M. B. SHARMA, J. - (1.) THE learned Additional Sessions Judge, Neem-Ka-Thana has convicted the accused - appellant Pooran son of Ram Karan, by caste Meena, resident of Naya Bas, Neem-Ka-Thana, District Sikar under its judgment dated 28th August 1990 under Section 302 I. P. C. and for the said offence sentenced the accused-appellant to imprisonment for life. Being aggrieved against the aforesaid judgement, accused has preferred this appeal.
(2.) THE case relates to the alleged murder of one Ram Swaroop. THE house of the accused-appellant is adjacent to the house of the deceased, rather the 'gwadi' is common. THE case of the prosecution is that on 16th September 1987, deceased Ram Swaroop was sleeping in the 'guwadi' all alone and other members of the house had gone to the nearby school to see some play which was being played there. It was at about 12. 00 or 1. 00 a. m. in the night intervening 15-16th September 1987 when Smt. Surji PW-1 and others are said to have returned after seeing the play, the accused is said to have been seen giving blows with an axe to the deceased Ram Swaroop who was then sleeping on his cot. Suresh, Ratiram and others reached there and they along with Baluram went to the police station and informed about the incident. When Baluram arrived at the spot, the said incident was narrated by Smt. Surji and others to him. Baluram lodged the FIR as aforesaid. It will be seen that the distance of the police station from the place of occurrence is about 5 kms. THE report was lodged at about 6-7 a. m. The post-mortem of the dead-body of deceased Ram Swaroop was conducted by Dr. Prabhu Dayal, Medical Officer vide post-mortem report Ex. P-7. He found that there were as many as injuries on the body of the deceased and out of those eight injuries seven were incised wounds and one was abrasion. According to the doctor the deceased died due to shock due to Haemorrhage following the injuries and coma due to injury to brain and its compression and all injuries are described as anti-mortem in nature and deceased had died within 24 hours of the post-mortem examination. The accused was arrested and on his information u/s. 27 of the Evidence Act, an axe was recovered. The axe and other articles which were recovered were blood-stained, they were seized and were sent to the Forensic Science Laboratory vide Ex. P. 16 and so far as axe (Kulhada) is concerned, it was found that it was stained with human blood and the Group of blood was found 'o'. The same blood-group was found on blood smeared soil, Gudara, Baniyan, Chaddar which were recovered from the cot of the deceased. After investigation, a charge sheet was filed against the accused appellant and a charge was framed and the accused was pleaded not guilty to the charge claimed to be tried. The prosecution examined number of witnesses in all 19. Thereafter, the accused was examined u/s 313 Cr. P. C. to explain the circumstances appearing in the evidence of the prosecution witnesses. The accused stood on a bare plea of denial. In his statement u/s 313 Cr. P. C. the accused came out with a ease that he has been falsely implicated in the case and on the day of occurrence fee had gone to village Bodki to bring his sister and when he came back he was told that a report has been lodged in which the accused has not been named but lateron in collusion with police he was falsely implicated. The accused examined a few witnesses in defence. The learned Additional Sessions Judge placing reliance on the prosecution witnesses convicted and sentenced the accused as aforesaid.
(3.) THE case of the prosecution tests on the testimony of the witnesses who have professed to be eye witnesses as well as on the recovery of the blood stained axe. Learned counsel for the appellant contended that the story which has been stated by the witnesses in their statement in the court is different from one with which they came out of the FIR. Learned counsel for the accused-appellant further contended that none of the witness was or could be the eye witness of the occurrence. In the FIR the prosecution had come out with a case that the accused was simply seen running away with an axe from the 'guwadi'. But in the statement in the court each of them said that they had seen the accused causing injuries with an axe to the deceased Ram Swaroop. Learned counsel further contended that the reliance can be placed on their statements so far as each of them has stated that they had witnessed the accused inflicting injuries on the deceased with anex. So far as recovery of the alleged weapon is concerned, learned counsel contends that firstly it is not proved as to before whom the axe is said to have been recovered and secondly no evidence has been led by the prosecution that after the weapon of offence was seized from the possession of the accused, it was sealed and seals remained intact till the packet reached the office of the Director, Forensic Science Laboratory. He, therefore, contends that the accused cannot be connected with the weapon said to be found smeared with blood. Learned P. P. supported the judgment of the trial court. The first question is as to what was the time of occurrence. The question is what was the time of death of deceased. As per the case of the prosecution, as made out in the report Ex. P. 2 lodged by Baluram on 16th September 1987, it was about 12. 00 and 1. 00 a. m. in the night intervening 15-16th September 1987 that Smt. Surji PW 1 and others returned from the school after seeing the play which was being performed there. PW 1 Surji who is elder brother's wife of Ram Swaroop and was residing with him in the said house states that except the deceased all had gone to the school to see the play and she came back at about 12. 00 in the night and then she saw that the accused Pooran was giving blows with an axe to Ram Swaroop. She raised an alarm hearing which Baluram came there and then the accused appellant ran away by jumping over the boundary wall. It will be seen from the site inspection report that the boundary wall is of hardly two ft. and is Kachha. PW 2 Suresh states that he too had returned from the school after seeing the play which was being played there and had slept and it was about 3. 00 a. m. in the morning that he heard an alarm coming from the house of Ram Swaroop. He went there and saw that Ram Swaroop was lying on the cot with injuries on his person. He states that it was Surji who told him that it was Pooran who had caused the death of Ram Swaroop He then went to call Balu Ram. PW 5 is Prabhati and she is aunt (Mausi) of deceased Ram Swaroop and she states that she too had returned about 12. 00 1. 00 in the night and then she saw that the accused was standing near the cot of Ram Swaroop and was giving blows with an axe to the deceased. On hearing alarm Banwari had also arrived at there. In her cross-examination Prabhati stated that she returned from the school after seeing the play at about 12. 00 in the night and immediately she started raising the alarm. Banwari PW 6 who too had arrived at the spot as per evidence of the witnesses, does not give any time as to at what time he returned from the school. Mst. Meera PW 9 is mother of Ram Swaroop and according to her statement, she too had returned at about 12. 00 in the night and Surji and others were ahead of her. Surji was saying that it was Pooran who had caused the death of Ram Swaroop with an axe. From the statements of witnesses it can be said that at about 12. 00-1. 00 in the night that occurrence is said to have taken place. Doctor in his post-mortem report has not given any definite time of death of the deceased since the time of post-mortem and he had only said that the deceased had died within 24 hours of the post-mortem. No attempt was made even by the Public Prosecutor or the learned counsel for the appellant to pin-point the time as to when the deceased died or atleast within how many hours of the post-mortem the deceased had died. Anyhow, it can be said from the evidence on record that the death of deceased might have taken place in between 12. 00 and 2. 00 a. m. in the night intervening 15-16th September 1987. ;