N.C.Kochhar, J. - (1.) The appellant was prosecuted under Section 302 of the Indian Penal Code (IPC), besides under Section 4/25 of the Arms Act, 1959 (the Arms Act), in Case FIR No. 58/93, of Police Station Virat Nagar, District Jaipur, and the learned Additional Sessions Judge, Kotputli, vide his impugned judgment dated 28th October, 1994, has acquitted him of the charge under Section 4/25 of the Arms Act, but has convicted him under Section 302, IPC and vide the impugned order of the same date, has sentenced him to undergo imprisonment for life and to pay a fine in the sum of Rs. 1,000/-, and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. The prosecution story, in short, was as under:
(2.) On the morning of 7th July, 1993, at about 6 a.m., PW 3, Laxman Singh (the complainant) went to Police Station Virat Nagar and presented to PW 16, Head Constable Maliram, who was then senior-most official at the Police Station, a written report (Ex. P.17), stating that he was resident of Jaisinghpura and that they were three brothers; two of them; namely, he himself and Kishan Singh (the deceased), had been residing together, whereas; their third and elder brother, Bharat Singh (the appellant) had been residing separately. At about 9 p.m. the previous night, the deceased had consumed liquor and under the influence thereof, he was hurling abuses at the family-members and in spite of he and the appellant trying to pacify the deceased, he did not stop doing so and, as such, the appellant got angry, but was pacified by the complainant and the appellant went to his house but returned to the house of the complainant at about 12 p.m. and told him that the deceased was continuing hurling abuses and wanted to ruin the family, but the complainant told him that the deceased would automatically go to sleep and that the appellant should go to his house and thereafter, the complainant himself went to sleep. At about 4-4.30 a.m., because of slight rain, the complainant got up but did not find the deceased sleeping on his cot, and thinking that he must have gone inside his room to sleep, the complainant went inside his own room and slept there. After some time, he heard the cries of the wife of the deceased, from the GaliT, by the side of his house and when he, along with his wife, rushed there, they saw that the deceased was lying there, with his neck chopped off and blood was lying at the spot. He covered the dead-body with a rag and raised alarm, but no one came there, and he went to the house of the appellant, to inform him about it, but did not find him there. He reported that someone had killed his brother by cutting his neck, with a sharp-edged weapon and that he had come to the Police Station to lodge the report. Head-Constable Maliram made an endorsement at the foot of Ex. P. 17 and registered a case vide formal FIR No. 58/93 (Ex. P.18), under Section 302, IPC. The Head-Constable thereafter went to the spot, where he prepared a Tpanchnama (Ex. P.20) in respect of the dead body of the deceased. In the meanwhile, the Circle Officer, Deputy Superintendent of Police, Shri Ranjit Khan (the Investigating Officer) reached the spot and took over the investigation. He inspected the spot and prepared the site-plan (Ex. P.19). He took into possession the bloodstained earth and plain earth vide memo (Ex. P.22). The rag, with which the dead body of the deceased had been covered, was taken into possession by the Investigating Officer, vide memo (Ex. P.25). The Investigating Officer also took into possession a glass-bottle, containing liquor and a steel-glass vide memo (Ex. P. 24). He arrested he appellant at about 12.15 p.m. and prepared the arrest-memo (Ex. P.29) in this regard in presence of the witnesses. At the time of his arrest, the appellant was wearing a Pajama, having blood-stains on its lower portion and the Investigating Officer took it into possession vide memo (Ex. P. 23). During the course of interrogation, the appellant made a disclosure-statement (Ex. P.28) and got recovered a Pharsi from inside the well, known as Bandaka-Kuan, situated outside the village and the Pharsi was taken into possession by the Investigating Officer vide memo (Ex. P.27). The Investigating Officer got photographed the scenes of the occurrence as also the recovery of the pharsi and the photographs (Exs. P.2 to P.16) were taken by the photographer at the spot The Investigating Officer recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure 1973, (the Code) and sent the dead-body of the deceased for postmortem examination, which was conducted by Dr. Yogiraj Nainpuria (PW 1) and Dr. Kantilal Chawda (PW 18). The doctors found the following injuries on the person of the deceased: 1. Sharp would present on upper and posterior region of right shoulder region, measuring about 22 cms. x 7 cms. x deep into bone, oblique in position (skin, muscles and bone-chips are absent). Blood-clots are present over and inside the wound. 2. Sharp wound present on upper part of left shoulder region, measuring about 10 cms. x 31/2 cms. x deep upto bone. Transverse in position. Blood clots are present on and inside the wound. 3. Sharp wound present on neck at the level of 1st carnical vertibrae on posterior side and just above the thyroid cartilage on anterior side. It has cut all the organs of neck at the site of would except small piece of skin (about 5 cms.) on anterior and mid-line. The organs are cut as follows:- skin, muscles, 1st carnical vertibrae, spinal cord, big vessels and nerves laryanx, oesophagus, muscles and skin from posterior to anterior. Blood-clots are present in and outside the wound. They opined that the cause of death was shock, due to sharp injury to all vital organs at neck (as trachae, oesophugus, big vessels, spinal cord). They further opined that all the injuries were ante-mortem in nature. After completion of the investigation, the challan was flied in the Court of the learned Munsif and Judicial Magistrate Virat Nagar, who committed the case to the Court of Sessions, where, after the trial, the appellant was convicted and sentenced as noted above. Feeling aggrieved, the appellant has filed this appeal from the jail, through the Superintendent, Central Jail, Jaipur, and Shri Jinesh Jam Advocate had been appointed as amicus curiae, to argue the case on his behalf.
(3.) We have heard Mr. Jinesh Jam for the appellant, the learned Public Prosecutor for the State and have also perused the record of the case.;