GARG, J. - (1.) THIS appeal has been preferred by the accused appellant Bhapa Ram from jail against the judgment and order dtd. 27. 5. 2003 passed by the learned Additional Sessions Judge (Fast Track), Bhinmal 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. 1000/- in default of payment of fine to further undergo 6 month's S. I.
(2.) IT may be stated here that since accused appellant preferred this appeal from jail and nobody was representing the accused appellant, therefore, this Court by order dtd. 5. 8. 2003 appointed Shri K. L. Joshi as amicus curiae in this case to represent the accused appellant in this appeal. It arises in the following circumstances: i) That on 2. 10. 2001 at about 4. 30 p. m. , P. W. 3 Mohan Lal lodged a written report (Ex. P/7) before P. W. 9 Rupa Ram (SHO Police Station, Jaswantpura) inter alia stating that on 2. 10. 2001 at about 2. 45 p. m. , when he was sitting in the office near Sundha Hill, at that time, one labourer Pota (P. W. 4) came there and told P. W. 3 Mohan Lal that Smt. Leela Devi (hereinafter referred to as the deceased) had been murdered by the accused appellant near the gate of Parking and she died on the spot and it was further stated in the report (Ex. P/7) that the accused appellant was trying to run away from the place of occurrence having an iron rod in his hand. ii) It was further stated in the report (Ex. P/7) that this incident was further witnessed by P. W. 5 Pura and P. W. 6 Rekha and thereafter he tried to contact the police over telephone, but he could not succeed. iii) It was further stated in the report (Ex. P/7) that on the date of occurrence there was full noon and as a result of that, there was rush and thus, this incident was seen by so many passers by also and it was further stated in the report (Ex. P/7) that the accused appellant was apprehended by the people on the place of occurrence. iv) On this report (Ex. P/7) of P. W. 3 Mohan Lal, a regular FIR Ex. P/12 was chalked out and police started investigation. v) During investigation site plan (Ex. P/2) was prepared and through Fard Ex. P/4 the police seized simple cement of the floor and the cement which was stained with blood and through Fard Ex. P/5 dtd. 2. 10. 2001, the accused appellant was got arrested at 7. 30 p. m. in the presence of Deepa Ram and Sujan Singh (P. W. 2) and at that time he was under the control of P. W. 5 Pura Ram and P. W. 6 Rekha Ram and through Fard Ex. P/6 dtd. 2. 10. 2001 iron rod (article 1) which was stained with blood was recovered from the accused appellant in presence of P. W. 2 Sujan Singh and Deepa Ram. vi) P. W. 12 Dr. Rajesh Kumar conducted post mortem of the body of the deceased and her post mortem report is Ex. P/15 and P. W. 12 Dr. Rajesh Kumar opined that cause of death of the deceased was head injury. vii) The FSL report is Fard Ex. P/16 and through Fard Ex. P/18 the Cloths of the deceased, namely, Peticot, Blouse and Saree were seized by P. W. 17 Gyan Chand is presence of Deepa Ram and Durga. viii) After investigation, the police filed challan against the accused appellant for offence under Section 302 I. P. C. in the court of Additional Chief Judicial Magistrate, Bhinmal on 11. 1. 2001 and the learned Additional Chief Judicial Magistrate through order dtd. 5. 1. 2002 committed the case to the court of Additional Sessions Judge, Bhinmal. ix) The learned Additional Sessions Judge through order dtd. 27. 5. 2002 framed charge for offence under Section 302 I. P. C. against the accused appellant who denied the same and claimed trial. x) At the trial 17 witnesses were produced on behalf of the prosecution and thereafter statement of accused appellant under Section 313 Cr. P. C. was recorded in which he had stated that some Gujarati Tourist had murdered the deceased and he had snatched the iron rod (Article 1) from him and therefore, iron rod (Article 1) was seized by the police from him and he did not murder the deceased but the accused appellant did not produce any evidence in defence. xi) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dtd. 27. 5. 2003 convicted and sentenced the accused appellant for offence under Section 302 I. P. C. as stated above inter alia holding:- a) That the accused appellant was arrested at the place of occurrence along with iron rod (Article 1) which was stained with human blood and this fact was confirmed by FSL report Ex. P/16 and therefore, this circumstance was found to be incriminating against the accused appellant. b) That no doubt there was some discrepancies in the statements of P. W. 4 Poti, P. W. 5 Pura Ram and P. W. 6 Rekha Ram who were eye witnesses, but their statements were found believable. c) That defence of the accused appellant that some Gujarati tourist had murdered the deceased was rejected. d) That from the medical evidence the fact that death of the deceased was homicidal was proved and further more, from the medical evidence the fact that head injury which was received by the deceased was sufficient in the ordinary course of nature to cause death. xii) After being aggrieved by the judgment and order dtd. 27. 5. 2003 passed by the learned Additional Sessions Judge by which he convicted and sentenced the accused appellant for offence under Section 302 I. P. C. , the accused appellant has preferred the present appeal. In this appeal, following submissions have been raised by the learned counsel for the accused appellant: i) That the learned trial Judge has wrongly treated P. W. 4 Pota, P. W. 5 Pura Ram and P. W. 6 Rekha Ram as eye witnesses as they were not the eye witnesses and the incident took place when they were not present and moreover as per the report (Ex. P/7) which was lodged by P. W. 3 Mohan Lal, the whole incident was narrated to him by P. W. 4 Pota and in that report (Ex. P/7) there is mention of the fact that P. W. 5 Pura Ram was also present, but P. W. 5 Pura Ram is about 82 years of age and since he has admitted in the cross- examination that his eye-sight was weak, therefore, there was no occasion for him to see the occurrence and hence the statements of eye witnesses, namely, P. W. 4 Pota, P. W. 5 Pura Ram and P. W. 6 Rekha Ram should not have been believed. ii) That the defence which had been taken by the accused appellant in his statement under Section 313 Cr. P. C. should have been believed as murder of the deceased was committed by some other person and not the accused appellant and since he was in relation with the deceased, therefore, he snatched the iron rod from Gujarati tourist who had murdered the deceased but he was treated as murderer and therefore, benefit of doubt should have been given to him on this point. On the other hand, the learned P. P. has supported the judgment and order dtd. 27. 5. 2003 and submitted that the findings of guilt and conviction recorded by the learned Additional Sessions Judge (Fast Track), Bhinmal are based on proper appreciation of evidence available on record and they do not require any interference by this Court. Heard and perused the record.
(3.) BEFORE proceeding further, first medical evidence of this case has to be seen which is found in the statement of P. W. 12 Dr. Rajesh Kumar who conducted the post mortem of the dead body of the deceased and has proved her post mortem report (Ex. P/15) and P. W. 12 Dr. Rajesh Kumar found the following injuries on her body: 1) Compound fracture of frontal bone (head ). 2) Upper 1/3rd part of Rt. Radius bone fractured. From the statement of P. W. 12 Dr. Rajesh Kumar the fact that the deceased received the above injuries is well proved and he has further stated that on opening of scalp of the deceased he found compound and depressed fracture of frontal bone and upper 1/3rd part of radius bone was also found fractured and he also stated that compound fracture of frontal bone was sufficient in the ordinary course of nature to cause death. Thus, from the statement of P. W. 12 Dr. Rajesh Kumar the fact that death of the deceased was homicidal one stands proved and there is no dispute on this point. ;