S.S.VYAS,J. - (1.) THIS is appeal by accused Roopa against the judgment of the learned Sessions Judge, Pratapgarh dated August 27, 1983 convicting the appellant Under Sections 447, 32/34 and 334, Part I, IPC and sentencing him to one month's rigorous imprisonment with a fine of Rs. 50/ -, under the first two counts and seven years rigorous imprisonment with a fine of Rs. 100/ - under the third count.
(2.) BRIEFLY stated, the prosecution case is that deceased -victim Kalu was the real brother of PW 4 Chatra. Chatra owed a sum of Rs. 40 to the accused -appellant. In the afternoon of 7 -11 -81, Chatra and Kalu were ploughing their field situate an Manja Borkheri P.S. Dholapani district Chittorgarh. The accused -appellant accompanied with his father, brother, mother, wife and brother's wife came there. He had an axe in his hand and the others had Lathies and stones. Accused Roopa asked Chatra to make the payment of the money he owed. Chatra told that he would soon make the payment. This did not satisfy the accused -appellant and bis companions. Accused Roopa struck a blow with his axe on the head of Kalu. Kalu fell down and there was profuse bleeding from his wound. The father and brother of the accused -appellant struck blows with Lathies to Chatra. Chatra raised cries. The accused -appellant and his companions thereupon went away. Chatra went to Police Station Dholapani and lodged report Ex. P 1 of the occurrence at about 10.30 AM on 8 -11 -81. The police registered a case under Sections 147, 447 and 336, IPC. The investigation ensured, Kalu was taken first to Government Dispensary, Chhoti Sadri and from there to Government Hospital, Chittorgarh where his injuries were examined by the Medical Jurist Dr. R.D. Bhatt (PW 7). The doctor found the following injuries: (1) Incised wound 4' x 0.3' x 1/2' on the left 8' forehead obliquely. (2) Swelling and bruise 2' x 1' on the right lower lid. He was admitted for treatment but he did not survive and passed -away at about 8.30 A.M. on 9 -11 -81. The postmortem examination of the victim's dead body was conducted by the Medical Jurist on 10 -11 -81. He found the following injuries: External: A stitched incise wound having six stitches Anti mortem on left side of forehead 4' x 1/2' x 1/2' shape obliquely -lower most end of wound is 1' above left eye -brow in middle. Right eye is swellon and blue lids. Enternal: Scalp is incised on left side of forehead exposing brain matter. There is a haemotoma present on left side in frontal region obliquely fracturing frontal bone extending from medial end of right orbit to left temporal region. In the opinion of doctor Bhatt, the cause of the victim's death was come due to injury to brain tissues. The postmortem examination report prepared by him is Ex. P. 7. Due to dean of Kalu the police added Section 302, IPC during investigation. The site was inspected and the blood smeared soil was taken into possession. Chatra produced the Lathi and axe to the Investi gating Officer, which the accused -appellant and his companions left at the place of occurrence while running away. On the completion of investigation, the police submitted a challan against the accused -appellant and five others in the Court of Munsif and Judicial Magistrate, Chhoti Sadri. The Magistrate committed the case for trial to the Court of Sessions Judge, Pratapgarh. The learned Sessions Judge framed charges under Sections 302, 148, 323 and 447 against accused Roopa and under Sections 323, 447, 148 and 302/149, IPC against the remaining five. The accused pleaded not guilty and faced the trial. During trial, the prosecution examined 15 witnesses and filed some documents. In defence, no evidence was led in. On the conclusion of trial, Mst. Nathuri and Mst. Sunder were acquitted. Veniya and Puriya were convicted under Sections 323 and 447 IPC and sentenced to one month's rigorous imprisonment with a fine of Rs. 50/ -under each count. They were also acquitted of the offences under Sections 148 and 302/149, IPC. Accused Roopa was convicted under Section 304 Part I, 447 and 323/34, IPC and was sentenced as mentioned at the very out -set. Aggrieved against his convictions and sentences, the accused appellant has taken this appeal. I have heard the learned Counsel appearing for the accused -appellant and the learned Public Prosecutor. I have also gone through the case file carefully.
(3.) IN assailing the conviction, the first contention raised by the learned counsel is that there was no reliable evidence to support the prosecution version that the accused -appellant inflicted blow of axe on the head of deceased victim Kalu. It was argued that the alleged eye witnesses PW 1 Lalki, P W 2 Hakri, PW 4 Chatra, PW 8 Rodki and PW 9 Mst. Nawli were the close relatives of the deceased -victim. They were naturally interested persons. The learned Judge committed an error in putting implicit faith on what they testified. It was further argued that PW 5 Babu, who is also alleged to have seen the occurrence, lent no support to the prosecution. In these circumstances, the case does not travel beyond the orbit of reasonable doubt The benefit of doubt should, therefore, go to the accusedappellant. In reply, the learned Public Prosecutor supported the view taken by the trial judge and contended that the evidence of the eye witnesses cannot be discarded merely due to their relationship with the deceased -victim. PW 5 Babu, though did not support the prosecution case, yet admitted the presence of the accused -appellant on the spot. I have taken the respective contentions into consideration.;