1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER Kishan lal vs. The State & ors. D.B. Criminal Jail Appeal No. 1083/2003 against the judgment dated 25.9.2003 passed by the learned Addl. Sessions Judge No.2, Udaipur camp Salumber in Sessions Case No. 31/2002. Date of Order : 19.8.2010 PRESENT HON'BLE MR. PRAKASH TATIA,J. HON'BLE MR. KAILASH CHANDRA JOSHI,J. Mr. Sudhir Saruparia, Amicus Curiae, for the applicant, Mr. K.R. Bishnoi, Public Prosecutor for the State. BY THE COURT: (Per Hon'ble Tatia,J.) This Jail Appeal is against the judgment and order passed by the court of Addl. Sessions Judge No.2, Udaipur camp Salumber dated 25.9.2003 passed in Sessions Case No.3/2003 whereby the learned trial court convicted appellant Kishan lal for offence under Section 302, IPC and sentenced him to undergo life imprisonment. A fine of Rs.500/- has been imposed and in default thereof, to undergo 15 days' simple imprisonment. Brief facts of the case are that on 16.4.2002, one Moti Lal submitted a written report (Ex.P.1) in the Police Station, Salumbar that his uncle's son Kishan Lal(accused), who 2 was not doing any job, was living with his mother. His wife already left him. He used to quarrel every time with his mother. On unfortunate day of event, the complainant Moti Lal came out from his house when he heard quarrel between Kishan Lal and his mother. He saw that Kishan Lal had one naked sword in his hand and he was telling his mother Dhuli that bring my wife. Kishan Lal's mother-victim said from where I should bring her and how I will feed her. Kishan Lal angrily inflicted injuries upon said victim Dhuli by sword on the head and hand of the victim. Then accused Kishan Lal dragged victim Dhuli in his house and inflicted injuries by one iron Airan. On the basis of said report , a Case No.100/2002 under Section 302 IPC was registered against the named accused-appellant. During trial, total 13 witnesses were examined. A memo for deceased's body (Ex.P.2) was prepared. The blood soil and sample soil were collected and for that reports Ex.P. 4 and Ex.P.5 were prepared. The iron Airan and sword were recovered. The Articles were sent to the Forensic Science Laboratory from where FSL report (Ex.P.25) was obtained. The body was sent for post-mortem and Post-mortem Report (Ex.P. 12) was obtained. In total, 25 documents were exhibited in the trial court. The accused-appellant was examined under Section 313,Cr.P.C., who denied the allegations. The appellant in his statement under Section 313, Cr.P.C. merely stated that his mother 3 died because of her age. The trial court relied upon evidence of eye-witnesses PW-3 Keshu Lal, PW-5 Smt. Devi Bai, PW-6 Smt. Amrati Bai, PW-7 Mohni Bai and PW-8 Smt. Nathi Bai, which were corroborated by the other evidence, like recovery of iron Airan and sword from the accused, which was proved by the witnesses PW-2 Shanti Lal and PW-4 Devi Singh. The trial court also relied upon FSL report which corroborated and connected the accused with the crime. The trial court rejected the plea of the defence that there are contradictions in the statements of the witnesses and also rejected the plea of the appellant that it was not a case of murder but it was case of culpable homicide only, not amounting to murder. Heard learned Amicus Curiae appearing for the accused appellant and the learned Public Prosecutor. The learned Amicus Curiae submitted that PW-1 Moti Lal, who lodged the FIR, turned hostile and, therefore, he did not support the prosecution case in any manner. The witnesses though stated that the appellant inflicted injuries by sword upon the victim, his mother Dhuli, but none of the witness stated that the appellant inflicted injuries by iron Airan. Therefore, any injury caused by iron Airan on the body of deceased Dhuli was not inflicted by the appellant. It is also submitted that all the witnesses were interested witnesses and they falsely implicated the appellant. The 4 learned Amicus Curiae also submitted that in fact none of the alleged eye-witnesses, like PW-3 Keshu Lal. PW-5 Smt. Devi Bai, PW-6 Smt. Amrati Bai, PW-7 Smt. Mohni Bai and PW-8 Nathi Bai saw the incident. The learned Public Prosecutor supported the judgment of the trial court and vehemently submitted that even if PW- 1 Moti Lal has been declared hostile even then he fully supported the prosecution case and his evidence on material part is reliable evidence, as that part is finding support from the other ocular evidence as well as other circumstantial evidence. It is also submitted that the eye- witnesses who had no enmity with the appellant and their presence on the spot at the time of incident was natural, clearly stated that the appellant inflicted injuries upon his mother deceased Dhuli by sword and nothing came out from the cross-examination which may cast any doubt upon the evidence of the prosecution. The iron Airan and sword were recovered from the accused which were having human blood of O-group as per the FSL report (Ex.P.25). The cause of death has also been fully established by the medical evidence, which is the result of the injuries inflicted by the appellant. We considered the submissions of the learned Amicus Curiae and the learned Public Prosecutor and perused the record. So far as the fact that the incident occurred in the 5 evening of 15.4.2002 is concerned, the prosecution proved the written report Ex.P.1, though PW-1 Moti Lal, the author of the FIR, stated in the court that he did not went to lodge the FIR, but his evidence in examination in itself sufficiently proved that he saw accused-appellant Kishan lal with sword with his mother and he stated that the appellant also asked Keshu Lal where his (appellant's) wife is, otherwise, i will kill, upon which Keshu Lal went away. The Investigating Officer PW-13 Kishan Singh stated that PW-1 Moti Lal submitted written report(Ex.P.1) before him over which Moti Lal put his thumb impression. The prosecution produced Keshu Lal as a witnesses. PW-3 Keshu lal stated that he saw Kishan Lal inflicting injuries upon Dhuli by sword and he gave threat to him also, upon which they went away from the site. Keshu Lal is neighbour of the appellant and he also stated that the appellant was not doing any work. The other eye-witness PW-5 Smt. Devi Bai stated that hearing the cries of Dhuli, she came on the spot where she saw that Kishan lal had a naked sword in his hand and he inflicted injuries on the face and head of his mother Dhuli. She stated that this incident was seen by PW-6 Smt Amrati Bai, PW-7 Smt. Mohni Bai and PW-8 Smt. Nathi Bai, as they all came hearing the cries of the victim. The other witnesses, PW-6 Amrati Bai, PW-7 Smt. Mohni Bai and PW- 8 Smt. Nathi Bai fully corroborated the statement of PW-5 6 Smt. Devi Bai as well as statement of PW-3 Keshu Lal. All above witnesses had no enmity with the accused and are independent witnesses. Above ocular evidence is corroborated by the Post- mortem Report and the statement of PW-9 Dr. Shambhu Dayal, who deposed that he found incised wound measuring 2x0.5x0.5 inch which was running from left eye to ear of the victim reaching upto back of the head, one crushed wound in the right hand and found radius and ulna broken and one incised wound 2x0.5x0.5 inch on right shoulder of the deceased, one incised wound on the little and middle finger of the left hand and one incised wound 3x0.5x0.5 inch on left palm of the deceased. He stated that the injuries were sufficient to cause death in the ordinary course and the cause of death was injuries on the head and excessive bleeding. He proved Post-mortem Report Ex.P.12 and all injuries were pre-mortem. PW-13 Kishan Singh,SHO, Police Station, Salumbar stated that written report (Ex.P.1) was submitted to him by Moti lal (PW-1), with his thumb impression on that written report, upon which he investigated the matter and recorded the statements of the witnesses and prepared all fard, exhibited in the court and recorded the information given by the accused under Section 27 of the Evidence Act and recovered the weapon of offence at the instance of the accused-appellant and he arrested the accused-appellant 7 and submitted challan in the court. The appellant's plea that his mother died because of her own age, is belied by the trustworthy evidence produced by the prosecution and it is proved that the victim, mother of the accused-appellant, died unnatural death because of the injuries inflicted upon her body by the appellant from the sword and iron Airan. Therefore, the appellant has rightly been convicted by the trial court and has been accordingly sentenced. We do not find any merit in this Jail Appeal and, therefore, the same is hereby dismissed. ( KAILASH CHANDRA JOSHI),J. ( PRAKASH TATIA),J. mlt.