SHARMA, J. - (1.) BOTH these appeals stem from the judgment dated March 23, 2002 of the learned Additional Sessions Judge Khetri District Jhunjhunu whereby the accused appellant Sanjay Kumar (for short `the accused') was convicted under Section 302 IPC and sentenced to suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for three months. The co-accused Manoj @ Lalu was however acquitted of the charge under Section 302/34 IPC.
(2.) IT is the prosecution case that Om Prakash, aged 14 years son of the informant Dhanshi Ram, was stabbed to death by accused on August 15, 1998 at 11. 00 AM. A written report was lodged at 12. 15 PM with the police station Khetri. Case under Sections 302 and 302/34 IPC was registered and the investigation commenced. Postmortem on the dead body was performed necessary memos were drawn and after usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Khetri District Jhunjhunu. Charges under Sections 302 and 302/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. In the explanation under Section 313 Cr. P. C. Sanjay and Manoj claimed innocence. In defence four witnesses were examined. On hearing final submissions the learned trial Judge convicted and sentenced the accused and acquitted co-accused Manoj @ Lalu. With the assistance of the learned counsel we have closely scrutinised the record. A look at the postmortem report (Ex. P. 16) shows that the deceased received following ante mortem injuries:- "stab Wound 3. 5 cm x 2. 5 cm x 8 cm deep Obliquely placed over 6th inter costal space on Lt. side of chest 1" away and Lat. To sternum. Pool of blood inside thorasic cage. 6th and 7th ribs are seen fractured at site of wound. There is incised wound on bone of Lt. ventside of hear corresponding to size of wound. Size of wound in heart 4 cm x 2 cm x through both sides of heart piercing across it. In the opinion of Doctor the cause of death was shock resulting from stab injury to heart. It is canvassed on behalf of the accused that the charge is not ex facie established against the accused. The written report (Ex. P. 1) and FIR (Ex. P. 2) came into existence after a long delay and it created whole prosecution case suspicious. The independent witnesses Bhim Singh and Pinto were not examined and the trial court placed reliance on the testimony of interested witnesses. Alleged recovery of weapon at the instance of the accused cannot be made basis of conviction. It was alternatively argued that there was no previous enmity between the deceased and accused, the occurrence took place all of a sudden without any premeditation and the accused has given only one knife-blow under these circumstances no case under Section 302 IPC is made out. Per contra, learned Public Prosecutor and learned counsel for the co-accused Manoj supported the impugned judgment. Learned Public Prosecutor urged that the accused was rightly convicted and sentenced. He further contended that acquittal of co-accused Manoj was illegal and he ought to have been convicted under Section 302/34 IPC. Having heard the submissions we notice tat the prosecution case is founded on the testimony of Tara Chand (PW. 2), Sanjay Kumar (PW. 3), Banwari Lal Saini (PW. 5) and Ashok Kumar Saini (PW. 7), who claimed to see the incident from their own eyes. In their deposition they stated that on August 15, 1998 while they were coming back after attending function of independence day, they saw the accused inflicting knife blow on the chest of Om Prakash. These witnesses were subjected to lengthy cross examination but their testimony could not be shattered. On examination the testimony of these witnesses from the point of view of trustworthiness we find it truthful. We see no merit in the submissions of learned counsel for the accused that since the witnesses are relatives of the informant, their testimony ought out have been discarded. It is well settled that close relationship with the victim is no ground for disbelieving a witness. A close relative who is a very natural witness in the circumstances of a case, can not be regarded as an "interested witnesses (vide Dalbir Kaur vs. State of Punjab (AIR 1977 SC 472 ). The Apex Court in State of Gujarat vs. Najibhai D. Patel (AIR 1983 SC 839) indicated that the mere fact that the witnesses were relations on interested would not by itself be sufficient to discard their evidence straightway unless it is established that their evidence suffers from serious infirmities which raise considerable doubt in the mind of the Court. In State of U. P. vs. Noorie (AIR 1996 SC 3073) the Apex Court held that in order to adjudge whether a particular witness is an eye witness or not, the court has to take into consideration following principles:- (i) Whether it was possible for witnesses to be present, and (ii) Whether there was anything inherently improbable or unreliable. In the instant case the presence of Tarachand (PW. 2) Sanjay Kumar (PW. 3), Banwari (PW. 5) and Ashok (PW. 7) appears to be natural. The incident occurred just after the function of independence day was over. The accused, deceased and the witnesses were returning after attending the function and there is nothing unnatural about the presence of the witnesses at the time of occurrence. Further more evidence of these witnesses gets corroboration from the medical evidence.
(3.) NEXT submission of learned counsel for the accused that since the FIR was not transmitted forthwith to the court of Magistrate by the Investigating agency, inference could be drawn that the accused was falsely implicated is also devoid of substance. In Surjit Singh @ Gurmit Singh vs. State of Punjab (1993 Supp. (1) SCC 208) it was indicated that the FIR lodged promptly, would not fell on the prosecution case. In State of U. P. vs. Nahar Singh (1998 (3) SCC 561) it was held that since the scribe of the FIR was not an eye witness, the case of accused was not prejudiced. We have also considered the question that whether the accused on the allegation of causing single injury on the person of deceased, could be held guilty under Section 302 IPC? It is well settled that in a murder case number of injuries is irrelevant and it is not always a determining factor in ascertaining the intention and it is the nature of injury, part of body where it is caused and weapon used which are indicators of fact whether accused had intention or not. In the instant case the accused stabbed the victim on the left side of chest 1" away and lat. to sternum. Pool of blood was found inside thorasic case, causing stab wound measuring 3. 5 cm x 2. 5 cm x 8 cm deep. Sixth and seventh ribs were seen fractured at site of wound. Size of wound in heart was 4 cm x 2 cm x through both sides of heart piercing across it. Length of knife according to recovery memo (Ex. P. 14) was more than nine inches and its blade was 4 inches long. Dr. Ranveer Singh (PW. 10), who performed autopsy on the dead body, deposed that injury was sufficient in the ordinary course of nature to cause death and the victim could not have been saved even if the immediate treatment would be available. Such an injury, in our opinion, not only exhibits the intention of the accused in causing the death of victim but also the knowledge of the accused as to the likely consequence of such attack which could be none other than causing the death of victim. Looking to the nature of injury, part of the body of the deceased and the size of the knife we are of the view that the act of the accused came under clause thirdly of Section 300 IPC and the accused was rightly convicted and sentenced under Section 302 IPC. That takes us to the submission advanced by the learned Public Prosecutor and learned counsel for the co-accused Manoj in Criminal Appeal No. 191/2003. Having closely scanned the evidence of eye witnesses, we find that Manoj @ Lalu would not have been aware of the intention of the accused Sanjay about the commission of murder. There is nothing on record to show that Manoj had knowledge that Sanjay had knife in his pocket. Sanjay Suddenly took out the knife and pierced it into the chest of Om Prakash. At no point of time Manoj appears to have shared common intention with Sanjay to kill Om Prakash. In view of this possibility it would not be safe to convict Manoj @ Lalu with the aid of Section 34 IPC and he was entitled to benefit of doubt. In our opinion learned trial court rightly acquitted Manoj @ Lalu. ;