GARG, J. - (1.) THIS appeal from Jail has been filed by the accused appellant against judgment and order dated 7. 3. 2001 passed by the learned Addl. Sessions Judge Banswara in Sessions Case No. 88/99 by which he while acquitting for the offence under sections, 307, 326 and 447 IPC, convicted he accused appellant for the offence under sections 302 and 324 IPC IPC and sentenced him in the following manner:- Name of appellant convicted u/s Sentence awarded Jeeva @ Khema 302 IPc Imprisonment for life and To pay fine of Rs. 1000/-, In default of payment of Fine to further undergo Six months imprisonment. 324 IPc Six months RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for 15 days. Both the aforesaid substantive sentences were ordered to run concurrently.
(2.) SINCE this appeal was preferred by the accused appellant from jail and he was not represented by any counsel, therefore, this Court vide order dated 24. 5. 2004 appointed Shri Jog Singh as Amicus Curiae to argue the case on behalf of the accused appellant and he has argued the case. It arises in the following circumstances: On 12. 2. 1999 at about 9. 00 AM, PW1 Mani daughter of Narayan lodged an oral report before PW 7 Girvar Singh, who was at that time ASI and Incharge of Police Station Lohariya District Banswara, stating inter-alia that on 11. 2. 1999 at about 6. 00 PM in the evening, she was standing outside her house and at that time, she saw that her grand-father Khuspal (hereinafter referred to as the deceased) and uncle Jeeva @ Khema (accused appellant) both were in the chowk of house of PW 5 Devji and the accused appellant was giving beating to deceased with Kulari and the deceased was crying and upon this, she and her mother PW 4 Santu rushed towards the place of occurrence to save deceased and when they intervened, the accused appellant also gave beating to her mother PW 4 Santu, as a result of which, she fell down on the earth. It was further stated by PW 1 Mani that deceased also fell down in the chowk as a result of beating given to him by accused appellant and deceased died on the spot. It was further stated by PW 1 mani that accused appellant gave kulari blow on the neck of deceased and wooden handle of the Kulari had broken and the accused appellant, after taking kulari as well as its wooden handle, ran away from the place of occurrence. It was further stated by PW 1 Mani that she cried loudly and upon this, PW 2 Vijaypal and PW 3 Nathu also came there and she narrated the whole story to them. It was further stated by PW1 Mani that there was a dispute between the accused appellant and her grant-father (deceased) in respect of land and because of that enmity, accused appellant had killed deceased and dead body of deceased was lying on the spot and her mother PW 4 Santu has been taken to Ganoda for treatment. The oral report of PW 1 Mani was reduced into writing by PW 7 Girvar Singh in the shape of FIR Ex. P/1 and he started investigation. During investigation, site plan Ex. P/2 was got prepared by PW 7 Girvar Singh on 12. 2. 1999 in presence of PW 2 Vijaypal and phuliya and from the site, blood smeared soil and control soil (sample) were taken and seized through fard Ex. P/3 and the fard of panchayatnama of dead body of deceased was also got prepared and the same is Ex. P/4. PW4 Santu was got medically examined by PW 8 Dr. Paras Kumar Jain ad her injury report is Ex. P/5. The post mortem of dead body of the deceased was got conducted by PW 8 Dr. Paras Kumar Jain and the post mortem report is Ex. P/13, where it was opined that cause of death of deceased was opined that cause of death of deceased was injuries to neck by sharp cutting weapon. Cutting esophagus trachea & large blood vessels causing bleeding shock & death. The accused appellant was got arrested by PW 7 Girvar Singh on 12. 2. 1999 through arrest memo Ex. P/6 and during arrest, accused appellant gave information ex. P/7 about recovery of kulari and its wooden handle and in pursuance of that information Ex. P/7 the accused appellant got recovered kulari, which was stained with blood, and the same was seized by PW 7 Girvar Singh through far Ex. P/8 in presence of PW 5 Devji and PW 9 Moga. The site plan of recovery of kulhari was also got prepared by PW7 Girvar Singh and the same is Ex. P/9. The recovered and seized articles were sent to FSL and the FSL report is Ex. P/14. After usual investigation, police submitted challan for the offence under Section 302, 307, 326, 324 and 447 IPC against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 1. 9. 1999, the learned Addl. Sessions Judge, Banswara framed the charges for the offence under Sections 302, 307, 447, 326 and 324 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 9 witnesses and exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr. P. C. was recorded. In defence, no evidence was produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge, Banswara through impugned judgment and order dated 7. 3. 2001 while acquitting for the offence under Sections 307, 326, 447 IPC, convicted the accused appellant for the offence under Section 302 and 324 IPC and sentenced him in the manner as indicated above holding inter-alia that the accused appellant had murdered the deceased and also caused injuries to PW 4 Santu and in coming the above conclusions, he has placed reliance on the statements of PW 1 Mani and PW 4 Santu as eye witnesses and he has also sought corroboration from medical evidence and recovery of blood stained kulari at the instance of accused appellant. Aggrieved from the said judgment and order dated 7. 3. 2001 passed by the learned Addl. Sessions Judge, Banswara, this appeal has been filed by the accused appellant from jail. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:- (i) That PW 1 Mani and PW 4 Santu could not be regarded as eye witnesses as the distance between the place where they were sitting and the place where the incident took place, is about 300 feet as stated by PW 1 Mani and from that distance, it was not possible for them to see the occurrence, especially when the incident had taken placed near about 6. 00 PM in the evening when darkness was spreading. (ii) That apart from this, PW 1 Mani is grand daughter of deceased and PW 4 Santu is daughter-in-law of deceased and therefore, they are interested witnesses and their evidence should have not been believed by the learned trial Judge. (iii) That it is also not clear whether accused appellant caused injuries to Narayan, father of PW 1 mani or deceased as there is confusion in this respect. (iv) That so-called recovery of kulari does not connect the accused appellant with the commission of crime. Hence, it was submitted that prosecution has, failed to prove its case beyond all reasonable doubts against the accused appellant and therefore, the findings of conviction recorded by the learned trial Judge cannot be sustained and liable to be set aside and the accused appellant is entitled to acquittal. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 7. 3. 2001 passed by the learned Addl. Sessions Judge, Banswara. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case.
(3.) BEFORE proceeding further, first medical evidence of this case has to be seen. Injuries of PW 4 Santu The injury report of PW 4 Santu is Ex. P/5 and to prove the same, the prosecution has produced PW 8 Dr. Paras Kumar Jain. Pw 8 Dr. Paras Kumar Jain in his statement recorded in Court has stated that on 12. 2. 1999 he was Medical Officer in C. H. C. Ganoda and on that day, he medically examined Pw 4 Santu and found the following injuries on her person:- 1. Incised wound 4 cm x 1/2 cm x skin deep on right side chest upper part. Simple caused by sharp edged weapon. 2. Incised wound 7 cm x 1/2 cm, 4 cm x 1/2 cm and 4 cm x 1/2 cm on left side of neck. Simple caused by sharp edged weapon. 3. Incised wound 4 cm x 1/2 cm on chin lower part Simple caused by sharp edged weapon. 4. Incised would 1 cm x 1/4 cm x skin deep on left side cheek. Simple caused by sharp edged weapon. 5. Incised would 1 cm x 1/4 cm x skin deep on left side of face near angle of eye. Simple caused by sharp edged weapon. 6. Incised wound 3-1/2 cm x 1/4 cm x 1/2 cm on left ear. Grievous caused by sharp edged weapon. 7. Incised would 4 cm x 1/2 cm x skin deep on left side scalp. Simple caused by sharp edged weapon. 8. Incised wound 1 cm x 1/4 cm x skin deep on left side neck. Simple caused by sharp edged weapon. He has proved the injury report Ex. P/5. ;