S.S.VYAS,J. - (1.) THESE are two appeals by accused Surta (one through jail and the other repesented) against the judgment of the learned Additional Sessions Judge, Jodhpur dated July 31, 1974 convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life and a fine of Rs. 50/ -.
(2.) SUCCINCTLY stated, the prosecution case is that deceased -victim Mst. Jatna aged about 45 years was living in village Nimli district Jaisalmer. The accused is the real nephew of Mst. Jatna and is a resident of village Jhankali district Barmer. The distance between the two villages of six miles or so. Mst. Jatna had a field in Mauja Nimli which the accused used to till and cultivate on her behalf. In 1973, Mst. Janta leased out this field in cultivation to one Iedan Charan. This annoyed the accused. On 28 -8 -73, the accused came to village Nimli from his village and went to Mst Jatna. He asked her to cancel the lease and allow him to cultivate her field Mst. Jatna declined to do so. The accused started abusing her. Both of them came to the house of PW 1 Khumansingh. There also the accused abused Mst. Jatna. Mst. Jatna went away in the court yard of PW 3 Sawal Singh situate contiguous to the house of Khuman Singh. The accused followed her. He had an axe in his hand. He repeated his demand for field and Jatna again refused. Thereupon accused Surta struck a blow with his axe on the back of the neck of Mst. Jatna. Mst. Jatna fell down. Accused Surta struck one more blow on her neck with his axe. PW 5 Khumansingh who was standing a few paces away, challenged the accused. The accused then ran away taking the axe with him. PW 2 Jhandsingh, who was standing on a sand dune at some distance came there. He also saw the accused running away. There was profuse bleeding from the wounds of Mst. Janta. she did not survive and succumbed to the injuries soon thereafter. Jhandsingh stood near her dead body and Khumanshingh went to Sanwalingh (PW 3) to appraise him of the incident Sanwalsingh came at the scene of occurrence which was in his own court yard. Balwantsingh (PW 5) and Binjrajsingh (PW 4)were also contacted. Sanwalsingh and Binjrajsingh left in persuit of the accused. Balwant Singh went to Sarpanch Ratansingh and appraised him of the incident. Ratansingh drew up report Ex. P. 1 and gave it to Balwant Singh with directions to immediately go to Police Station. Balwantsingh reached Police Station, Sangar which is nearly 40 miles away from village Nimli, at about 6 -00 PM on 29 -8 -73 i.e. to say on the next day of occurrence and presented written report Ex. P. 1. The police registered a case and proceeded with investigation. It is alleged that Sanwalsingh and Binjrajsingh, who bad gone in search of the accused, caught him out side his village Jhankali. They brought him back to village Nimli in the same night and detained him till the arrival of police. The Station House Officer Anopsingh (PW 24) arrived at the spot on 30 -8 -73. He prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site plan. The blood stained clothes of the victim were seized and sealed. The post mortem examination of the victim's dead body was conducted by Dr. M.M. Bagri at about 4 00 PM on 30 -8 -73. He found the following injuries on the person of the deceased: (1) Incised wound 3 1/2 x 1 1/2 x 2' over the right side of the neck below cricoit over caited and over caited and over antrolateral aspect. Tailing could not be ascertained, deep vessels cut. Bone exposed but not cut. (2) Incised wound 3 1/2' x 1' bone deep over the posterior side and neck muscles cut and delacted. (3) Incised wound over the first phalanx of left thumb amputating the whole circumstance of thumb, except a skin tag on the dorse medial aspect. (4) Abrasion of 2' x 2' over the lateral aspect of the left leg. (5) Treachea and cusophages were cut. According to doctor Bagri, all the injuries were antimortem. In his opinion the cause of death was severe haemorrhage due to injury No. 1 was sufficient in the ordinary course of nature to cause the death. Injury No. 4 being an abrasion could be caused by the victim's fall. The accused was arrested. The axe, which he had with him, was seized and sealed. He was wearing a Dhoti at that time and it was also seized and sealed. The seized articles were sent for chemical examination. The clothes of the victim and the Dhoti of the accused were found stained with human blood. Blood was also found or, the axe but since the quantity of blood was found too small, it was sent for Serological examination. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Jaisalmer, who in his turn committed the case for trial. The case on transfer, came for trial before the learned Additional Sessions Judge, Jodhpur, who framed a charge under Secticn 202, IPC against the accused, to which he pleaded not guilty and faced the trial. Denouncing the whole prosecution story as a false and fabricated piece of concoction, the accused claimed absolute innocence. The defence put forward by the accused is that he was in his village Jhankali. Sanwal Singh and Binjraj Singh came on camel to him and told him that he a was immediately required in village Nimli as his aunt Mst Jatna was seriously ill. Berieving to be true what they stated, he came with them to village Nimli There he found Mst. Jatna lying dead in the court yard of Sanwal Singh. Later on, a false charge of murder was foisted on him by Khumansingh Sanwal Singh and Balwant Singh. On the conclusion of trial, the learned Sessions Judge found the charge duly established against the accused. Eventually, he was convicted and sentenced as mentioned at the very outset. Aggrieved against his conviction and sentence, the accused has taken this appeal. We have heard the learned counsel for the accused and the teamed Public Prosecutor. We have also gone through the case file carefully.
(3.) THERE is no room for doubt that the death of Mst. Jatna was homicidal in nature. The accused was convicted on two sets of evidence i.e., the direct evidence of PW 1 Khumansingh and PW 2 Jhandsingh and extra judicial confession alleged to have been made by the accused before PW 4 Binjrajsingh and others. Dr. Bagri was cross -examined but his opinion about the cause of death of Mst. Jatna could not be challenged. Before us also, learned Counsel appearing for the accused did not challenge the finding of the trial court that the death of Mst. Jatna was homicidal.;