SHASHI KANT SHARMA, J. - (1.) INSTANT appeal has been filed by the accused appellant Hardayal against the judgment dated 23. 6. 2000 passed by the learned Addl. Sessions Judge, Kishangarh, Ajmer whereby the learned Addl. Sessions Judge convicted the accused appellant Hardayal for the offence under Section 302 IPC and sentenced him to undergo life imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo six months R. I.
(2.) MS. Neelu Mathur was appointed as amicus curiae for appellant and arguments were heard. The brief facts which are relevant and essential for the disposal of this appeal are as under: Pw-13 Manbhar Devi has lodged a written report Ex. P-1 on 1. 6. 98 at 7 a. m. to SHO Police Station Bandara Sindari District- Ajmer wherein it was alleged that her husband was working in Municipality and on 31. 5. 98 he came his home at Harmada. It was also alleged that in the night her husband was sleeping on the roof of the house. In the morning at about 5. 30 am, she went there and her husband told her that he was just coming then she came down. At the same time, her brother in law (Devar) accused Hardayal went up on the roof and after some time she noticed that blood was coming through drain. She rushed to the roof and saw that the neck of her husband was cut and her brother in law accused Hardayal was running and he was having something like axe (Kulhadi) in his hand. She cried. Many persons namely Bhanwarlal, Moduram, Kanaji and her mother in law came there. It was also alleged in First Information report that on previous occasion also accused has beaten her husband and her father in law. It is also alleged that because of animosity, accused has killed her husband. On this FIR, police registered a case for the offence under Section 302 IPC. Police came on the spot. Police prepared site plan and arrested the accused and recovered an axe (Kulhadi) and also one Baniyan on his information and at his instance and after completion of the investigation police filed challan before concerned Magistrate for the offence under Section 302 IPC. Wherefrom case was committed to the court of Addl. Sessions Judge, Kishangarh, Ajmer where the case was tried. After hearing the charge arguments, the learned Trial Court framed charge under Section 302 IPC against the appellant Hardayal. Accused denied charges and claimed trial. Prosecution has examined as many as 16 witnesses namely PW-1 Harish Chand, PW-2 Bhanwarlal son of Ramchandra, PW-3 Heera Lal, PW-4 Bhanwarlal son of Heera, PW-5 Kanaram, PW-6 Buddaram, PW-7 Dr. Gopal Mathur, PW-8 Rahul Joshi, PW-9 Shankar Pal Singh, PW-10 Bhanwarlal Kachhawa, PW-11 Kalyan, PW-12 Ranjeet, PW-13 Manbhar Devi, PW-14 Ramdev, PW-15 Banna Lal and PW-16 Bhanwar Singh. Accused appellant was examined under Section 313 Cr. P. C. He did not examine any defence witness. Arguments were head and Trial Court convicted the accused as mentioned here in above. Arguments were heard.
(3.) LEARNED Amicus Curiae has argued that prosecution has not proved any offence against the appellant beyond reasonable doubt. She has contended that prosecution could not prove any motive behind this murder. It is also contended that there is no eye witnesses of this occurrence and conviction is based only on circumstantial evidence. It is also argued that witnesses produced by the prosecution are not reliable and appeal should be allowed and conviction and sentence should be set aside. Learned Public Prosecution has argued that Trial Court has rightly convicted the accused appellant for the offence under Section 302 IPC. Accused has committed murder of his brother deceased Nandlal because of dispute of property. It is also contended that witnesses examined by the prosecution are reliable. Many witnesses have seen the accused person going from the place of occurrence. Blood stained axe (Kulhadi) has been recovered on the information and at the instance of the accused. Police has also recovered blood stained Baniyan of the accused on his information and at his instance. Prosecution story is corroborated by the medical evidence. It is also contended by the learned Public Prosecutor that PW-5 Kanaram is very importance witness. After committing this crime, accused met him on the way and confessed before him that he has finished Nandlal. We have considered the rival contentions of both the parties. According to prosecution, accused appellant Hardayal has committed murder of his brother deceased Nandlal. PW-12 Ranjeet Singh who is son of the deceased has said in his statement that there was dispute about partition between his father and accused Hardayal. He has clearly stated in the statement that accused has committed murder of his father because of dispute about partition. This fact is also corroborated by the statement of PW- 13 Manbhar Devi. The accused in his statement recorded under Section 313 Cr. P. C. stated that witnesses wanted to grab his property. After reading the entire prosecution evidence and the statement of accused recorded under Section 313 Cr. P. C. , it becomes clear that there was dispute relating to property and in our considered opinion, motive is clearly established by the prosecution. ;