SHYAM SUNDER BYAS, J. - (1.) ACCUSED Barishal Singh has come up in appeal to challenge his conviction He was convicted under Section 302, IPC and sentenced to imprisonment for life along with a fine of Rs. 300/ -, in default of the payment of fine to further undergo six months rigorous imprisonment by the learned Sessions Judge, Balotra, vide his judgment dated October 31, 1981.
(2.) THE prosecution case, which is short and simple, may briefly be stated as under. PW 4 Kishore singh is the real brother of the deceased -victim Phoosa. The appellant is the son of their another brother Chainsukh. The three brothers have a field in Mauja Aklpura P.S. Gudda Malani district Barmer. They were cultivating it in separate portions though it was recorded as joint in their names in the revenue records, Phoosa wanted to sell his portion to one Bhanwara. This was resented to by the appellant. The said negotiation annoyed and irked him. At about 11.30 a m on April 10, 1981, Phoosa was going to his Dhani with a pot of water on his head. His Dhani is situate in his portion of the joint field. The accused went behind him with a lathi and knife. He struck a blow with his lathi on the feet of Phoosa, Phoosa fell down. Thereafter the accused struck blows on the back of his head with the lathi. He also inflicted injuries with his knife to Phoosa. Phoosa did not survive and passed away instantaneously on the spot. Before inflicting the blows to the victim, the accused shouted as to why he (Phoosa) was selling his share in the field and that he would kill him, PW 3 Dansingh who happened to pass that side, on seeing the incident raised the cries. Hearing his cries Kishoresingh (PW 4) also rushed to the spot. The accused left the place and took to heels. PW 3 Dansingh immediately went to Police Station, Gudda Malani and verbally lodged report Ex. P 2 of the occurrence at about 2.30 p m. on the same day. The police registered the case and proceeded with investigation. The Station House Officer Laxmansingh arrived on the spot, inspected the site and prepared the site plan. He also prepared the inquest report of the victim's dead body. The autopsy on the victim's dead body was conducted on April 11, 1981 by PW 8 Dr. Patel the then Medical Officer Incharge Government Dispensary, Gudda, Malani. He noticed the following ante mortem injuries on the victim's dead body: (1) Punctured wound 1' back to right pinna near mastoid region 1' x 1' x 2' grievous -sharp, jugalar vein and artery cut; (2) Incised wound on tip of right hip to laterally 2 -1/2 x 1' x 1' x 4' simple sharp; (3) Bruises two in number at left temporal region just above pinna both are 1 -1/2' x 1' in size and depression grievous blunt. The doctor was of the opinion that the cause of the death of the victim was head injury and haemorrhage. The post mortem examination report prepared by him is Ex. P 9. The accused was arrested on April 11, 1981. At the time of this arrest, he was wearing Dhoti (Article 6) which was found stained with blood. It was seized and sealed. In consequence of the disclosure statement made by the accused on April 11, 1981, one knife and one lathi were recovered. On chemical examination the Dhoti of the accused and the lathi and knife were found stained with human blood. On the completion of the investigation, the police submitted a challan against the accused in the Court of Judicial Magistrate, Barmer, who, in his turn, committed the case for trial to the Court of Sessions The learned Sessions Judge framed a charge under Section 302 IPC against the accused, to which he pleaded not guilty and claimed to be tried. In support of its case the prosecution examined nine witnesses and filed some documents. The defence taken by the accused was that he has been falsely implicated. He denied his presence on the spot of the occurrence and pleaded that he was in village Barasan on the day of the alleged incident. On the conclusion of the trial the learned Sessions Judge held the charge duly proved against the appellant and found no merit or substance in the defence put forward by him. 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 carefully.;