BANSAL, J. - (1.) THE instant appeal stems from the judgment dated July 4, 2000 passed by learned Special Judge (Sati Niwaran) cum Additional Sessions Judge, Jaipur City, Jaipur whereby appellant Suresh has been convicted under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months.
(2.) BRIEFLY stated the prosecution case is that on 8. 12. 98 at 12. 30 p. m. oral report Ex. P11 was lodged by PW12 Omprakash S/o Late Shri Sohan Lal, by caste-Jangid, R/o-House No. 46, Khatiwada, Station Road, Jaipur at Police Station Jalupura, Jaipur City wherein it was interalia stated that on receiving information from a boy today at around 11. 30 a. m. he went to the shop of his brother Ramesh. He found Ramesh unconscious in front of the shop. It was also found that Suresh Harijan who had inflicted injuries on the person of Ramesh was caught by Yaseen Khan. Thereafter he took his brother Ramesh to S. M. S. Hospital where he was declared dead by the doctor. On the basis of the oral report Ex. P11, the SHO P. S. Jalupura registered a case under Section 302 IPC and investigation commenced. In the course of the investigation the SHO, P. S. Jalupura who investigated the case, reached on the spot and prepared Site Plan Ex. P2. Appellant Suresh was arrested on the spot vide Arrest Memo Ex. P1. Blood smeared soil, control soil, one broom and one hammer were seized from the spot and the Investigating Officer prepared Seizure Memos' Ex. P6, Ex. P5, Ex. P4 and Ex. P3 respectively. `panchnama' Ex. P10 of the dead body was prepared by the I. O. in the mortuary of S. M. S. Hospital, Jaipur. Blood stained clothes which the deceased was wearing at the time of the incident were also seized and sealed vide Seizure Memo Ex. P9. Post-mortem examination on the dead body of Ramesh was conducted by PW11 Dr. H. L. Bairwa, Medical Jurist, S. M. S. Hospital, Jaipur at 9. 50 a. m. on 9. 12. 98 and he prepared Post-mortem Report Ex. P18. Statements of the witnesses were recorded under Section 161 Cr. P. C. On completion of investigating the charge-sheet was laid in the Court of Additional Chief Judicial Magistrate No. 2, Jaipur City who committed the case to the Court of Sessions Judge, Jaipur City. In due course the file was transferred to the Court of Special Judge (Sati Niwaran) cum Additional Sessions Judge, Jaipur City for trial. Learned Additional Sessions Judge framed charge under Section 302 IPC against the appellant who denied it and claimed trial. To prove the charge, the prosecution examined as many as 14 witnesses. Thereafter the appellant was examined u/sec. 313 Cr. P. C. who pleaded innocence. It was further stated by him that Yaseen Khan had caused the death of Ramesh and the incident was witnessed by him and his wife. He was falsely implicated in the case. In defence DW1 Santosh (wife of the appellant), DW2 Ramesh and DW3 Raju were examined by the appellant. The learned Additional Sessions Judge after hearing the final submissions, convicted and sentenced the accused-appellant as indicated here-in-above. We have heard learned Amicus Curiae for the appellant, Learned Public Prosecutor and have also scanned and scrutinized the material on record. Pw11 Dr. H. L. Bairwa stated that on 9. 12. 98 he was posted as Medical Jurist, S. M. S. Hospital, Jaipur and on that day at 9. 50 a. m. on the request of P. S. Jalupura he conducted the post-mortem examination on the dead body of Ramesh S/o Sohan Lal, aged 37 years, by caste-Jangid, R/o-39, Anand Vihar, Jaipur and found the following injuries:- EXTERNAL INJURIEs (1) Lacerated wound 6 x 2cm. x bone deep oblique and slightly curved with dark reddish clotted blood over centre of forehead. (2) Lacerated wound 2 x 1cm. x bone deep oblique over lateral part of right side eyebrow and forehead. Dark reddish clotted blood. (3) Lacerated wound 1 x 1/2cm. x bone deep oblique right side forehead, fresh clotted blood and 1cm. above from injury No. 2. (4) Lacerated wound 4 x 2cm. oblique over left side parietal region near parietal prominence of scalp, fresh clotted blood with diffuse swelling all over scalp part. (5) Lacerated wound 6 x 2-1/2cm. oblique and over left side of temporo-occipital region and crossing left ear pinna and part of left ear pinna involved in middle part. (6) Seven abrasions of size 3 x 2cm. to 1/2 x 1/2cm. over left side cheek at places. INTERNAL INJURIEs Scalp-As mentioned and subscalp haematoma all over, Dark reddish in colour. Skull: (1) Depressed fracture 3 x 2cm. communitted of bones of depressed fracture area. There was dark reddish clotted blood with underneath extra dural haematoma present. (2) Fracture of right anterior cranial fossa bone with dark reddish clotted blood. Membranes-Subdural haematoma all over brain area present. Brain: (1) Laceration 1 x 1/2 x 1/2cm. on right side frontal lobe. (2) Multiple contusions 3 x 2cm. to 1 x 1/2cm. placed over both cerebral hemispheres and both cerebellum at places, haematoma dark reddish in colour.
(3.) DR. Bairwa further stated that in his opinion the cause of death was coma brought about as a result of injuries to the skull and the brain as mentioned in post-mortem report. He also stated that all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. He prepared Post-mortem Report Ex. P18. From the aforesaid testimony of PW11 Dr. H. L. Bairwa it has been established beyond reasonable shadow of doubt by the prosecution that deceased Ramesh met with the homicidal death. Now we come to the ocular evidence of the prosecution. PW3 Yaseen Khan stated that on 8. 12. 98 at about 11. 00 a. m. he was sitting on the roof of his house. On hearing outcry from the side of park he saw that someone was inflicting injuries with hammer on the head of Ramesh who was lying on the ground. Thereafter he ran and reached in the park where he found that blood was oozing from the injuries of Ramesh. He further stated that on seeing him the appellant started fleeing. He chased and caught hold him. On being asked the assailant said that his name is Suresh. In the meanwhile so many persons gathered there including Omprakash (brother of the deceased), Mohd. Saddiq, Deepak and Ibrahim. Ramesh was taken to the hospital by his brother Om Prakash in a taxi. He informed the police about the incident on telephone. No other eye-witness was examined by the prosecution. ;