SINGH, J. - (1.) RAJU, the appellant herein was put to trial before the Court of Additional District and Sessions Judge (Fast Track), Ajmer, in Sessions Case No. 76/2001. The learned trial Judge vide his judgment dated 26. 3. 2003, convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life and also imposed fine of Rs. 3,000/- and in default of payment of fine to further undergo three month's simple imprisonment.
(2.) THE brief facts of the case are that on 28. 6. 2000, a written report was lodged at Police Station, Civil Lines, Ajmer, by the complainant Shri Nand Lal, s/o Lal Chand (elder brother) stating therein that on 28. 6. 2000 in the morning he was sleeping out side his house situated at Ghunghra Ghati, Ajmer. He got up on hearing the voice of his son Raju who was uttering that he had killed Latesh, the handicapped sister of Nandlal. He saw that the clothes of his son were stained with blood and he was coming out of the room of Banshi Lal. Nandlal then went to the room of Bansi Lal and on peeping inside the door, he saw blood inside the room. THEn he asked Raju to sit there and in the meanwhile his brother Brij Lal also came to the place and Raju also uttered the words that he had killed Latesh before him. On going inside the room, both of them found that their sister Latesh, who was disabled and could not walk, was already dead and she had injuries on her head and mouth. On the aforesaid report, a case under Section 302 IPC was registered at the Police Station and investigation was handed over to the Sub-Inspector Surendra Singh, by the S. H. O. After completion of the investigation, challan was filed against the accused under Section 302 of the Indian Penal Code. THE accused Raju was charge sheeted for the offence under Section 302 IPC and after the trial, the learned trial Judge convicted and sentenced the accused appellant as indicated herein above. The prosecution has examined as many as 19 witnesses. Thereafter the statement of the accused under Section 313 Cr. P. C. was recorded. He has not led any evidence in defence. We have given our anxious consideration to the submissions advanced before us and scrutinized the record. The death of Latesh was indisputably homicidal in nature. As per Post Mortem Report Ex. P. 35, the following ante-mortem injuries were found on the dead body:- " 1. Incised Wound- The wound is on face higher up on left side, extending from Rt. Cheek to left ear from below nose, cutting the cheeks, upper lip and left ear (leaving left ears upper 1/3) then whole wound passing downwards cutting through the junctions of jaw possibly, oropharynx all neck structure obliquely and 2nd vertebrae of neck through and through. On neck on Rt. Side 6 cm tag of skin present by which the face is intact only, which is bifurcated as shown above and her picture below all structures are clear cut wound total circumstance 35 cm. 2. Incised Wound 1 cm x 0. 5 cm x muscle deep on palma aspect of left middle finger on lower pharynx. 3. Incised wound Rt. thumb 2. 5 x 0. 5 cm x muscle deep on upper part back. 4. Incised Wound 4 cm x 2 cm x muscle deep Rt. Shoulder amply and obliquely. 5. Incised Wound - 8 cm x 3 cm on back of left supra occipital regions, with clear cut injuries, Transversely. As per autopsy, the cause of death was stated to be shock as a result of Ante-Mortem Injury No. 1 which was sufficient to cause death in ordinary course of nature.
(3.) IN assailing the impugned judgment, learned counsel for the appellant urged following points:- (i) The only eye witness Neha (PW. 7) is a child, aged seven and half years, whose testimony is unsafe to base conviction; (ii) The written information from Nandlal (PW. 6) was procured by Police at 6. 30 p. m. On the day of occurrence while the alleged incident took place at 6. 30 a. m. in the morning and the investigation had already commenced at 6. 30 a. m. ; (iii) The corroborative evidence including that of the witnesses who immediately reached at the place of occurrence is not sufficient to link the appellant with the crime; and (iv) the motive of the crime is missing and in the facts and circumstances of the case benefit of doubt should go to the appellant; Per contra, learned Public Prosecutor has supported the conviction of the appellant and it has been canvassed that the prosecution has proved the case through eye witness Neha (PW. 7) and other members of the family who immediately reached at the spot and found the accused in blood stained clothes and the fact that he made an extra judicial confession in their presence. In support of his arguments on the point of testimony of child witness, the learned counsel for the appellant has placed reliance on Nirmal Kumar vs. State of U. P. AIR 1992 Supreme Court 1131 and Chhagan Dame vs. State of Gujarat, 1994 CRI L. J. 56, wherein the testimony of child witness was not found safe to base conviction on being found tutored and also for want of corroboration in the facts and circumstances of the said cases. ;