HARBANS LAL, J. - (1.) THIS appeal has been filed by appellant Mahendra Kumar against the judgment and order dated 2. 3. 2001 passed by the learned Sessions Judge, Kota whereby he has been convicted for the offences under Sections 302 and 324 IPC and sentenced to undergo life imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to further undergo simple imprisonment for one year for the offence u/s. 302 IPC and for the offence u/s. 324 IPC he has been sentenced to suffer rigorous imprisonment for three years.
(2.) THE relevant facts, as per the prosecution version, are that the occurrence which led to the death of Tarun and injury to Om Prakash took place on 8. 10. 1998 at 9. 30 p. m. After the said occurrence deceased Tarun and injured Om Prakash were carried to the Maharao Bheem Singh Hospital, Kota by Kamal PW-6 and Pappu PW-8 who got them admitted there. Emergency operation of Tarun was performed during the night itself, but he succumbed to his injury in the morning of 9. 10. 1998. On receiving information from the hospital, Heera Lal ASI reached there and recorded the statement of Om Prakash at 1. 15 a. m. in the night intervening 8. 10. 1998 and 9. 10. 1998 where-upon a criminal case FIR No. 407/98 came to be registered by the S. H. O. Police Station Mahaveer Nagar, Kota for the offences under Sections 307, 341 and 323/34 IPC. Formal first information report was prepared, a copy whereof was forwarded to the concerned Magistrate which reached him at 12. 05 p. m. on 9. 10. 1998. In his statement (parcha bayan) injured Om Prakash has stated that his mother Mst. Shanti Bai PW-2 had lent Rs. 100/- to accused Mst. Sita Bai some 4-5 months earlier. His mother had to go to Iklera. The money available with her was short of the required amount. So, Mst. Shanti Bai PW-2 accompanied by Om Prakash PW-1 and deceased Tarun went to the house of Mst. Sita Bai and asked her to repay Rs. 100/ -. But, Mst. Sita Bai refused to repay the amount, she also denied that she owed any such amount to Mst. Shanti Bai. She and her two daughters even tried to pick-up quarrel with her. Om Prakash PW-1 told her mother and deceased Tarun to return to their house without insisting on repayment of money. They started for their house. When they had come out of the gate of Babulal's house, appellant Mahendra Kumar and Babulal stopped them just infront of their house. While accused Babulal caught hold of Tarun, appellant Mahendra Kumar inflicted a blow on his abdomen with the knife he had in his hand. When Om Prakash PW-1 exclaimed as to what he had done, Babulal left Tarun and caught hold of Om Prakash. Appellant Mahendra Kumar inflicted a knife blow on his abdomen as well. It is alleged that Kamal PW-6 and Pappu PW-8, who had also come there in the mean-while one after the other saw the occurrence. Pappu PW-8 then brought an auto-rickshaw from Teen Batti Chauraha and they both took Tarun and Om Prakash in it to the hospital and got them admitted. After completion of necessary investigation, a charge-sheet was filed against appellant Mahendra Kumar and co-accused Babulal and Mst. Sita Bai. After committal of the case for trial, the learned Sessions Judge framed charges for the offences under Sections 302 and 324 IPC against appellant Mahendra Kumar and for the offence u/ss. 302 r/w 34 IPC and Section 324 r/w Section 34 IPC against co-accused Babulal and Mst. Sita Bai. They all pleaded not guilty and claimed to be tried where-upon the prosecution examined 11 witnesses and got exhibited 14 documents in support of its case. On the conclusion of prosecution evidence, when the accused were examined under Section 313 Cr. P. C. , they denied the incriminating materials put to them. They, however, stated that they did not know as to why the witnesses had stated against them and they also did not lead any evidence in defence. Learned trial Judge, after hearing both the sides and on the basis of the evidence on record, found that there was absolutely no evidence against Mst. Sita Bai to connect her with the alleged crime with the aid of Section 34 IPC and the evidence against co- accused Babulal was also not sufficient and clinching to draw an inference of common intention on his part to commit the offence with which he was charged. Accordingly, the Trial Court acquitted Mst. Sita Bai and Babulal but convicted and sentenced appellant Mahendra Kumar as indicated above. Hence, this appeal by the appellant, but the State has not challenged the acquittal of other two accused persons. We have heard learned counsel for the appellant, learned Public Prosecutor for the State and have, with the assistance of the learned counsel for the parties, perused the entire record as well as the impugned judgment.
(3.) THE point for determination in this case is as to whether the finding of guilt recorded against the appellant for murder of Tarun and for voluntarily causing simple injury to Om Prakash by a sharp edged weapon vide impugned judgment and order dated 2. 3. 2001 is correct and justified or not. The prosecution has examined Dr. Ashok Mundra PW-4 to prove post-mortem report of deceased Tarun and Dr. Rajesh Sharma PW-9 to prove medico legal report of Om Prakash, the injured who sustained a simple injury by a sharp edged weapon in this occurrence. The prosecution has examined Om Prakash PW-1, Mst. Shanti Bai PW-2, Kamal PW-6 and Pappu PW-8 to prove the occurrence. Fazlu Rehman PW-5 has been produced to prove the recoveries of knife and clothes of the accused from his house. Ram Deo Dukia PW-10 was working as SHO, Police Station Mahaveer Nagar, Kota. He has been examined to prove that he initially deputed Heera Lal ASI to conduct investigation in this case but he himself took over the investigation after FIR Ex. P-14 was registered on the basis of statement Ex. P-1 and after death of Tarun in the hospital on the next morning. He added Section 302 IPC. He prepared Panchayatnama Laash Ex. P-3, site plan Ex. P-4, seized clothes of the deceased vide memo Ex. P-2 and arrested the accused persons Mahendra Kumar, Babulal and Mst. Sita Bai vide arrest memos Ex. P-7, Ex. P-9 and Ex. P-10 respectively. Dr. Ashok Mundra, who has been examined as PW-4, has deposed that in the morning on 9. 10. 1998, he had conducted post-mortem examination of the body of Tarun Kumar s/o Lal Chand Yadav in MBS Hospital, Kota and found the following external injuries:- 1. Stitched wound 16 cm long (Post operative) on anterior abdominal wall right paramedian plane; 2. Stitched wound 4 cm long oblique on right hypochondrium; 3.Drain tube present in right side lumber region. ;