SHYAM SUNDER BYAS,J. - (1.) ACCUSED Ganesh Giri was convicted under Section 302, IPC and sentenced to imprisonment for life with a fine of Rs. 500/ -, in default of the payment of fine to further undergo three months' rigorous imprisonment by the learned Additional Sessions Judge, Sirohi by his judgment dated June 30, 1981. The accused has come -up in appeal and challenges his conviction.
(2.) IN succinct, the prosecution case is that PW 9 Dariya Giri alias Inder Giri is the son -in -law of the deceased -victim Bheek Puri. Bheek Puri had no issues other than his daughter married to Dariya Giri. Dariya Giri was, therefore, living with Bheek Puri in his village Udwadiya as his resident son -in -law (GHAR JANWAl). Dariya Giri had a brother by name Shokh Giri. The accused is the son of Shokh Giri and, thus, the real nephew of Dariya Giri. When the accused was nearly of five years in age, his father Shokh Giri passed away and on his death, his mother contracted second marriage. There, thus, remained none to look -after and bring -up the accused. Dariya Giri took pity on him and with the permission of Bheek Puri, brought him in village Udawadiya, The accused started living in the family of the deceased Bheek Puri and was brought -up there. A day, before the incident (August 13, 1980), Bheek Puri reprimanded the accused and Dariya Giri for not bringing the carpenter. It is alleged that the accused could not swallow and digest the insult of bis being reprimanded by Bheek Puri. At about 8.00 or 8.30 a.m. on May 13, 1980, PW 7 Shanker Nai PW 8 Chela Kalbi and the deceased Bheek Puri were sitting in the Varandah of the Panchayat Bhawan. PW 6 Bheema Ram Lohar was then standing out -side his shop situate in front of the Varandah of the Panchayat Bhawan. The accused suddenly came there with a Jatroo in his hand. He struck a blow on the right hand and another blow on the head of Bheek Puri with his Jatroo. Bheek Puri fell down. Bheema Ram, Shanker and Chela Kalbi tried to catch hold of the accused, but he managed to run away. These persons took Bheek Puri to his house. PW 6 Bheema Ram sent his brother to Sanwara to bring the doctor from there. PW 13 Dr. J.M. Lodha, who was then posted in the Government Dispesary Udwadiya came at about 11.30 a.m. While the doctor was coming giving treatment to Bheek Puri, Bheek Puri succumbed to the injuries. PW 6 Bheema Ram drew up report Ex. P 2 of the incident and left to go to the Police Station, Anadra. When he reached village Sirodi, he found the Head Constable Ganikhan(PW 10) there at the bus stand. He submitted report Ex. P 2 to him. The report was sent to the Police Station, Anadra, where a case was registered. PW11. Mohammed Iqbal, A.S.I. Police, was directed by the Superintendent of Police to conduct investigation in the case. He arrived on the spot in the morning of May 14, 1980. He inspected the site, prepared the site inspection memo and the inquest report of the victim's dead body. The post -mortem examination on the victim's dead body was conducted by PW 13 Dr. Lodha. He found the following ante -mortem injuries on the victim's dead body: External - - (1) Lacerated wound 1/2' x 2/10' x bone deep compound fracture upper l/3rd shaft of right numerous with obvious deformity of right arm.Internal - -(1) Ecchymosis and depressed fracture of left parietal region of scalp. There was comminuted depressed fracture (four/five pieces) on the left parietal bone extending over whole of the right parietal bone tapering about 8' in length. The doctor was of the opinion that the cause of death was shock and haemorrhage due to the infliction of severe head injury. The post -mortem report issued by the doctor is Ex. P 17. The accused was arrested on May 10, 1980. The blood -smeared clothes of the deceased and the Jatroo lying on the site of the incident was seized and sealed. On the completion of investigation, the police presented a challan against the accused in the court of Munsif cum Judicial Magistrate, Sirohi, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed a charge under Section 302, IPC against the accused, to which he pleaded not guilty and claimed absolute -innocence. According to him, he was falsely implicated by his uncle Dariya Giri, who wanted to unlawfully usurp his property. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, the accused adduced no evidence. Out of the thirteen witnesses, examined by the prosecution, PW 6 Bheema Ram, PW 7 Shanker Nai and PW 8 Chela Kalbi are the ocular witnesses of the incident, each of whom has claimed to have seen the occurrence from its commencement to the end. The learned Sessions Judge held the testimony of these three eye witnesses trustworthy and reliable. Since the medical opinion was that the head injury was sufficient in the ordinary course of nature to cause death, the learned Sessions Judge took the charge under Section 302, IPC duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned at the very out -set. Aggrieved against his conviction, the accused has taken this appeal.
(3.) WE have heard Mr. S.R. Singhi learned Counsel for the accused and Mr. LAS Udawat the learned Public Prosecutor. We have also gone through the case file carefully.;