SINGH, J. - (1.) IN this appeal, appellant has challenged the judgment dated 19. 5. 2005 of the learned Additional Sessions Judge (Fast-Track) Bandikui, Head Quarter Dausa, in Sessions Case No. 30/2005 (15/2003), whereby appellant Afssar Ahmad was convicted and sentenced as under:- u/s. 302 IPC: Imprisonment for life and fine of Rs. 2,000/- in default to further suffer imprisonment for six months.
(2.) BRIEFLY stated, the prosecution case is that a written report of the incident was lodged by the informant Ameen Khan at Police Station Dausa, on August 21, 2002 at 9. 30 p. m. , mentioning therein that on August 21, 2002, at about 9 p. m. he was coming towards his house on foot while Ansar, Apsar, Nissar, Allahdeen, Ishtyak, Sayeed, Yusuf were coming from the other side. In front of the house of Daryan, Dilshad was caught hold by them and Alladeen and Apsar inflicted knife blow on right side of his abdomen with the intention to kill him n account of old enmity. Dilsad was taken to hospital by informant's son Tahir and from there Dilsad was referred to Jaipur. On receipt of the report, a case under Sections 147, 149, 341, 307 IPC was registered and investigation commenced. Dilsad succumbed to the injuries and he was declared dead at 11 p. m. on August 21, 2002 and his post mortem was conducted on following day at S. M. S. Hospital, Jaipur. Accordingly, the investigation of the case was converted for the offence u/s. 302 IPC. During the investigation, necessary memos were drawn, accused persons were arrested and necessary evidence was collected. On completion of investigation, charge sheet was filed against accused Afssar Ahmed and Allauddin under Section 302 read with 34 IPC. while as against accused Nissar, Ansar, Sayeed, Yusuf, Istyak, Mukhtyar and Anwar Khan, investigation was kept pending u/s. 173 (8) Criminal Procedure Code. In due course, the case came up for trial before the learned Additional Sessions Judge (Fast Track) Bandiqui, Headquarter Dausa. Charge u/s. 302 IPC was framed against accused Affsar Ahmad while accused Allauddin was charge sheeted for the offence u/s. 302 read with 34 IPC. The accused denied the charges and claimed trial. The prosecution examined as many as 14 witnesses in support of its case. In the explanation under Section 313 Cr. P. C. accused Afsar Ahmad stated that co-accused Allauddin is his uncle and they resided at Mohalla Nagori in Dausa and people of the Mohalla were divided in two rival factions. Earlier his father had lodged a case in the police for assaulting Allauddin against the complainant party in which his father had appeared as witness against them and hence he was falsely implicated in the instant case. Co-accused Allauddin also explained that earlier he was assaulted by the complainant party, hence he was falsely implicated. Three witnesses in defence were examined. Learned trial Judge on hearing final submissions acquitted co-accused Allauddin while convicted and sentenced the appellant as indicated here-in-above. We have heard learned counsel for the appellant, learned Public Prosecutor for the State and with their assistance scanned the material on record. Death of Dilshad was undeniably homicidal in nature. As per Post Mortem Report (Ex. P. 16), following ante-mortem injuries were found on the dead body:-      " (1 ). Abrasion 1/2 x 1/4 cm on front of neck over thyroid prominence with clotted blood. (2) Linear abrasion 6 x 1/4 cm placed horizontally on right side of neck in lower 1/3 part, with two abrasions 1/2 x 1/2 cm each one above another with clotted blood. (3) Abrasions 1/4 x 1/4 cm on right cheek (molar prominence) with clotted blood. (4) Incised punctured wound (stab wound) 1-1/2 x 1/2 cm x depth? On right lateral aspect of chest at the level of 8th rib with clotted blood on dissection this wound found extending only into the muscle layer of chest wall correspondingly with extra version of blood. (5) Incised punctured wound (stab wound) one and half x 3/4 cm x depth? on right lateral aspect of chest at the junction of anterior 1/3 with posterior 2/3 of the 8th inter costal space with dribbling of fluid blood on dissection this wound had entered into the abdominal cavity through 8th inter costal space by cutting all the layer of abdominal wall, inter-costal muscle, reached to peritoneum and produced a wound of size 4. 5 x 2. 0 cm x 7. 5 cm depth on the right side of liver anterio laterally with haemo peritoneum containing about 2. 5 litre of blood and blood clots. On dissection of liver the wound had entered into a depth of 7. 5 cm in the perichyma of liver with haematoma bright red in colour. The wound (4) and (5) with their internal manufacture were strictly to the definition of incised punctured wound i. e. with clear cut well defined regular margins. In the opinion of members of Medical Board the cause of death of Dilsad was hemorrhagic shock as a result of ante mortem injury No. 5 with its internal manifestation. Injury Nos. (4) and (5) were caused by a sharp edged weapon and were sufficient to cause death in ordinary course of nature. On reappraisal of the evidence adduced by the prosecution, it is revealed that the occurrence had taken place at about 9 p. m. in the night on August 21, 2002. Dilsad (deceased) who was injured, was sent to hospital by Ameen Khan (PW. 1) on the Scooter of Imran @ Kalu along with Tahir Hussain (PW. 2 ). Ameen Khan (PW. 1), himself followed them to hospital on foot and when he reached there, Dilsad was being shifted in a vehicle and there his son Tahir Hussain (PW. 2) told him that Dilsad was referred to Jaipur. Then Ameen Khan (PW. 1) came to the Police along with the Police official from there and lodged the report (Ex. P. 1) at 9. 30 p. m. on the same day within about half an hour as the police station was nearby and at a distance of about 1/2 km. from the place of incident. This depicts that there has been prompt lodging of the first information report and it naturally unfolded the incident in the manner it had occurred.
(3.) ON delving into the evidence of eye witnesses to the occurrence, it is revealed that as per the first information report, the informant Ameen Khan (PW. 1) is the eye witness of the occurrence who has deposed that while he was going to his home, he saw that accused Afssar first inflicted knife blow to Dilshad and then second blow with knife was inflicted by co- accused Allauddin. The other accused persons also gave beating to Dilshad with blows and slaps and then all of the accused ran away from the place of occurrence. This witness has further deposed that apart from him, Abdul Wazid (PW. 7), Wazeer Khan (P. W. 10) and Abdul Rajjak (PW. 12) were also there on the spot who saw that incident. He has further deposed that his son Tahir Hussain (PW. 2) had also come there from nearby house of his maternal uncle Abdul Dayyan, who took Dilshad to hospital on the scooter of Kalu and after about ten minutes, on reaching hospital on foot, he found that Dilshad was being shifted to Maruti Car and he was told by his son Tahir (PW. 2) that Dilshad had been referred to Jaipur and then he went to lodge the matter to the Police Station. PW. 2 Tahir Hussain has corroborated the testimony of (PW. 1) Amin Khan and has deposed that on hearing cries, he came out of the house of his maternal uncle and saw 5-7 persons running from the place of occurrence and amongst them he saw Allauddin, Afssar, Sanwar, Nissar, Ishtaq, Sayeed and Yusuf. He then took Dilshad to hospital on the scooter of Imran alias Kalu. He has further deposed that dilshad told him that Allauddin and Afssar had inflicted knife blow to him while other 5-7 persons also assaulted him (Dilshad ). (PW. 7) Abdul Wazid, (PW. 10) Wazeer Khan and (PW. 12) Abdul Rajjak are other eye- witnesses, whose presence at the time of occurrence has been established by (PW. 1) Ameen Khan. (PW. 7) Abdul Wazid has deposed that Dilshad was surrounded by 10-12 persons and first knife blow was inflicted on right side of his abdomen by Afssar and then Allauddin snatched the knife from Afssar and he also inflicted one knife blow on right side of his abdomen. Wazeer Khan (PW. 10) has deposed that first knife blow was inflicted by Afssar on right side of abdomen of Dilshad and then Allauddin inflicted one knife blow to him. In the cross-examination, this witness has clarified that Allauddin had inflicted the blow with the knife which he had snatched from Afssar. The third witness, Abdul Rajjak (PW. 12) has deposed that when he reached at the spot, he found Dilshad surrounded by 8-10 persons and Afssar inflicted a knife blow on right side of abdomen of Dilshad then Allouddin inflicted one knife blow on Dilshad in right side of his abdomen. In the cross-examination, this witness has clarified that Allauddin had no knife in his hand but he took the knife from Afssar to inflict the blow. In view of the above testimony, it is established beyond doubt that Amin Khan was present at the time of occurrence and he saw the occurrence of inflicting knife blow to Dilshad. From the testimony of Amin Khan (PW. 1), it is further revealed that one knife blow was inflicted by the present appellant Afssar by Allauddin. The testimony of these witnesses on the point that first blow was inflicted by Afssar has been further corroborated by the other three eye witnesses Abdul Wazid (PW. 7), Wazir Khan (PW. 10) and Phool Chand (PW. 15 ). The fact that appellant Afssar had inflicted a knife blow to Dilshad is further corroborated from the testimony of (PW. 2) Tahir Hussain who had come to the place of occurrence from the nearby house of his maternal uncle and had taken Dilshad to hospital on the scooter driven by Kalu alias Imran Khan (D. W. 1), to whom Dilshad had told that Afssar and Alluddin inflicted knife blow to him. Imran @ Kalu (DW. 1) has been examined in defence on the point that he alone took Dilshad injured to hospital but the eye-witness account has proved the fact that it was Tahir Hussain (PW. 2) who went along him to hospital on the Scooter driven by Imran @ Kalu (D. W. 1 ). Thus we find consistent evidence on the point of inflicting a knife blow by appellant Afssar to the deceased Dilshad. However, the learned trial Court has acquitted co-accused Allauddin on the ground that there was no consistent evidence of inflicting other knife blow by accused Allauddin as he did not possess the knife allegedly used to inflict the blow. From the medical evidence, it is revealed that the deceased had sustained two incised punctured wounds on right lateral aspect of the chest marked as Injury Nos. 4 and 5 and Injury No. 5 was found to be fatal as per the testimony of (PW. 11) Dr. Shiv Ratan Kochhar. In this regard, learned counsel for the appellant has argued that in the absence of evidence on the point as to which of the two stab wounds were caused by the present appellant, Injury No. 5, can not be attributed to him with certainty and the appellant Afssar can not be held liable for the said fatal injury so as to convict him for the offence of murder under Section 302 IPC. This argument of the learned counsel is of much significance as from the evidence adduced by the prosecution, it has not established whether Injury No. 5, which was found to be fatal, was caused by the appellant Afssar and as such the said fatal injury can not be attributed exclusively to the appellant. ;