GARG, J. - (1.) THIS appeal from jail has been filed by the accused appellant against judgment and order dated 28. 2. 2003 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 112/2001 by which he convicted the accused appellant for the offence under Sections 302, 307, 394 and 460 IPC and sentenced him in the following manner:- Name of appellant Convicted u/s Sentenced awarded Mahaveer 302 IPc Imprisonment for life and to Pay fine of Rs. 10000/-, in default of payment of fine, to further undergo 2 months SI. 307 IPc Five years RI and to pay Fine of Rs. 5000/-, in default of payment of fine, to further Undergo two months SI. 394 IPc Three years RI and to pay Fine of Rs. 5000/-, in default of payment of fine, to further Undergo two months SI. 460 IPc Five years RI and to pay Fine of Rs. 10000/-, in default of payment of fine, to further Undergo two months SI. All 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 25. 5. 2004 appointed Shri R. S. Gehlot 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 3. 8. 2001 at about 6. 15 AM, PW15 Deepa gave a Parcha Bayan Ex. P/27 to PW16 Abhay Singh, who was at that time SHO, Police Station Begu stating inter-alia that the accused appellant is son of her elder father and thus, in relation he is her brother and on 2. 8. 2001 in the night at about 9. 00 PM, he came to her house. It was further stated by PW15 Deepa that her father had already died and she had no real brother and therefore, accused appellant used to make frequent visit to her house. It was further stated by PW15 Deepa that on 2. 8. 2001 at about 11. 00 PM, after eating food, she, her mother Nandu (hereinafter referred to as the deceased) and accused appellant all slept and she was sleeping alongwith her mother (deceased ). It was further stated by PW15 Deepa that in the night he heard the cries of her mother (deceased) and when she switched on the bulb, she found that the accused appellant was armed with knife and he was giving knife blows to her mother (deceased) and he was also saying "where the ornaments and money were lying" and when she intervened, she was also giving knife blows by the accused appellant. It was further stated by PW15 Deepa that thereafter, she went near the window and after opening window, she cried for help and some persons, who were repairing tractor, heard the cries and they also cried and upon this, accused appellant reached on the roof and when she took care of her mother (deceased), she found that deceased had already died and this incident had taken place near about 3. 30 AM on 3. 8. 2001 and thereafter, the persons, who were repairing tractor, and police came there and they took her to the hospital. It was further stated by PW15 Deepa that accused appellant had come with the intention to commit murder of deceased and to take money and ornaments and further, he also intended to take over the property of the deceased. On this Parcha Bayan Ex. P/27, police registered the case and chalked out regular FIR Ex. P/28 and investigation was conducted by PW16 Abhay Singh. During investigation, site plan Ex. P/6 was got prepared by PW16 Abhay Singh and the fard of panchayatnama of dead body of deceased was also got prepared and the same is Ex. P/7. Through fard Ex. P/8, clothes of deceased i. e. orni (Article 11) stained with blood was seized by PW16 Abhay Singh. From the place of occurrence, blood sample on cotton (Article 12) was also taken by PW16 Abhay Singh and the same was seized through fard Ex. P/29 in presence of PW14 Bhanwarlal and PW10 Mohanlal. Through fard Ex. P/31, blood stained salwar (Article 9) and kurta (Article 10) belonging to PW15 Deepa were seized by PW16 Abhay Singh in presence of PW14 Bhanwarlal and PW10 Mohanlal. The post mortem of the dead body of the deceased was got conducted by PW6 Dr. Goru Ram and the post mortem report is Ex. P/23 where it was opined that cause of death of deceased was multiple injuries to liver and excessive blood resulted in death. PW15 Deepa was also got medically examined by PW6 Dr. Goru Ram and her injury report is Ex. P/24. which shows that she received as many as 33 injuries by sharp edged weapon. The accused appellant was got arrested on 3. 8. 2001 through arrest memo Ex. P/5 and in the arrest memo Ex. P/5, there is a mention of the fact that he was having so many injuries on his person. The accused appellant was also got medically examined by PW6 Dr. Goru Ram and his injury report is Ex. P/25, which shows that he was having 13 injuries on his person. Through fard Ex. P/4, blood stained pent (Article 7) and bushirt (Article 8) of the accused appellant were seized by PW16 Abhay Singh in presence of PW1 Bharat and Sangram and through fard Ex. P/1, on the information of accused appellant, blood stained knife (Article 1) was seized by PW16 Abhay Singh in presence of PW1 Bharat and Sangram. When the accused appellant was in police custody, through fard Ex. P/3 ear ring (Article 13) belonging to PW15 Deepa was also got recovered and seized by PW16 Abhay Singh and that ear ring (Article 13) was got identified before Tehsildar through fard Ex. P/21 in identification parade by PW15 Deepa. The recovered and seized articles were sent to FSL for chemical examination and the FSL report is Ex. P/36. After usual investigation, police submitted challan for the offence under Sections 302, 307, 394 and 460 IPC against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 3. 12. 2001, the learned Addl. Sessions Judge No. 2, Chittorgarh framed the charges for the offence under Sections 302, 307, 394 and 460 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 17 witnesses and exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr. P. C. was recorded. In defence, one witness DW1 Meena Kumari, who is wife of accused appellant, was produced. After conclusion of trial, the learned Addl. Sessions Judge No. 2, Chittorgarh through impugned judgment and order dated 28. 2. 2003 convicted the accused appellant for the offence under Sections 302, 307, 394 and 460 IPC and sentenced him in the manner as indicated above holding inter-alia:- (i) That on the intervening night of 2nd and 3. 08. 2001, the accused appellant had murdered deceased and he had also attempted to murder PW15 Deepa and his intention was also to commit robbery from the house of the deceased and thus, he committed lurking house-trespass by night and caused murder of deceased and also made an attempt to murder PW15 Deepa. (ii) That learned trial Judge has placed reliance on the statement of injured witness PW15 Deepa and her statement was corroborated by independent witnesses PW3 Harlal, PW11 Narayan, PW13 Faij Mohd. and PW17 Devilal. (iii) That learned trial Judge has also placed reliance on the evidence that clothes of the accused appellant were stained with human blood. (iv) That learned trial Judge has also placed reliance on the evidence of recovery of blood stained knife (Article 1) at the instance of accused appellant. (v) That learned trial Judge has come to the conclusion that there was ample evidence on record to connect the accused appellant with the commission of crime and the prosecution has proved its case beyond all reasonable doubts against the accused appellant and thus, he convicted and sentenced the accused appellant in the manner as indicated above. Aggrieved from the said judgment and order dated 28. 2. 2003 passed by the learned Addl. Sessions Judge, Chittorgarh, 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 since PW15 Deepa was daughter of the deceased, therefore, she was relative and interested witness and thus, no reliance should have been placed on her statement by the learned trial Judge. (ii) That prosecution has not explained the injuries of the accused appellant, which are found in his injury report Ex. P/25 and thus, benefit of doubt should be given to the accused appellant. (iii) That had the accused appellant was having any intention of committing robbery in the house of the deceased, he would have done so, but since in this case, there is no evidence that he looted the ornaments, but only ear ring of PW15 Deepa was found when the accused appellant was in police custody. Thus, motive is absent in this case and from that point of view also, benefit of doubt should be given to the accused appellant. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 28. 2. 2003 passed by the learned Addl. Sessions Judge, No. 2, Chittorgarh. 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 and post mortem report of deceased. The post mortem report of deceased is Ex. P/23 and to prove the same, the prosecution has produced PW6 Dr. Goru Ram. Pw6 Dr. Goru Ram in his statement recorded in Court has stated that on 3. 8. 2001, he was Medical Officer in C. H. C. Begu and on that day he conducted the post mortem of the dead body of the deceased and found the following injuries on her body:- 1. Incised wounds two in number 1cm x 1/4cm x muscle deep each on left cheek. 2. Incised wound 1-1/2cm x 1/4cm x muscle deep on left mandiubar area. 3. Stab wound 1cm x 1/2cm x 1-1/2cm on left shoulder anteriorly. 4. Stab wound 1-1/4cm x 1/2cm x 1-1/2cm on left shoulder laterally. 5. Incised wounds four in number 3/4cm x 1/4cm each muscle deep on superior surface of left shoulder. 6. Stab wound 1cm x 1/2cm x 1-1/2cm on back of left shoulder. 7. Stab wound 1/2cm x 1/4cm x 1cm on left mammary area (parasternal) 8. Incised wound 1cm x 1/8cm x muscle deep on right mammary area (parasternal ). 9. Incised wound 1cm x 1/4cm x muscle deep on right maxillary area (right cheek ). 10. Incised wound 1cm x /8cm x muscle deep on right 1/2 of upper lip (near angle of mouth ). 11. Incised wound 3cm x 1/3cm x muscle deep on lower left of right cheek. 12. Incised wounds three in number 1cm x 1/2 x muscle deep each on preamicular area of right cheek. 13. Stab wound 3/4cm x 1/2cm x 1cm on right submandibular area. 14. Incised wounds four in number 1-1/2cm x 1/3cm x 1-1/2cm each on right lateral surface of neck. 15. Incised wound 1cm x 1/4cm x muscle deep on right postero lateral surface of neck. 16. Bruise with abrasion 1cm x 1cm on right temple. 17. Stab wound 1-1/2cm x 1/2cm x 1-3/4cm on antero lateral surface of right 1/2 of neck. 18. Stab wound 1-1/2cm x 1/2cm 1-3/4cm on proximal half of anterolateral surface of right forearm. 19. Incised wound 2cm x 1/2cm x muscle deep on proximal posterior surface of right forearm. 20. Incised wounds five in number 1-1/2cm x 1/4cm x muscle deep each on back of right shoulder. 21. Incised wound 1cm x 1/4cm x muscle deep on back of left shoulder. 22. Incised wound 1cm size linear mucosa deep on surface of upper lip. 23. Bruise 1cm x 1/4cm on mucosal surface of lower lip. 24. Stab wounds total four in number each measures 2cm x 1/2cm x cutting through skin. Subcutaneous tissues, muscles, peritoneum and (interior surface ). liver- Present over right lateral abdominal wall below costal margins. Each wound penetrated 3cm deep in liver (inferior surface ). Clotted blood present at and around wounds. Abdominal cavity contain 700 ml of clotted & fluid blood. Injuries present over right robe of liver only. He has further stated that deceased died because of multiple injuries to liver (injury No. 24) which resulted in excessive blood. He has further stated that injury No. 24 was dangerous and sufficient in the ordinary course of nature to cause death. He has proved the post mortem report Ex. P/23. ;