S.S.VYAS, J. - (1.) THIS appeal by accused Manak Ram is directed against the judgment of the learned Sessions Judge, Jodhpur dated May 19, 1977, convicting the appellant Under Section 302, IPC and sentencing him to imprisonment for life.
(2.) BRIEFLY stated, the prosecution case is that the accused is a real nephew of the deceased -victim Pattu Ram. Pattu Ram was residing with his son PW 4 Pukha Ram in a Dhani situate nearby village Lohawat district Jodhpur. The accused had committed a theft in the house of Pukha Ram, for which he was prosecuted and sentenced to imprisonment. He was released from Sub Jail, Phalodi on 9 -11 -76 and met on that day to PW 6 Bhera Ram of Lohawat near the railway station, Phalodi. During talks with him, the accused told that he would finish Pattu Ram. Bhera Ram advised him not to do so. The accused then left the place. In the interventing night between 9 -11 -78 and 10 -11 -76, Pattu Ram and his son PW 4 Pukha Ram were sleeping in the Sal of their Dhani. In the mid -night, Pattu Ram went out side the Sal to look -after a goat. PW 4 Pukha Ram was also awakening at that time. Pattu Ram went out nude because of the superstition that the evil spirits do not affect a nude person. When Pattu Ram was tying the goat with the tag, the accused struck a blow with a plough on his head and the other on his right eye. PW 4 Pukha Ram raised cries and the accused proceeded towards him Pukha Ram closed the doors of the sal and confined himself therein. The accused challenged him to come out but Pukha Ram did not open the door. The accused struck some blows of plough on the shutters of the door but the door did not give way. In the early morning PW 3 Kesu Ram came there and saw the victim lying dead. Pukha Ram name out and told him that his father was done to death by the accused. PW 7 Asu Ram also came there and he too was told about the incident. Kesu Ram went to Police Station, Lohawat (nearly three miles away from the place of occurrence) and lodged written report Ex P 7 of the occurrence The police registered a case and proceeded with investigation. The site was inspected and the inquest report of the victim's dead -body was prepared. The post -mortem examination of the victim's dead body was performed at about 4.00 P.M. on 10 -11 -76 by Dr. M.M. Shankhla, the then Medical Officer Incharge, Rural Family Planning Centre, Lohawat. He found the following injuries on the victim's dead body: External (1) One bruise measuring l'x 1/2' on back (2) There was a lacerated wound measuring 2' x 1' x bone deep over right eye -brow. Frontal bone of the skull broken, brain matter was coming out (3) Bruise on left frontal eminence measuring 2'x 1' parallel to sagital suture. Internal (1) Frontal bone fractured into four pieces (2) Right parietal bone fractured into two pieces (3) Left parietal bone fractured into three pieces (4) Occipital bone fractured into two pieces In the opinion of the Doctor, the death had taken place due to cycnop caused by heavy impact of injury. The post mortem examination report is Ex. P 8. The accused was arrested on 14 -11 -76 at Bilara. Inconsequence of the information furnished by him whilst under police custody, the wooden plough used in the commission of the offence was recovered lying burried in his Dhani. The plough was seized and sealed and was sent for chemical examinaation. Human blood was found on it. After when the investigation was over, the police submitted a challan against the accused in the Court of Munsiff and Judicial Magistrate, Phalodi, who in his turn committed the case for trial to the Court of the Sessions Judge, Jodhpur. The learned Sessions framed a charge Under Section 302, IPC against the accused, to which he pleaded not guilty and claimed to be tried. He denied the whole prosecution story as a fabricated piece of concoction and claimed absolute innocence. During trial, the prosecution examined 10 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Sessions Judge held the charge duly proved against the accused. The accused was consequently convicted and sentenced, as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal. We have heard the learned counsel appearing for the accused and the learned Public Prosecutor. We have also examined the carefully record.
(3.) LEARNED counsel for the accused contended that the court below crept in an error in putting implicit faith on the testimony of the victim's son Pukha Ram (PW 4). It was argued that being a son of the victim, truth cannot be expected from him. The circumstances point -out that he was fast asleep when the occurrence took place. He was, therefore, not in a position to see as to who was the actual assailant of his father. It was also argued that according to him the accused gave various blows to the shutters of the door with the plough, but no signs of striking was found on the shutters of the door That renders his whole testimony unworthy of belief. We have given our anxious consideration to the contention and find no force in it True that he is a son of the deceased -victim but that hardly constitutes a valid reason to discard his testimony. There is no rule a of evidence that the witness who is a near relative of the victim should not be believed. Generally, relationship of witness to the deceased -victim is a guarantee of truth. A close relative would be last to screen the real culprit and substitute an innocent person in his place. The testimony of Pukha Ram (PW 4) cannot be discarded merely on the ground of relationship. What is required is that his testimony should be scrutinised carefully and closely.;