SUNIL KUMAR GARG,J. - (1.) The abovementioned accused-appellant has preferred this appeal against the judgment and order dated 12.7.2002 passed by the learned Additional Sessions Judge, Banswara camp Kushalgarh in Sessions Case No. 81/2001 by which he convicted the accused-appellant for offence under Section 302 I.P.C. and sentenced him to imprisonment for life and a fine of Rs. 5,000/-, in default of payment of fine to further undergo 2 years RI.
(2.) It arises in the following circumstances : (i) That on 9.3.2001 at about 7.30 a.m., PW-2 Rajesh lodged an oral report (Ex.P/2) in the M.G. Hospital, Banswara before PW- 10 Bhanwar Singh, ASI inter alia stating that Gautam (accused-appellant) was his nephew in relation and on 8.3.200 1, guests were in the house of the accused-appellant and he and his son Bhoor Singh (hereinafter referred to as 'the deceased') had also gone there on being called by the accused-appellant and thereafter the guests had left the house of the accused-appellant for their village Unkala. It was further stated in the report (Ex.P/2) lodged by PW-2 Rajesh that thereafter his son (deceased), one Par Singh, Dhula (PW-9) and PW-7 Dharu were sitting there as they had not left the hous' of the accused-appellant and at that time, there was about 3.30 p.m. It was further stated in the report (Ex.P/2) by PW-2 Rajesh that accused-appellant asked the deceased as to why'he had come to his house, upon this, the deceased stated to him that since he was invited by the accused-appellant, therefore, he had come. It was further stated in the report (Ex.P/2) that thereafter the accused-appellant started abusing the deceased and when the deceased started to go back, the accused-appellant went inside the house and brought a lathi and gave a lathi blow from backside on the head of the deceased, as a result of which, he fell down and one another lathi blow was given by the accused-appellant on the head. It was further stated in the report (Ex.P/2) that PW-2 Rajesh and other persons ran towards the deceased and intervened, but the accused appellant gave another blow on the back of the deceased and on account of the injuries blood came out from the head of the deceased and the deceased became unconscious on the spot and thereafter he (PW-2 Rajesh) and Ram Lal PW-3), Roop Singh and Gor Singh took the deceased in the jeep to the hospital at Dungra from where he was referred to Banswara, Hospital, where he was admitted, but he died. (ii) That on this report (Ex.P/2), regular FIR Ex.P/11 was chalked out and investigation was commenced and during the course of investigation, post-mortem of body of the deceased was got conducted by PW-1 Dr. Sudhindra Kumar Bhatnagar and his post-mortem report is Ex.P/1 which shows that the cause of death of the deceased was head injury. (iii) That the accused-appellant was got arrested on 9.3.2001 through Fard Ex.P/9. (ix) After investigation challan was filed against the accused-appellant in the Court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dated 27.7.2001 framed charge against the accused-appellant for offence under Section 302 I.P.C. which was denied by the accused-appellant and he claimed trial. (x) During trial statements of 10 witnesses were recorded on behalf of the prosecution and thereafter statement of accused-appellant under Section 313 Cr.P.C. was recorded, but no witness was examined in defence. (xii) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 12.7.2002 convicted and sentenced the accused-appellant as stated above. (xii) After being aggrieved by the judgment and order dated 12.7.2002 the accused-appellant has preferred the present appeal.
(3.) In this appeal, the following submissions have been raised by the learned counsel for the accused-appellant : (i) That since in this case eye-witnesses, namely, PW-3 Ram Lad, PW-7 Dharu and PW-9 Dhula have been declared hostile and some of the witnesses whose names had been mentioned in the report (Ex.P/2) have not been produced, therefore, the case of the prosecution should not have been accepted as PW-2 Rajesh on whose statement reliance has been placed by the learned Additional Sessions Judge is an interested witness being father of the deceased and hence, there is no corroboration to the statement of PW-2 Rajesh and because of this fact, conviction of the accused-appellant should not be sustained. (ii) That for the sake of arguments, if this Court comes to the conclusion that the accused-appellant has committed any offence, the same cannot travel beyond Section 325 I.P.C. or at most Section 304(11) IPC and thus, findings of conviction recorded by the learned Additional Sessions Judge be altered accordingly. ;