- (1.) THIS appeal is directed against the judgment dated September 3, 1985, passed by the Additional Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge convicted and sentenced the accused for the offence under section 302 I. P. C.
(2.) APPELLANT Sukha Singh alias Sukhdeo Singh was tried by the learned Additional Sessions Judge No. 2, Hanumangarh, for the offence under Section 302 I. P. C. The case against the accused-appellant, as unfolded in the First Information Report Ex. P. 10, which was lodged at Police Station, Pilibanga, on June 3, 1984, at about 1. 30 a. m. by Santokh Singh S/o Rooda Singh (PW3), is that he and his father Rooda Singh 'were sleeping on their cots in front of the bakery-shop of his father situated in the premises of Gurudwara in Mandi Pilibanga. In the night, at about l. (X) a. m. , after hearing some noise, he woke up and saw accused Sukha Singh armed with Kulhari and after exclaiming that the enemy has been found and he will kill him, he inflicted injuries with Kulhari on the head of Rooda Singh and repeated the blows by Kulhari on the face and shoulder of Rooda Singh. The informant, on account of fear, kept himself lying. On receiving the injuries, his father Rooda Singh died and the accused, after inflicting injuries, ran away. Accused Sukha Singh had killed his father on account of old enmity. In pursuance of this First Information Report, a case under Section 302 I. P. C. was registered; the accused was arrested and the police, after necessary investigation, presented the challan against the accused. The learned Additional Sessions Judge, after trial, convicted the accused appellant under Section 302 I. P. C. and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine, further to undergo six months rigorous imprisonment. It is against this judgement dated September 3, 1985, passed by the learned Additional Sessions Judge No. 2, Hanumangarh, convicting and sentencing the accused-appellant that the present appeal has been filed. We have heard the learned counsel for the appellant and the learned Public Prosecutor. It is contended by the learned counsel for the appellant that the investigation in the present case is not fair and the First Information Report was not recorded at the time which has been shown but it was recorded after the investigation was over. The second contention, raised by the learned counsel for the appellant is that PW 3 Santokh Singh is not any eye witness of the occurrence and was not present at the time of the occurrence at the place of the incident and he was brought from his village where he used to reside and was produced as an eye witness to the occurrence. His further contention is that this witness, at the relevant time was a child of 13 years and there are every chance of tutoring of this witness and, therefore, on the basis of the testimony of this witness, no conviction can be based. Thirdly, it is contended by the learned counsel for the appellant that the prosecution has failed to prove that the seals of the articles, which were sent for chemical examination, remained intact through out, i. e. , since the recoveries till they were received in the State Forensic Science Laboratory, Jaipur. Lastly, it is contended that the specimen impression of the seal was not sent along with the sealed articles and, therefore, the recoveries made by the prosecution, cannot be of any help to the prosecution. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned lower Court and has submitted that the learned trial Court has properly appreciated the evidence on record and has rightly convicted and sentenced the accused-appellants. We have considered the rival submissions made by the learned counsel for the parties. Before considering the arguments, raised by the learned counsel for the parties we would first like to consider the nature of the evidence, produced by the prosecution.
(3.) THE prosecution, in support of its case, examined five witnesses and placed on record 16 documents. PW 1 Om Prakash is the Police Constable, who was posted at the Police Station, Pilibanga and who took the five sealed packets from the Malkhana of Police Station, Pilibanga to the State Forensic Science Laboratory, Jaipur. He has stated that the packets, which were taken by him, were duly sealed and were intact. He took the sample-packets on July 8,1984 and handed them over in the State Forensic Science Laboratory, Jaipur, on July 9, 1984. He has further stated that the sealed packets remained duly sealed and intact, since he received the same from the Malkhana till he handed over the same to the State Forensic Science Laboratory, Jaipur. Pw 2 Balwant Singh is a Motbir witness, who witnessed the arrest of the accused and the preparation of the site plan Ex. P. 4, Fard Surat Haal Lash Ex. P5, Panchnama of the dead body of Rooda Singh Ex. P. 6, recovery of the blood stained soil Ex. P. 7, the recovery of the clothes of deceased Rooda Singh Ex. P. 8 and the recovery of the Kulhari at the instance of the accused Ex. P. 9. P. W. 3 Santokh Singh is the eye witness of the occurrence, who has stated that he along with his father Rooda Singh was sleeping on the cot in the night out side the shop of his father and on account of some noise, he woke up and saw the accused armed with Kulhari standing near the cot of his father and, inflicted three injuries on the face and shoulders of his father. On receiving these injuries, his father died and he lodged the F. I. R. Ex. P. 10 at Police Station Pilibanga. He has, also, stated that there was some dispute between his father and the accused regarding the shop and on account of that bad-blood, the accused had killed his father. This witness was cross-examined by the accused and in the cross-examination, he has admitted that if there would have been no noise, then he could not have been awaken. He has, also, staled in the cross-examination that he lodged the report at the Police Station and the police look about two minutes in writing the report and thereafter the police came to the scene of the occurrence along with him and saw the dead body of his father. The police remained at the scene of the occurrence for about half an hour and thereafter went to the Police Station and he, alongwith the police party, went to the police station. Certain Memos were prepared at the Police Station which bear his thumb impressions. He has, also, stated that in the night, the F. I. R. was read over to him and thereafter he put his thumb impression. He has, also, admitted that on certain statements, he put his thumb impressions and after the Sun rise, he put the thumb impression on the paper at two places. He has, also, admitted that when the accused was inflicting the injuries with Kulhari to his father, he remained lying down on his cot and did not got up. He has, also, admitted that he identified the accused in the light of an electric bulb out side their shop. He has, also, admitted that the shop, out side which the murder of his father took place, is in the Gurudwara premises and his father was a Nihang and certain other Nihangs were, also, there inside the Gurudwara, but he did not inform any of them and lodged the report at the Police Station. He has, also, admitted that his cot was not seized by the police and no blood-stains were found on his cot. He has, also, admitted that he did not ascertain by touching the body of this father whether he was dead or not, and when the police came at the scene of the occurrence then it was confirmed that his father had died. He has denied the suggestion put forward by the defence that he was not at village Pilibanga but was at village Ahmedpura. ;