BHAGWATI, J. - (1.) THE wretched son indicated for the charge of murder of his old hapless father was convicted in the offence under Section 302 of IPC vide judgment dated 3rd December, 2003 rendered by Additional Sessions Judge (Fast Track) No. 2, Jhalawar and sentenced to imprisonment for life with a fine of Rs. 2000/- and in default of payment of fine to further undergo rigorous imprisonment of one year. Aggrieved with this judgment and order of sentence the accused appellant Sampat Raj has filed this jail appeal.
(2.) THE nub of the prosecution story as revealed by the complainant PW/3 Ratan Lal is that complainant Ratan Lal and the deceased Gopal happened to be real brothers. THE deceased Gopal is survived by three sons namely Sampat Raj, Lekhraj and Rambilas who are living in their separate houses juxtaposed to each other. THE deceased was living with his son Lekh Raj. It is alleged that in the intervening night of 30th and 31st May, 2003 at about 2-3 a. m. the complainant Ratan Lal whose house is situated just adjacent to the house of deceased Gopal, was sleeping out side his house. At that time, he heard screams louding "mar Diya Re, Mujhe Mar Diya Re" of his brother Gopal. Having heard the cry of his brother, he rushed to the Bada of Gopal where he was sleeping. THEre he saw his brother Gopal floundering on the ground. It is further alleged that at that point of time the accused Sampat Raj, son of deceased Gopal, was having a club in his hand and was assaulting his father. Soon thereafter, other sons of deceased, Lekhraj and Rambilas also reached the Bada. When they questioned Sampat Raj as to what was he doing and what all was going on, Sampat Raj, having raised lathi in his hand attempted to kill them also and told that nobody can save them. Inspite of his threat they reached near Gopal, who was bleeding from his head and found him dying in no time. THE S. H. O. Police Station Sarola Kala registered FIR Ex. P/8 on the written complaint Ex. P/2 of Ratan Lal and commenced investigation. During the course of investigation, the Investigating Officer prepared sita plan Ex. P/3, seized blood smeared soil vide memo Ex. P/4, one bloodstained `davdi' from the spot vide memo Ex. P/5, one bloodstained `goodari' vide Ex. P/6 and recorded the statements of the witnesses under Section 161 of the Cr. P. C. The I. O. arrested the accused Sampat Raj vide Ex. P/21 and seized bloodstained Club (subject of the offence) vide memo Ex. P/10 at his instance. Necessary memos were prepared. The Autopsy on the dead body Gopal was performed by PW/17 Dr. Surjeet Singh and after usual investigation the Police report was filed in the Court of Judicial Magistrate, Khanpur who committed the same for trial. The prosecution examined as many as 17 witnesses to prove its case. No evidence in defence has been adduced. On completion of trial, learned Additional Sessions Judge (Fast Track) No. 2, Jhalawar convicted and sentenced the accused appellant Sampat Raj as indicated herein before. Heard learned Amicus Curiae Mr. Satyapal Poshwal, appearing on behalf of the accused appellant as also Mr. Ashwani Sharma, learned Public Prosecutor and scanned the prosecution evidence as also other relevant material available on record. Learned Amicus Curiae Mr. Satyapal Poshwal contended that the accused has been falsely implicated in this case. The accused happens to be the son of deceased. He has further argued that:- (i) the accused had no motive to kill his father and in the absence of motive the accused cannot be convicted; (ii) no external injury has been found on the body of deceased Gopal as per post mortem report Ex. P/23, hence corpus delicti is not proved; (iii) the accused has been of unsound mind, which is amply proved from the statement of PW/10 Bali Bai wife of the accused; (iv) it is not proved that blood found on Stone, Gudari and other articles was of deceased Gopal only; (v) complainant PW/3 Ratan Lal himself does not support the prosecution case for other independent witnesses PW/1 Mohammad Asif, PW/2 Bal Ram and PW/10 Bali Bai have corroborated the prosecution case. (vi) Learned trial Judge has not properly appreciated the prosecution evidence, as such, the impugned judgment being devoid of merit deserves to be set aside. Per contra, the learned Public Prosecutor Mr. Ashwani Sharma has duly supported the reasoning of learned trial Judge and taken us through the material on record. We have carefully reflected over the submissions advanced before us.
(3.) THE learned trial judge has based the conviction of accused appellant on the evidence of PW/4 Babu Lal, PW/5 Bablu, PW/6 Kanhaiya Lal, PW/7 Lekhraj, PW/8 Rambilas, PW/9 Bhimraj, PW/13 Balkishan IO and PW/17 Dr. Surjeet Singh. The deceased Gopal, son of Birdhi Lal vide post mortem report Ex. P/23 is said to have sustained following antemortem injuries:- 1. Left parietal bone is fractured. 2. Membranes-tear. 3. Brain- Lacerated and damaged at parietal region. As per PW/17 Dr. Surjeet Singh, the cause of death is Brain Haemorrhage. The most crucial thrust of arguments advanced by learned Amicus Curiae is that no external injury has been found on the person of deceased Gopal in post mortem report Ex. P/23. whereas vide memo Ex. P/10 a blood stained club is alleged to have been recovered at the instance of accused appellant. Witnesses also deposed that accused appellant was seen near the body of his father having a bloodstained club in his hand. Question arises when the body of deceased was not bleeding, how could there be blood on the soil, how could there be blood on Gudari and how could there be blood on club, which was seen in the hands of accused? Having carefully pierced into Ex. P/1 Pnachayatnama, it is revealed that the Investigating Officer found a long injury on the head of deceased Gopal. It was blood stained injury. Blood was clotted in his nose and the baniyan and Dhoti, which were worn by deceased at the time of incident, were also found bloodstained. It is true that PW/17 Dr. Surjeet Singh has not mentioned in post mortem report any external injury found on the body of deceased, but he has mentioned in the post mortem report that left parietal bone was fractured and the brain was lacerated and damaged at parietal region and membranes were torn. As per Dr. Surjeet Singh brain hemorrhage was the cause of death of deceased. This witness has deposed before the Court and denied to have found any external injury on the head of deceased. On the contrary, both PW/7 Lekh Raj and PW/8 Rambilas, who having heard screams of their father reached to spot, have deposed that Sampat Raj was assaulting upon their father with stone and lathi (club ). They have further deposed that on asking him as to why he had killed his father, the accused replied that he has sent his father to Haridwar (a place to consign mortal remains into holy water) and they should immediately leave the place otherwise they will also be sent to Gangaji (again a place to consign mortal remains into holy water ). ;