KOKJE, J. - (1.) THE appellant was convicted under Sec. 302 of the Indian Penal Code and was sentenced to life imprisonment. He challenges the conviction and sentence in this appeal. THE case against the appellant was that on 4. 7. 93 at about 8. 30 to 8. 45 AM he went to deceased Ramsingh, scolded him and gave two knife blows to him which caused his death. Prem Singh, brother of the deceased lodged a FIR at 9. 45 AM at police station Pratap Nagar, Jodhpur which is at a distance of two kilometers from the place of occurrence. It was stated in the FIR that when Prem Singh and Ram Singh had gone some distance away from their house at about 8. 30 to 8. 45 on 4. 7. 93 and were entering the lime stone powder alongwith Kansingh, the accused appellant came there and scolded Ramsingh with the words "rsjs fnekx esa xehz T;knk gs D;k'' and taking a knife out of his pocket inflicted two injuries on the abdomen of Ramsingh. THE appellant Babu's younger brother Bheru also arrived on the spot. On alarm being raised by Prem Singh and Kansingh, Mahendra Singh and Doonger Singh came on the spot and Babu and Bheru ran away from the spot. It was further alleged in the FIR that on hearing the alarm Bhanwaria and Bhuria belonging to accused appellant Babu's party also came to the spot running and they pelted stones on the complainant party. After receiving injuries Ramsingh went some distance and fell down unconscious. By that time people from nearby also arrived on the spot. Ramsingh was put in a taxi and taken to Mahatama Gandhi Hospital, but immediately on reaching the hospital he died. It was stated in the FIR that Babu used to extort money from Kansingh & used to force him to give him pouches of Gutkha. On this there was a quarrel between these two 4, 5 days prior to the incident. According to Prem Singh, Babu had caused fatal injuries to Ramsingh because of this quarrel.
(2.) THE prosecution examined PW-6 Prem Singh and PW-9 Kansingh as the eye witnesses. PW-1 Mahesh Sharma, PW-4 Mohan Singh, PW-5 Roop Singh had not seen the assault, but had immediately reached the spot. THE witnesses of the memoranda prepared during investigation, the investigating officer, the Doctor who conducted the autopsy, were the other witnesses. THE accused appellant did not take a specific defence in statement under Sec. 313 of the Code of Criminal Procedure, but led evidence of two witnesses DW-1 Raju and DW-2 Maga Ram who admitted the presence of appellant Babu on the spot, but gave a totally different version about Ramsingh receiving injuries. Let us first discuss the evidence of eye witnesses PW-6 Prem Singh and PW-9 Ramsingh. PW-6 deposed that on the date of incident three brothers Ramsingh, Premsingh and Kansingh went to the spot where their house was being constructed. THEy were watering lime stone powder when Babu came and accosted Ramsingh with the words `` '' and inflicted two knife injuries in the abdomen of Ramsingh. On his raising alarm people from the locality collected there. Ramsingh ran towards his house, Bhuria, Bheru, Bhanwaria pelted stones on them. Ramsingh fell down on the way and their father also came there. Ramsingh was put in a taxi and taken to hospital where he was declared dead by the doctors. A report was lodged in the police station. This witness also stated that accused appellant Babu used to extort money and Gutkha from Kansingh and Ramsingh had gone to the accused and warned him not to do so. This according to the witness was the reason for the attack. A definite suggestion was given to this witness in cross- examination that Mahendra Singh and Doonger Singh had come on the spot with a knife and they had assaulted Babu with the knife, but instead of Babu knife hit Ramsingh and Mahendra Singh and Doonger Singh ran away with the knife. THE witness denied the suggestion. THE learned counsel for the appellant submitted that this witness was totally unreliable for the reason that he contradicts the FIR by stating that he did not know Mahendra Singh and Doonger Singh and also states that they had not come on the spot. It is also submitted on behalf of the appellant that the witness said that four hours were taken in getting the report lodged, on this basis it is submitted that the FIR is clearly lodged after investigation had begun because the witness Premsingh had gone first to Mahesh Sharma's house which was two kilometers away from the spot and then went to police station with him. According to learned counsel in the circumstances it was not possible to lodge the report within an hour at 9. 45 A. M. It was also submitted that the witness has admitted in the cross-examination that Raju, Banarasi, Shanti, Bhanwarlal, Bheria, Magraj and Abdul Rehman were present on the spot and none of these independent witnesses was examined. In any case Abdul Rehman's presence on the spot was specifically admitted by this witness, but he was also not examined. Pw 9 Kansingh corroborated the statement of Premsingh. After the incident Kansingh went to his brother Mohansingh and Mohan Singh went to the spot alone on a Scooter. The witness also stated that Babu used to extore money and Gutkha from him, Ramsingh scolded Babu for this and Babu had threatened Ramsingh. The learned counsel for the appellant submitted that this witness stated that Ramsingh had fallen down with the knife still in his body which was not a fact as no knife was recovered from the body. The witness has also denied the presence of Doonger Singh and Mahendra Singh on the spot when their presence was recorded in the FIR. The witness also denied the suggestion that Doonger Singh and Mahendra Singh had attacked Babu, but accidently Ramsingh was hit. Pw-1 Mahesh Sharma scribe of the FIR deposed that Kansingh had come to him on 4th July between 8. 30 to 8. 45 a. m. and told him that Ramsingh had received a knife injury. On this Mahesh Sharma went with Ramsingh's brother Mohansingh to the spot, where Ramsingh was lying with his head in the lap of his father. He was taken in a taxi to the hospital, where he was declared dead. On this Mahesh Sharma Prem Singh and Banshi went to Pralap Nager Police station. Mahesh shrma wrote the report as per dictation of Prem Singh and it was presented to the police. The learned counsel for the appellant submitted that Kansingh did not name Babu as the assailant while giving information to this witness. It was also contended that Kansingh himself had not said that he had gone to this witness, but had stated that he had informed Mohansingh who had alone gone on Scooter to the spot. Pw-5 Roop Singh, father of the deceased deposed that Ramsingh had gone at about 8. 00 AM to the plot where the new house was being constructed. The witness started 20 to 25 minutes afterwards for the same place from his house. When he had covered half the distance he saw that Ramsingh was coming running towards him. On being asked he told the witness that Babu had given him two knife blows. He was bleeding when he fell down. The witness put his head in his lap. People collected on the spot. The witness asked the people to fetch a taxi and then Ramsingh was taken to the hospital where he was declared dead. The learned counsel for the appellant submitted that if this version of oral dying declaration had been correct it should have found place in the FIR because before lodging the FIR Prem Singh, Kansingh and Mahesh Sharma had met this witness Roop Singh and he should have told them about the oral dying declaration. It was also submitted by the learned counsel for the appellant that this witness had stated that Ramsingh was bleeding when he fell down and if the witness had taken him in his lap, blood stains should have been there on the clothes of the witness also. It was also stated that there was no trail of blood on the spot where the deceased was hit and the spot up to which he walked and fell down. According to the learned counsel for the appellant therefore, this witness was also unreliable. As to the witnesses in support of recovery of the weapon, it was contended that when Pw-2 Bherulal stated that no weapon was recovered at the instance of accused Babu in his presence, he should have been declared hostile by the prosecution. Similarly, when Pw-3 Hardan stated that Bheru Ram and himself called to the police station, certain documents were got signed from them without disclosing what those documents were he was also not declared hostile in cross-examination. Thus, according to the learned counsel for the appellant no legal evidence of the recovery from the accused is on record.
(3.) THE learned counsel for the appellant thus submitted that independent eye witnesses were not examined though they were available. THEre were material contradictions in the versions given by the eye witnesses in the Court and the story given in the FIR rendering the testimony of eye witnesses wholly unreliable. THEre were no blood stains found on the clothes of PW 5 who claimed to have had taken the deceased in his lap. THEre was no trail of blood from the spot where the injuries were inflicted and the place up to which the deceased walked. According to the learned counsel the prosecution must fail because of all the above shortcomings in the prosecution case. On the other hand the learned Public Prosecutor submitted that the testimony of PW-6, PW-9 and PW-5 should be sufficient to hold the appellant guilty it was submitted that in case of punctured wounds there is no oozing of blood and it is not necessary that the trail of blood should be found on the spot. Learned counsel for the appellant cited decision of Division Bench of this Court in Mada Singh vs. State of Rajasthan (1 ). It was pointed out from paragraph 17 of this judgment that presence of blood stains should be naturally expected on the clothes of persons who lift the injured person. We do not think that the observations have general application. In the circumstances of that case this Court had considered the absence of blood stains on the clothes of persons who had lifted the body of the deceased to be a fact which also went against the proposition that the witnesses were present on the spot and had seen the incident. In the pre- sent case there were no head injury and PW5 father of the deceased only stated that he had taken head of his son in his lap. When the injury was in the abdomen it is quite possible that no blood stains came out on the clothes of the witness. ;