SHYAM SUNDER BYAS,J. - (1.) ACCUSED Mahaveer 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 by the Sessions Judge, Bikaner by his judgment dated January 30, 1981. He has come -up in appeal and challenges his conviction.
(2.) BRIEFLY recalled, the prosecution case is that PW 5 Smt. Shakuntala is the daughter of PW 1 Mamraj of village Chak 16 -B.D. District Sri Ganganagar. Smt. Shakuntala was married to accused, somewhere 18 months before the incident. The deceased -victim Balram, aged about 20 years, was the son of PW 1 Mamraj. The relations between Smt. Shakuntala and the members of the husband's family were not happy. They used to take her to task off and on as she had not brought dowry from her parents. The accused was also not kind to her and used violence at times. Smt. Shakuntala, finding herself in these torturous circumstances, left her husband's house and came to her parents to live with them. This enraged the accused. Balram left his house at about 10.00 a.m. on Aug. 4, 1979 to go to 14 -B.D. as he had some eye trouble. At 14 BD, the accused met him at the house of PW 9 Chandan Ram. Both of them exchanged greetings. Accused Mahaveer was having a naked sword with him while Balram had a bicycle. From there they went to the shop of PW 6 Khemraj, where Balram purchased Biri and a match -box. From there they went towards the canal. At about 3.00 p.m., the accused and Balram were going together towards 365 -Head. The accused was sitting on the front bar of the bicycle while Balram was paddling it. They were proceeding on the Kacchi Patri running along with the canal. When they proceeded further, both of them got down from the bicycle on account of sand on the Patri. While they were proceeding on foot, accused Mahaveer made an assault on Balram and landed blows to him with his sword. He struck blows with the sword on the head and other parts of Balram. Balram dropped the bicycle and took to his heels. The accused followed him and continued to strike blows to him with his sword. Balram raised cries. Due to the infliction of injuries, Balram fell down. PW 7 Hari Kishan, who is the uncle of Balram, happened to pass that way. He challenged the accused. The accused ran away towards 365 Head, taking the sword with him. While running away, the accused threatened Hari Kishan that as his life has been rained by his parents -in -law, he would kill each of them. Hari Kishan went to Balram, who had numerous bleeding wounds on his body. Hari Kishan found that Balram was no more alive. He went to his brother PW 1 Mamraj and apprised him of the incident. Mamraj collected some persons and came to the spot where the dead body of his son Balram was lying. He kept some persons there to keep a watch on the dead body and himself went to the Police Station, Chhatargarh, where he reached at about 9.00 a.m. on August 5, 1979. He verbally lodged report Ex. P 1 of the occurrence there. It may be mentioned that the distance between the place of the occurrence and the police station is nearly 19 kilometers. The police registered a case and proceeded with investigation. The Station House Officer, who was at Bikaner on that day, was contacted on telephone. He reached Chhatargarh on the same day at about 1.00 p.m. From there, he arrived at the scene of the occurrence and prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site plan. The bloodstained soil was seized and sealed. The post -mortem examination of the victim's dead body was conducted on the spot by PW 8 Dr. R.S. Rathore, the then Medical Officer Incharge, Government Dispensary, Chhatargarh. He noticed the following injuries on the victim's dead body: External (1) Incised wound on right shoulder 1' x 1/4' x 1/4'; (2) Incised wound on right arm outer aspect 4'x 1/4'x 1/4'; (3) Incised wound on right palm 4' x 1/4' x bone deep; (4) Incised wound on right fore -arm outer aspect l -1/2'x 1 -1/2'x 1/2' (skin and muscles were gaping); (5) Incised wound below right ear 4' x 3/4' x 1/2'; (6) Incised wound behind right ear 2 -1/2' x 1' x 1/2'; (7) Incised wound on neck right side lateral aspect 4' x 2' cutting verticular column. In this wound trachea, muscles and vessels, spinal cord and vertebreas were cut through; (8) Incised wound cutting scalp bone width 1'; (9)Incised wound on outer and lateral aspect of leg 1 -1/2'x 1'x 1/2'; (10) Spinal cord cut in clavical region. External - There was fracture of vertebral column in clavical region. Cut on frontal bone. Fracture of all meta -tarsal bones on right foot. The doctor was of the opinion that the cause of death of the victim was' bl vkneh dh ekSr cervical rescin xnZu dk ?kko gS ftl dkj.k vertebra gks x;h gS lkFk es lkal dh uyh o spinal cord Hkh dV xbZ A The post -mortem examination report prepared by him is Ex. P 21. The accused straight -way went from the place of occurrence to the Police Out Post 365 Head and lodged report Ex. P. 5, stating therein that he had committed the murder of his brother -in -law Balram. After sometime, PW 11 Umed Singh, the Station House Officer, Police Station, Gadsana came there and arrested the accused. He was wearing one shirt and one Tehmad, on which Umedsingh noticed blood -stains. Both these clothes were seized and sealed. The Investigating Officer went to the Police Out Post 365 Head and took the accused in his custody. On the information furnished by the accused at about 9.00 a.m. on August 6, 1979, one sword containing some blood -stains was seized. The recovered articles were sent for chemical examination. Blood was detected on the sword and the clothes of the accused. The blood on the Tehmad was found to be human, but the origin of the blood on the shirt and sword could not be determined as the bloodstains were disintegrated. On the completion of investigation, the police presented a challan against the accused in the Court of Judicial Magistrate, Bikaner, who, in his turn, committed the case for trial to the Court of Sessions. The Sessions Judge framed a charge under Section 302, IPC against the accused, to which he pleaded not guilty and claimed absolute innocence. He denied his hand in the murder of Balram and claimed that he was at his house at the time when the incident is alleged to have taken place. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, the accused examined two witnesses in support of his plea of alibi. On the conclusion of trial, the learned Sessions Judge held the charge satisfactorily proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out -set.
(3.) WE have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone through the case file.;