences. Being dis-satisfied with the judgement of the learned Sessions Judge, Bhilwara, the accused preferred this appeal through Jail before this court. No counsel has been engaged by the accused-appellant, therefore, this Court by order dated 3. 7. 92 has appointed Mr. Anil Kumar Singh as Amicus curiae for the accused-appellant.
(3.) HEARD Mr. A. K. Singh, learned counsel for the appellant and Mr. S. K. Vyas, learned Public. Prosecutor. Mr. A. K. Singh, learned counsel for the appellant contended that presence of eye witnesses at the spot is not natural. The accused has been falsely implicated as there was enmity between the accused and the deceased. He further submitted that the eye witnesses and the informant are the interested witnesses therefore, no reliance can be placed for conviction on the testimony of these eye witnesses namely PW 2 Tulsi and PW 8 Tarasingh. He also submitted that the incident took place at 4 A. M. and at that time, the condition of the deceased Pannasingh was serious. Why he kept in his house till 12 AM that is for about 8 hours. If somebody has seen the incident he could be taken immediately to the Hospital, but in fact, nobody has seen the incident and the deceased was all alone in his house. Much after the incident somebody has seen the dead body and then they implicated the accused Mohansingh. Pw I Chhatarsingh (Brother of the deceased) has filed the written report at the police station, Kareda on the next day of the incident, stating therein, that the accused has inflicted Kulhari blows on the head of the deceased and that incident has been seen by Tulsi (Pw 2) and Tarasingh (Pw 8) and the informant. The deceased was taken to the Bhim hospital at about 1 AM as his condition was serious. As per advice the deceased Pannasingh was referred to the Beawar hospital for treatment where he expired. On the request of the police the post mortem was got conducted. On post mortem examination the doctor found the following injuries (1) Lacerated wound 3"x 1/2" bone deep left said of forehead exposing bone with clotted of blood. (2) Incised wound 2 1/2" x 1/4" bone deep above left eye under process of healing (3) Incised wound 1" x 1/4" x 1/4" cutting pinna of left ear (4) Black Eye Echymosis around right eye (5) Abrasion 3/4" x 1/4" on right foot with scab formation (6) Abrasion 3/4" x 3/4" on left medial melleolus with scab formation (7) Abrasion 1" x 3/4" left lateral melleolus with scab formation (8) Abrasion 1 1/2" x 3/4" on right wrist with scab formation (9) abrasion l"x 1/4" on left fore arm upper 1/3 rd. ;