Sunil Kumar Garg, J. - (1.) This appeal has been filed by the accused-appellant against the judgment and order dated 3.12.1999 passed by the learned Sessions Judge, Karauli in Sessions Case No. 20/99 by which he convicted the accused-appellant for the offence u/s. 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo six months SI
(2.) It may be stated here that by the same judgment and order, the learned Sessions Judge acquitted the accused-appellant the offence u/ss. 302/34 and 323 IPC. The learned Sessions Judge also acquitted the accused-Pintu for the offence u/ss. 302, 302/34 IPC, but convicted him for the offence u/s. 323 IPC, but for that offence, he was released on probation. The learned Sessions Judge also acquitted the accused-Kishan @ Kishanlal of all the charges framed against him i.e. for the offence u/ss. 302, 302/34 & 323 IPC.
(3.) It arises in the following circumstances : On 1.7.1998 at about 4.00 a.m. in the morning, PW-10 Murari lodged a written report Ex.P/10 with the police station Sapotara District Karauli before PW-11 Lekhraj Singh, who was at that time SHO of that Police Station stating inter alia that on 30.6.1998 at about 7.00 p.m. in the evening in the village Berunda, his father Sugniya (hereinafter referred to as 'the deceased') was going to jungle to satisfy the nature's call and when he was going on the way, the accused-appellant, another acquitted accused-Kishan and Pintu and some other persons encircled deceased and at that time, accused-appellant was armed with sword and another acquitted accused- Kishan was also armed with sword and the accused-appellant gave a sword blow the head of the deceased and the second sword blow was given by acquitted accused-Kishan on the neck of the deceased and on hearing cries, PW-8 Rishikesh, who was grand-son of the deceased, reached on the spot and when PW-8 Rishikesh intervened in the matter, accused-Pintu gave a kulhari blow on his left leg and all accused persons treating that the deceased had died, had run away from the place of occurrence. It was further stated in the report Ex.P/10 by PW-10 Murari that the above facts were narrated to him by PW-8 Rishikesh, who, according to him, was present on the spot and when the deceased was being taken to the hospital, he succumbed to his injuries on the way. On this report Ex.P/10, PW-11 Lekhraj Singh registered the case and chalked out regular FIR Ex.P/11 and started investigation. During investigation, site plan Ex./3 was got prepared by PW-11 Lekhraj Singh and the accused-appellant was got arrested by PW-11 Lekhraj Singh on 2.7.1998 through arrest memo Ex.P/1. The post-mortem of the dead body of the deceased was got conducted by PW-4 Dr. Puranmal Verma and the post-mortem report is Ex.P/5 where it was opined that the cause of death of the deceased was coma, due to organic brain damage due to fracture of skull bones and brain injury and haemorrhage. PW-8 Rishikesh was also got medically examined by PW-4 Dr. Puranmal Verma and his injury report is Ex.P/6, which shows that he received only one injury. The accused-appellant was also got medically examined by PW-4 Dr. Puranmal Verma and his injury report is Ex.P/4, which shows that he received three injuries. After usual investigation, police submitted challan against the present accused-appellant and another acquitted accused-Kishan and Pintu for the offence u/ss. 302, 302/34 & 323 IPC in the Court of Magistrate and from where, the case was committed to the Court of Session. On 26.2.1996, the learned Sessions Judge, Karauli framed charges for the offence u/s. 302 alternatively 302/34 & 323 IPC against the accused-appellant and another acquitted accused-Kishan and Pintu and the charges was read over and explained to them. They denied the charges and claimed trial. The prosecution in support of its case examined as many as 11 witnesses and got exhibited several documents and thereafter, statements of the accused-appellant and another acquitted accused- Kishan and Pintu u/s. 313 Cr.P.C. were recorded. No evidence was led in defence. After conclusion of trial, the learned Sessions Judge, Karauli through impugned judgment and order dated 3.12.1999 convicted the accused-appellant for the offence u/s. 302 IPC and sentenced him in the manner as indicated above holding inter alia:- (i) That deceased died because of the head injury. (ii) That PW-8 Rishikesh received only one injury at the hands of another accused-Pintu and thus, the learned trial Judge found the case for the offence u/s. 323 IPC proved against accused-Pintu. (iii) That PW-8 Rishikesh was treated as sole eye-witness of the occurrence. (iv) That PW-8 Rishikesh was grand-son of the deceased and his evidence was found reliable and trustworthy by the learned trial Judge and the plea that since he was interested and relative witness, his evidence should be discarded, was rejected by the learned trial Judge. (v) That since PW-8 Rishikesh was an injured witness, therefore, his presence on the spot was found natural one by the learned trial Judge. (vi) That the fact that accused-appellant received injuries at the hands of the deceased had not been found proved and established. (vii) That no doubt PW-8 Rishikesh, sole eye-witness of the occurrence, had not explained the injuries of the accused- appellant, but for that, the case of the prosecution was not found doubtful by the learned trial Judge and further, these injuries of accused-appellant were found trivial in nature and thus, the learned trial Judge came to the. conclusion that these injuries had not affected the case of the prosecution in any manner. (viii) That injury No. 1 of the post-mortem report Ex.P/5, which was on head of the deceased, was caused by the present accused-appellant by sword. (ix) That since the injury on head had affected the brain of the deceased, therefore, the plea of the accused-appellant that the case for the offence u/s. 304 IPC was made out, was rejected by the learned trial Judge. (x) That witnesses PW-3 Joriya and PW-9 Hargyan reached on the spot, after the incident had taken place, but prior to them, PW-8 Rishikesh had already reached on the place of occurrence. (xi) That accused-Pintu had not caused any injury to the deceased. (xii) That since PW-8 Rishikesh was contradicted with his police statement Ex.D/1 in which he has not mentioned the name of the acquitted accused-Kishan, therefore, statement of PW-8 Rishikesh recorded in Court in which he had stated that acquitted accused-Kishan also gave sword blow on neck of the deceased, was not found truthful version by the learned trial judge and thus, the learned trial Judge carne to the conclusion that the prosecution has failed to prove the fact that acquitted accused-Kishan gave sword blow on neck of the deceased and the learned trial Judge further came to the conclusion that so far as the present accused-appellant was concerned, he gave only one blow on the head of the deceased with sword. Aggrieved from the said judgment and order dated 3.12.1999 passed by the learned Sessions Judge, Karauli, the accused-appellant has preferred this appeal.;