K.D.SHARMA, J. - (1.) THIS appeal by Tulsi Ram through the Superintendent Central Jail, Jaipur is directed against the judgment of the Additional Sessions Judge, Jhalawar, dated 25th January, 1973 convicting the appellant under Section 302, IPH and sentencing him to undergo rigorous imprisonment for life and to pay of fine of Rs. 500/ -, in default of payment of fine to further suffer simple imprisonment for two months.
(2.) THE incident that led to the arrest and prosecution of the appellant may be described in brief as follows: In the evening of 12 -9 1972 Tulsi Ram appellant visited the house of Kishna deceased for the purposes of taking him to his house for drinking liquor together. Kishan's wife Mst. Dhanni Bai asked the appellant not to take her husband to his house as she did not like that her husband should take in wine along with the appellant The appellant there upon promised Dhanni Bai that he would send her husband back after a short while. The appellant then went away with the deceased to his house. Later on in the night between 12 -9 -1972 and 13 -9 -1972 the appellant was seen by Laxman and Shanker beating the deceased with a short stick and an axe in the court -yard of his house. As a result of beating the deceased fell down in the court -yard. Meanwhile Hiralal brother of the appellant also rushed to the place of occurrence on hearing noise and saw the appellant standing in the court -yard having a short stick in his hand by the side of the deceased who was Wing on the ground. Hiralal asked the appellant why he had beaten Kishna deceased. The appellant resented his intervention and struck a blow on his body with a short stick. After receiving the blow Hiralal ran away from there. The aforesaid evewitnesses also went to their houses after the incident was over. On the next day in the morning Bhanwar Lal, brother of the deceased and other inhabitants of the village found the dead body of the deceased lying on a Chabutara outside the house of the appellant. Bhanwar Lal, brother of the deceased then rushed to the police station Jhalawar along with Bhanwar Lal son of Poorji Bhil and made verbal report to the SH Order, which in Ex. 1 on the record. The SH Order registered a criminal case under Section 302 IPC on the basis of the: report and made usual investigation into the matter He went to the spot and inspected the dead body of Kishna, prepared an inquest report and a site -plan. He seized one short stick and two empty bottles of wine from the place of occurrences The short stick was blood stained which was sealed properly in the presence of motbirs. He arrested the appellant and took his clothes i.e. one Dhoti and 'Baniyan' into his possession, as they were suspected to have plains of blood on them. He arrested the wife of the appellant also vide memo of arrest Ex. P.9 and later on recovered currency notes from the appellant's house at her instance and in consequence of her information recorded under Section 27 of the Evidence Act. He took blood stained earth also into his possession and sent the dead body of Kishna to Jhalawar Hospital for post -mortem examination. Dr. G.D. Sharma conducted an autopsy over the dead body of Kishna on 13 -9 -1972 and f sund the following injuries: (1) Lacerated wound 1/2' x 1/4' bone deep on the left frontal eminence with blood clot in it. (2) Ecchymosis with hoemotama extending from the left perietal region to occipital region including temporal reigon measuring 10'x 4' (3) Incised wound with blood clot measuring 1'x 1/4' x 1/2' on the front of leg, 4' above ankle. (4) Punctured wound 1'x 1/2' bone deep on the front of left leg 2' above injury No. 3 with blood clot (5) Lacerated wound with compund communited fracture of both bones of left leg at the junction of upper 1/4' with lower 3/4' of left leg with blood clots. (6) Incised wound 2'x 1/2' x 1' on the front of right leg in middle with blood clots (7) Ecchymosis with swelling and fracture of right femur lower 1/3 measuring 5' x 1 1/2' (8) Lacerated wound 1'x 1/2'x 1/2' on medial side of right leg 3' below the knee both the legs were smeared with blood and blood was oozing from the wound. On dissection of the body he noticed that there was haemorrhage below the scalp over the vault of skull extending from left frontal region to occipital protuberances on the back with fracture of left frontal, parietal and occipital bones. There was subdural haemorrhage on the whole left side of cerberal hemisphere. The brain was congested. Both the lungs were ischaemic. The enterial tibial artery of left leg was punctured. Liver, spleen and kidney were found ischaemic. All these injuries were ante -mortem in nature and their duration was between 18 and 24 hours prior to the post -mortem examination. In the opinion of the doctor death of Kishna occurred on account of shock caused by haemorrhages as a result of injuries on head and legs of his body. The doctor further opined that the injuries were sufficient in the ordinary course of nature to cause death of the deceased. The SH Order then sent all the articles seized by him in the course of investigation to the Assistant Director, Forensic Science Laboratory GID, Rajasthan, Jaipur who upon analysis, detected blood stains on all of them, except on the currency notes He forwarded the blood stained articles to the Serologist for serological examination also but the report of the Serologist was not placed on the record by the prosecution, during the trial of the case. Mr. D Section Shishodia, Public Prosecutor for the State, no doubt, produced the report before us along with an application for taking additional evidence in the case. The application of the Public Prosecutor was rejected by this Court vide its detailed order dated 3 -3 -1978, as no case was made out for allowing the prosecution to lead additional evidence in the case at this belated stage.
(3.) THE SHO collected other necessary evidence in the case and eventually aled a challan against the appellant and his wife for the offence of murder in the court of Munsif Magistrate, Jhalawar. The learned Magistrate held an inquiry preparatory to commitment and upon finding prima facie case exclusively triable by the court of sessions, committed the appellant and his wife Mst. Birdhi Bai for trial Section 302 and 302 read with Section 34, IPC respectively. The learned additional Sessions Judge tried the appellant and his wife for the aforesaid offences and found upon evidence that the appellant only was guilty of murder of the deceased. He, therefore, held the appellant guilty for the offence of murder and convicted and sentenced him as stated above.;