SHYAM SUNDER BYAS,J. - (1.) THE appeal is directed against the judgment of the learned Additional Sessions - Judge, Nagaur dated December 17, 1980, by which the appellant Gulam Hussain was convicted under Section 302, IPC and sentenced to imprisonment for life with a fine of Rs. 300/ -, in default of the payment of fine to further undergo three months rigorous imprisonment.
(2.) BRIEFLY put, the prosecution case is that at about 830 p.m. on August 17, 1979, PW 1 Safi Mohammed, PW 4 Abdul Rehman, PW 7 Mohammed Yakoob, PW 10 Noor Mohammed and the deceased Abdul Sakoor were sitting on the Chabutari of one Ismail Lohar situate near Loharpura Chowk, Nagaur and were talking about the crops. PW 2 Usman was also standing nearby and PW 3 Mohammed Ali was standing out side his hotel situate nearby. While they were talking, Naina (co -accused convicted under Section 323, IPC) came there and asked Safi Mohammed (PW 1) as to why he had poured down the milk carried by his son Yusuf (co -accused, but acquitted) in a drum. PW 1 Safi Mohammed expressed his ignorance. At that very time, Naina's sons Gulam Hussain (appellant) and Yusuf came there. Accused Naina had a stick with him. He started striking blows to Mohammed Usman(PW 2) and Mohammed Yakoob (PW 10) with the stick. The deceased Abdul Sakoor, who was standing nearby, tried to intervene. Thereupon accused Gulam Hussain struck a blow on the right thigh of Abdul Sakoor (mentioned also as Sakoor) with a knife. Accused Gulam Hussain thereafter plunged the knife in the chest of Abdul Sakoor. Abdul Sakoor fell down. The three miscreants Naina, Yusuf and Gulam Hussain ran away from the spot.Abdul Sakoor was immediately taken to the hospital. He, however, did not survive and passed away at about 9.30 p.m. on the same day. PW 7 Mohammed Yakoob went to police station, Kotwali, Nagaur and presented written report Ex. P. 6 of the occurrence at about 2.40 p.m. on the same day. The police registered a case and proceeded with investigation. The Investigating Officer Mod Singh (PW 15) immediately reached the hospital and posted some constables there near the dead body of the deceased Abdul Sakoor. He also posted some constables at the place of occurrence. Since it was night, the site could not be inspected at that time. The Station House Officer inspected the site in the next morning and prepared site plan. He also prepared the inquest report of the victim's dead body. The post mortem examination of the victim's dead body was conducted at about 8.40 a.m. on August 18. 1979 by the Medical Jurist Dr. Bheem Singh (PW 9). He noticed the following ante -mortem injuries on the victim's dead body: External: (1) Penetrating wound 2.5 cm. x 1 cm. x 1.5 cm. on lower part of left border of steraum undermined margius; (2) Penetrating wound 2.5 cm. x 1.6 cm. x 10 cm. on the posterior aspect of right thigh in the middle undermined margins. Internal: (1) There was a cutting -penetrating wound in the left 5th intercostal space 5 cm. x 1 cm. in size, starting from left border of steraum, going outside cutting all the structures of chest wall. There was no injury to ribs or cartileges. In the opinion of Dr. Bheem Singh, the death of the victim had resulted from internal haemorrhege caused by penetrating wound on heart which was the result of penetrating (stab) wound of chest wall. The postmortem examination report prepared by him is Ex. P. 10. The injuries of PW 2 Mohammed Usman and PW 7 Mohammed Yakoob were also examined by Dr. Bheem Singh. Three simple injuries were found on the person of Mohammed Usman and two injuries were found on the person of Mohammed Yakoob. These injuries were opined to have been caused by some blunt object like Lathi. The injury reports are Ex. P. 11 and Ex. P. 12. In consequence of the disclosure statement made by the appellant on the same day, Jambhiya (knife) Article 1 was recovered. The blood stained clothes of the deceased -victim Abdul Sakoor and the blood stained shirt of accused Gulam Hussain were also seized and sealed. On the completion of investigation, the police submitted a challan against Naina, Yusuf and Gulam Hussain in the Court of the Chief Judicial Magistrate, Nagaur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed charges under Sections 302 and 326, IPC against accused Gulam Hussain, under Sections 302/34 and 324/34, IPC against accused Yusuf and under Sections 302/34, 324/24 and 323 IPC against accused Naina. The accused pleaded not guilty and claimed to be tried. The case came for trial before the learned Additional Sessions Judge, Nagaur. In support of its case, the prosecution examined 15 witnesses and filed some documents. In defence, two witnesses were examined. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating evidence against accused Yusuf for any offence. He was consequently acquitted of the offence he was charged with. The learned Additional Sessions Judge also found no case is made out against accused Naina under Sections 302/34 and 324/34, IPC. The charge under Section 223, IPC was, however, held proved against him. Accused Gulam Hussain was found guilty under Section 302 IPC. Consequently, accused Gulam Hussain was convicted and sentenced as mentioned above. Accused Naina was convicted under Section 323, IPC, but was let -off on probation of good conduct. Aggrieved against his conviction and sentence, accused Gulam Hussain has come up in appeal.
(3.) WE have heard M/s J.R. Chaudhary and Doongar Singh learned counsel appearing for the appellant and Mr. G.M. Chandari, the learned Public Prosecutor for the State. We have also gone through the case file carefully.;