S. K. SHARMA, J. - (1.) INSTANT appeal filed by the accused appellant Murlidhar is against the judgment dated 3. 07. 2001 passed by Addl. Sessions Judge, No. 2, (Fast Track), Kota whereby he convicted the appellant for the offence punishable under section 302 IPC and sentenced him to undergo life imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo three months RI.
(2.) THE brief facts which are relevant and essential for the disposal of this appeal are as under : Pw 1 Gajanand lodged a written report Ex. P-1 before SHO PS Sangod District Kota wherein he has written that in the last night he was sleeping at his home, in the night at about 2 PM Murlidhar and Daulatram came and Murlidhar asked him to accompany with him to his home. Murlidhar told him that he slept his wife Santosh and after that she went to urination and she fell down and some stones fell upon her and she died. Thereafter Gajanand and Daulatram and Murlidhar went to the house of Murlidhar where father of the accused, Madan Lal told him that the accused appellant has killed his wife. At that time sister-in-law of accused namely Anokhbai was also present. She also said that accused has killed his wife Santosh. On this report, police registered a case for the offence under section 302 IPC. Statements of witnesses under section 161 Cr. P. C. were recorded. Site plant was also prepared. Autopsy was done on the body of deceased Santosh. Blood stained trousers of accused was seized. One `kudali' was also seized by the police. Doctor has also examined the injury on the person of Anokh Bai and prepared a injury report Ex. P-13. Accused Murlidhar was arrested and after completion of the investigation, challan was filed before the concerned Magistrate against accused Murlidhar for the offence under section 302 IPC wherefrom the case was committed to Sessions Judge, Kota and ultimately the case was transferred to Addl. Sessions Judge No. 2 (Fast Track), Kota. In this case prosecution has examined as many as 17 witnesses namely Gajanand PW-1, Pushpdayal PW-2 Kishgopal PW-3, Babulal PW-4, Parmanand PW-5, Moolchand PW-6, Daulatram PW-7, Dhannalal PW-8, Mohanlal PW-9, Vilasibai PW-10, Mangilal PW-11, Dr. Laxminath Meena PW-12, Chouthmal PW-13, Chandrakant Yadav PW- 14, Nihal Ahmed PW-15, Bhajanlal PW-16 and Anokh Bai PW-17. Statement of accused Murlidhar was recorded under section 313 Cr. P. C. Accused has not examined any defence witness. Arguments were heard and ultimately the Addl. Sessions Judge, No. 2 (Fast Track), Kota has convicted the accused for the offence under section 302 IPC and sentenced him as indicated hereinabove. Aggrieved by this judgment, accused appellant has filed this jail appeal in which amicus curiae was appointed. Arguments of both the parties have been heard. Learned Amicus Curiae argued that the prosecution has not proved offence under section 302 IPC against the appellant. It is argued by him that this conviction is merely based on the testimony of PW-17 Anokh Bai. It is also argued that the statement of Anokh Bai is not trustworthy. It is also argued that deceased Santosh fell down and some stones fell upon her and she died because of injuries received by those stones.
(3.) ON the other hand, learned Public Prosecutor has argued that statement of Anokh Bai is wholly reliable and there is no reason to disbelieve the same. She was sleeping in the same room in which this incident occurred. It is also argued by the learned Public Prosecutor that this witness has also received some injuries on her hand and this fact is corroborated by the statement of Dr. Laxmi Nath Meena and injury report Ex. P-13. The learned public Prosecutor has also argued that statement of Anokh Bai is also corroborated by the statement of PW-3 Kishgopal. He has also argued that the accused appellant Murlidhar has not explained any incriminating circumstance put to him in the statement under section 313 Cr. P. C. It is also argued by learned Public Prosecutor that Gajanand PW-1 has turned hostile but even then he has proved the written report Ex. P-1. It is also argued that the statement of Anokh Bai is also supported by the statement of PW-8 Dhanna Lal where he says that on hearing cry he went to the house of Murlidhar where Murlidhar was standing and Murlidhar asked him to go out and sister-in-law of accused was weeping and wife of Murlidhar was lying dead. It is also argued by learned Public Prosecutor that the case of the prosecution is also corroborated by the statement of Dr. Laxmi Nath Meena PW-12 who has conducted autopsy on the body of the deceased Santosh. He found following injuries on the person of deceased : 1. Lacerated wound 2" x 1" bone deep & multiple fractures of Rt. parietal & temporal bone with haematoma seen. 2. Lacerated 1/1/2" x 1/2" bone deep with multiple fracture of Rt. frontal bone of skull. 3. Lacerated wound 1/1/2" x 1/2" bone deep with fracture of under lying bone on Rt. Supra orbital region of bone. 4. Lacerated wound 1/1/2" x 1/2" x bone deep with multiple fracture of Rt. maxillary bone of face. 5. Lacerated wound size 2" x 1/2" bone deep with multiple fractures at Lt. Maxillary bone. 6. Lacerated wound 2" x 3/4" bone deep with of under lying over Lt. supra orbital region. 7. 1/1/2" x 1/2" x bone deep over vertex position with fracture of underlying bone. 8. Lacerated wound 1" x 1/4" x bone deep with fracture of underlying of Rt. maxilla. 9. Lacerated wound 1/2" x 1/4" x thickness of upper lip. 10. Bruise 3" x 1" Rt. shoulder frontal aspect. Doctor Laxmi Nath Meena has also deposed that these above all injuries were Ante mortem. It is also argued that in this case investigating officer has also been examined. It is also argued that accused was also examined under section 313 Cr. P. C. but he has not given any explanation about any of the incriminating circumstance appearing in evidence against him. ;