SHARMA, J. - (1.) THE appellants were accused on the file of learned Sessions Judge, Jaipur District Jaipur bearing Sessions Case No. 89/97. Learned Sessions Judge vide judgment dated May 24, 2001 convicted and sentenced the appellants as under:- Bundu Khan: U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 2,000/-, in default to further suffer Simple Imprisonment for two months. Jarina: U/s. 302/34 IPC: To suffer Imprisonment for life and fine of Rs. 2,000/-, in default to further suffer Simple Imprisonment for two months.
(2.) THE prosecution story is woven like this:- On May 24, 1997 around 6. 15 PM Nawal Kishore Sharma (PW. 7), who was posted as ASI at Police Station Bagru, recorded parcha bayan of Smt. Kamla (PW. 1) at Mridul Agricultural Farm Bindayka. In the parcha bayan Smt. Kamla stated that her husband Mahadev (now deceased) was axed by Bundu Khan while his wife Jarina inflicted lathi-blows. Mangej (PW. 8) and Jagdish Bagra (PW. 18) had seen the incident. THEreafter Mahadev was taken to Hospital by Madan Dudi and Lallu Meena in a jeep. On the basis of parcha bayan of Kamla initially a case under Sections 307, 324 and 323/34 IPC was registered which was later on converted under Section 302 IPC. After usual investigation the charge sheet was filed and in due course the case came up for trial before the learned Sessions Judge, Jaipur District. Charges under Sections 302 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 18 witnesses and got exhibited 22 documents. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence and stated that both of them came to Jaipur in the morning on the day of incident and they remained there upto 6. 00 PM. THEy went back in a bus from Jaipur and when got down of the bus at Sirsi Bus-stand they were caught hold of by Lallu, Mangej and other villagers. At that time Mangej who was holding axe told that it was Bundu Khan who killed Mahadev. In support of defence version three witnesses were examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. It is canvassed on behalf of the appellant that material on record was not properly scanned by the trial Judge and the appellants are victims of conspiracy of Ward Member Ganpat Lal Yadav (PW. 10), Mangej (PW. 8) and Jagdish (PW. 18 ). The appellants were away from place of incident, but plea of alibi was not correctly assessed. Per contra, learned Public Prosecutor supported the impugned judgment and contended that the evidence collected at the trial conclusively shows that the appellants committed murder of Mahadev. The statements of the witnesses were read over before us and it was urged that since the guilt of the appellants is established beyond reasonable doubt no interference is called for. We have pondered over the rival submissions and carefully weighed the material on record. The super structure of the prosecution case is founded on the testimony of Smt. Kamla (PW. 1), Mangej (PW. 8) and Jagdish Bagra (PW. 18), who were examined as eye witnesses of the occurrence. Then comes the testimony of Dr. Sumant Datta (PW. 4), who performed autopsy on the dead body of deceased. The prosecution case is further supported by the testimony of Ganpat Lal Yadav (PW. 10), Dr. G. K. Mathur (PW. 12) and Nawal Kishore Sharma (PW. 7 ).
(3.) A look at the post mortem report (Ex. P-5) goes to show that the deceased sustained as many as nine antemortem injuries thus:- " 1. Incised wound 2, 1/4 x 2cm x bone deep left tibial skin upper 1/3 anteriorly find clotted blood margin clean cut regular wall defined. 2. Incised lacerated wound 1 x 1/2 x bone left 2nd metaconjphalingal joint downy with clotted blood. 3. Abrasion 5 x 2cm left taker high upper 1/3 redish colour. 4. Incised wound 2 x 1/4cm x bone deem on chin with dried clotted blood. 5. Diffuse swelling Rt. Tempo parietal region front. 6. Stab Incised wound 2 x 1/2cm x plenal cavity deep on left side lateral aspect of chest upper part down surgically for drainage. It is 7cm of axila portion aspect. 7.Stitch wound 2cm long with edge clean cut regular wall defined vertically present with clotted blood. Left dorsal of chest infascaple. 8. Stitch wound 5cm long with edge clean cut regular wall defined metically part with clotted blood. Left dorsal chest infascaple part in the clotted blood metrically present. 9. Stitch wound 13cm long placed obliquely on left dorsal chest infra scapula area. It is 26cm from left shoulder and 11cm from midment from Linc. On opening of stitches edges marginal clean cut regular wall defined with fresh clotted blood reddish colour on exploration underlying subcutanummenla parietal pleura and visual pleura and left side rib 8th to 10th rib underlying found cut obliquely. In plenal cavity left side about 2lit of blood. Blood clots present. Left lung found collapsed. Lower lobe found cut 17 x 18cm x 7cm fresh clotted blood with tissue staining and anterior healing. Bones are cut clearly through. Thigh wall defined with tissue staining of ribs 8th to 10th completely and obliquely lung tissue of leptical found cut clean wall defined regular in 7cm in clothes with tissue staining. The cause of death was hemorrhagic shock brought as a result of ante mortem injury to lung caused by injury No. 9, which was sufficient to cause death in the ordinary course of nature. It is established from the testimony of Dr. Sumant Datta (PW. 4) that the death of Mahadev was homicidal. Coming to the testimony of informant Kamla (PW. 1) we find that in her cross examination she admitted that she did not see the appellants inflicting injuries on the person of deceased. She also deposed that while Jagdish Bagra caught hold of Bundu Khan, Mangej had snatched the axe from Bundu Khan. "kharwaria ko Bundu Khan se Mangej ne khons liya tha. Kharwaria ko Mangej ne kahan par khonsa iska maloom nahin. " (Axe had been snatched by Mangej, but she did not know as to at which place the axe was snatched by Mangej ). Mangej (PW. 8) in his cross examination deposed that when he along with Kamla and Jagdish reached at the spot they saw Bundu Khan and Jarina running and they caught hold of both of them and got them seated at Mridul Agricultural Farm. At that time no person from the village reached there. Mangej denied to have snatched the axe from the hand of Bundu Khan. He denied the suggestion that Mahadev was killed by the persons belonging to Lallu's group and the appellants were falsely implicated in order to shield the real culprits. Jagdish Bagra (PW. 18) in his deposition stated that he did not see the appellants inflicting injuries on the person of deceased. In his cross examination he stated that around 3 and 3. 30 PM he caught hold of Bundu Khan out side the gate of Mridul Agricultural Farm and he thereafter called Ganpat, Ward Member (PW. 10 ). He remained at the place of occurrence from 3. 00 PM to 7. 00 PM. He further stated that Jarina was arrested by police at the spot. He denied this fact that Jarina was arrested from Sirsi Bus-stand. ;