Vijai Singh vs State Of U.P.
2019 Latest Caselaw 1332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 18.02.2019
 
Delivered on  15.03.2019
 
Court No.1
 

 
Case :- CRIMINAL APPEAL No. - 960 of 1983
 
Appellant :- Vijai Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- U.C. Misrha,P.N.Mishra,Raghuvansh Misra, Rahul Misra
 
Counsel for Respondent :- D.G.A,A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Ramesh Sinha,J.)

1. The present criminal appeal has been preferred by the appellant against the judgment and order dated 14.4.1983 passed by the Sessions Judge, Etawah in S.T.No. 46 of 1983, under Section 302 I.P.C. by which the appellant has been convicted and sentenced for life imprisonment.

2. The prosecution story in nutshell is that a First Information Report was lodged by Smt. Raja Beti, wife of Ram Lakhan with an allegation that after the death of her father-in-law, there was a dispute between her husband-Ram Lakhan and Jeth-Vijay Singh with respect to land and other articles for partition and a quarrel was going on between them so much so that both the families were not at talking terms nor they were having food etc. with each other. On 5.7.1982, while her husband Ram Lakhan, son of Laxman was watering his field towards West, she was also present there along with the son of her Nanad namely, Ram Shanker son of Ramdas, resident of Village Kakrai, police station Basrehar. The other persons of the village, namely, Ram Charan son of Gopi Chand, Buddh Singh son of Shyam Lal, Shri Ram son of Summer, Sughar Singh son of Mangli Prasad were also working in their respective agricultural field. At about 11.30 a.m., her Jeth-Vijay Singh son of Laxman came to her agricultural field with a Spade and started to open the water for his agricultural field, which was objected by her husband Ram Lakhan who stated that his agricultural field has not yet been filled with water and requested him that he may take water after a short time, due to which both of them started scuffling and Ram Shanker tried to interfere to reconcile the matter, thereafter, Vijay Singh assaulted her husband with spade with an intention to kill, on account of which her husband fell down on the ground, on which she raised an alarm and called upon the villagers to save her husband who was being killed by accused Vijay Singh. On the alarm being raised by her, the aforesaid villagers reached at the place of occurrence to save her husband who got injured by the accused Vijay Singh who fled away towards the village and as the condition of her husband was serious, she took her husband to District Hospital Etawah and on reaching the hospital succumbed to his injuries and his dead body was lying in the hospital. Thus, she submitted a written report(Ext. Ka.1) on 5.7.1982, which was scribed by Ram Shanker son of Ramdas on her dictation and the same was submitted at the concerned police station for necessary action complaining that accused Vijay Singh had murdered her husband by cutting him with spade.

3. On the basis of the written report submitted by the informant Raja Beti, an FIR was registered by the police of police of police station Ekdil, District Etawah being Case Crime No.92 of 1982, under Section 302 I.P.C. on the same day at about 17 hrs. Constable Balbeer Singh prepared Chick report (Ext. Ka.3)on the basis of written report submitted by Raja Beti. He also endorsed the same in G.D. No.23, which is which is Ext. Ka.4.

4. The investigation of the case was entrusted to Sub Inspector Lal Mani Rai (PW5) who was not present at the police station and had gone for investigation in some other case, he got the papers of this case through Sub Inspector Sagir Ahmad. He along with Sub Inspector Sagir Ahmad and Sub Inspector R.S. Gaur went to the place of occurrence and recorded the statement of the complainant Ram Beti and also inspected the place of occurrence at the instance of the complainant Ram Beti. He collected the blood stained earth, leaves and plain earth ( Ext. Ka.3 & 4) and sealed them in tins separately and prepared the recovery fard (Ext. Ka.6). He also prepared the site plan (Ext. Ka.5). He went to the house of accused Vijay Singh but did not find him there and on a search being made of his house, he recovered one blood stained spade (Ext. Ka.5) . He prepared the fard recovery regarding recovery of spade (Ext. Ka.7). On the same day he recorded the statements of Ram Shanker and Ram Charan and came to the police station at 2.45 a.m. and deposited the three sealed bundles after making necessary entry in the general diary at report No.3 (Ext. Ka.8). He also made search of the accused Vijay Singh but he was not traceable. Accused Vijay Singh surrendered in the Court on 12.7.1982 and he interrogated him in jail. After completing the investigation, he submitted the charge sheet on 9.8.1982 against the accused Vijay Singh.

5. The case was committed to the Court of Sessions by the learned Magistrate and the trial Court framed charges against the accused for the offence in question who denied the prosecution and claimed trial.

6. In order to prove the guilt of the accused, the prosecution examined PW1-Smt. Raja Beti, PW2Dr. C.L.Katiyar, PW3-Ram Charan, PW4-Balbir Singh & PW5-Lal Mani.

7. PW1-Smt. Raja Beti who is the informant of the case and wife of the deceased and is also an eye witness of the occurrence. She deposed before the trial Court reiterating the prosecution case as narrated by her in the FIR. She further stated that her husband Ram Lakhan (deceased) and accused Vijay Singh are the real brothers. There was dispute between them with respect to the partition of agricultural land and they were not at talking terms nor their fooding was together. On the day of incident at about 11 a.m., her husband was watering his agricultural field. She was also present there. Ram Shanker, son of her Nanad who had come to her house, was also present there along with her. She further deposed that Ram Charan, Sri Ram, Buddhu Singh, Sughar Singh were also present in their agricultural fields. Their agricultural fields were near the field of the deceased. Her husband was at his field and was watering the same. Accused Vijay Singh wanted to cut the water for his field, on which her husband told him that first let his field be filled with water and then water may be taken by accused Vijay Singh, on which accused Vijay Singh stated that he wanted to take the water at that very moment, due to which quarrel took place between them and accused Vijay Singh assaulted her husband with spade. On which she raised an alarm and Sri Ram, Ram Charan, Buddhu Singh and Sughar Singh arrived at the place of occurrence and Vijay Singh fled away from the place of occurrence. Her husband on receiving the injuries from spade had fallen on the ground.

8. She further deposed that after her husband had fallen on the ground, then too the accused Vijay Singh had assaulted him with spade. Thereafter, she took her husband to the house and from there to the hospital and on reaching the hospital he died. She got a report written at the hospital by Ram Shanker and the said report was read out to her, who stated after hearing the same to be the report which was got written by her on which she she affixed her signature and identified the same and proved it to be Ext. Ka.1. She had given the said report to the Constable at the concerned police station and thereafter she returned to her house.

9. In her cross-examination, this witness has stated that her agricultural field as well as agricultural field of accused Vijay Singh are adjacent to each other and there is a 'Medh' between their fields and 2-¼ Bigha of agricultural field was in their possession, out of which in ½ part of the field there was paddy crops and rest of the field was lying vacant. She further deposed that her agricultural field is visible from the door of her house if there are no crops in between. The house of accused Vijay Singh is at a distance from her house. Vijay Singh is living in the said house prior to her marriage. She further stated that her marriage was solemnized 15 years ago and her husband used to live in the old house. His father-in-law had died four years back and her mother-in-law is still alive who is living with her. The agricultural filed which they were having, were partitioned in three parts while her father-in-law was alive, out of which one part was belonging to her father-in-law while the other two parts were belonging to her husband and accused Vijay Singh. After the death of her father-in-law, half share of his father-in-law came to her husband and the other half to her Jeth Vijay Singh. Her Jeth Vijay Singh used to live separately prior to her marriage. She further stated that on the day of the incident, she reached at her agricultural filed at 10 a.m. and her husband had reached there some time prior to her. When the incident had taken place, till then her ¼ field was filled with water and when the accused came then the water was going in her field. She stated that her turn to get water for her field starts in the night between 2-2.30 a.m. and they used to get water for about 10-11 hours for their field and when they were watering the field it was their turn. Her husband was having a spade which was being kept in the field. The incident had taken place in the field of accused Vijay Singh. Prior to the incident, accused Vijay Singh could not take/open the water for his field. The accused had assaulted her husband, thereafter he opened the water and ran away. The accused had opened the water in the 'Pakka' drain towards the east. The water had started going in the field of accused Vijay Singh. She stated that after the incident she remained at the field for about 10-15 minutes. In the field of Vijay Singh, paddy crops was standing there.

10. The Investigating officer had come to the village between 6.30 to 6.45 p.m. in the evening and he inspected the place of occurrence in her presence. Vijay Singh was taking water in his field where the paddy crop was standing and not in the field where the maize crop was standing, which was adjacent to her field.

11. She denied the suggestion that no water had gone to her field and her Kucchi Nali was dry. She further denied the suggestion that she did not show the Investigating Officer where she was standing. She further denied the suggestion that on the day of the incident, Ram Charan, Sri Ram, Rajaram and Sughar Singh had gone to the market. She stated that when the accused assaulted her husband, she ran away towards the other side of her husband at a distance and accused also rushed towards her to assault, then she ran away and raised an alarm and when the accused fled away then she came near to her husband, who was unconscious and she did not talk to her. She stated that seeing her husband in an injured condition, she neither took him in her lap nor embraced him and she only put a towel from the place where it was bleeding. The towel was of her husband. Her husband was wearing an underwear and he did not wear any other clothes on his body. She tied the towel on the head of her husband from where it was bleeding. There was no blood stains on her clothes or on the clothes of her husband. As soon as the first assault of spade was made on her husband, he had fallen down and thereafter 6-8 blows of spade were made by the accused Vijay Singh on her husband. Her husband was assaulted by the accused twice from the sharp edged side and rest of the assault was made from the reverse side of the spade and blood was oozing out from his head and shoulder. Her husband was assaulted by the spade only and no other weapon was used for the same. The blood of her husband had fallen at the place of occurrence and some other places also. She had taken her husband to the hospital from the village to Etawah at about 2 p.m. in the afternoon. She denied the suggestion that Ram Charan and others had gone to Etawah and further denied that after their return, she took her husband to Etawah.

12. She further denied the suggestion that her turn of watering the field starts on Monday from 2.42 a.m. to 8.40 a.m. and further denied the suggestion that thereafter the turn of Daulatram starts. She stated that when the incident had taken place, it was rainy season and it had not rained, hence, water was required by all the villagers. She stated that she had gone with her husband after taking food and after about 10-15 minutes of taking food, the incident of marpeet took place and after receiving the injuries her husband vomited and blood had also come out and her husband had vomited at his house. She stated that she had not told the Investigating Officer that her husband vomited the blood and food items at the door of the house nor she had mentioned the same in the report.

13. She further in her cross-examination has stated that when scuffle took place between the accused and her husband in the agricultural field of Vijay Singh, she was at her field which was at a distance of about 20-25 paces. Ram Shanker separated them but after 10-5 minutes both of them again started fighting with each other. She stated that accused Vijay Singh did not have any son.She is not aware of the fact that her mother-in-law is having any ornaments or not and accused had not demanded about half of the ornaments. She denied the suggestion that accused had made a demand of ornaments and she had refused to give the same. She further denied the suggestion that ornaments which were given to her in the marriage, she would not partition the same. She has proved the underwear as material Ext. 1 and towel as Ext.2 on which the blood stains were present and identified the same.

14. PW2-Dr. C.L. Katiyar has deposed before the trial Court that on 6.7.1982 he was posted as Medical officer in District Hospital Etawah. On the said date about 4 p.m. he had conducted the post mortem of the deceased Ram Lakhan who was brought by the two Constables, i.e., 667 C.P. Munshi Singh and 564 C.P. Lalaram in a sealed condition and found the following ante-mortem injuries:-

"1. Margin clean cut wound 4 cm. x 0.5 cm. x skull deep on the right side of back of head 8 cm. above and behind the right ear. Clotted blood present.

2. Margin clean cut wound 5 cm. x 1 cm. x skull deep on the left side of head 10 cm. above the left ear, clotted blood present.

3. Abraded contusion 21 cm. x 1.5 cm. on the front of right shoulder and chest 4 cm. outer from the right nipple longitudinal in direction.

4. Abraded contusion 11 cm. x 1 cm. on the outer side and right side of chest 13 cm. below the enterior axillary fold.

5. Abraded contusion 6 cm. x .5 cm. on the back right side and 3 cm. below the posterior axillary fold.

6. Abraded contusion 8 cm. x 4 cm. on the middle of chest 10 cm. below the neck.

Fracture on sternum bone in the middle part. "

15. In the opinion of the doctor, the deceased died on account of shock and hemorrhage as a result of ante mortem injuries. He has proved the post mortem report as Ext. Ka-2.

16. He deposed that the injuries which were sustained by the deceased could be caused on 5.7.1982 at 11.30 a.m. The injuries No.1 and 2 could be caused by spade from its sharp edged side whereas injuries No.3 to 6 could be caused by spade if it is used from its reverse side.

17. In his cross-examination, this witness has stated that the injury No.3 could be caused by blunt side of the spade. Injury No.6 could be caused by reverse side of the spade which is of iron portion. Injury no.2 could be caused by the blunt side of the spade. He further stated that there is margin of 3-5 hours regarding duration of the death on either side. The stomach and gallbladder was found to be empty and the deceased would not have taken food 4-5 hours prior to the incident. On a question put by the Court to him, he stated that after receiving the injuries if a person vomits, then the stomach would be empty.

18. PW3- Ram Charan who is an eye witness of the occurrence and uncle of the deceased has reiterated the prosecution case as has been stated by PW1. He deposed that on the day of incident when he was at his agricultural field, at about 10 a.m. he heard an alarm raised by Smt. Ram Beti (PW1) who was uttering that her husband is being killed, hence, on the said alarm he rushed to the place of occurrence and had seen the deceased Ram Lakhan who had fallen in his agricultural field after receiving the injuries and when he reached the place of occurrence, then the accused Vijay Singh had fled away from the place of occurrence. He stated that he had seen with his own eyes the accused Vijay Singh assaulting the deceased Ram Lakhan with spade and the said quarrel took place for water of the field and along with him Buddhu Singh and Sri Ram also reached at the place of occurrence. Bhanja of Vijay Singh was also present there before they reached. The wife of the deceased, namely, Smt. Ram Beti had taken the deceased to the Etawah Hospital and Ram Lakhan died in the hospital.

19. In his cross-examination, this witness has deposed that his agricultural field is towards the South of the field of Ram Lakhan and accused Vijay Singh which is at a distance of one furlong and in the South there are mango trees also. He denied the suggestion that the distance was about 2-3 furlong. He further denied the suggestion that if any person shouts or screams from the field of Ram Lakhan and Vijay Singh then it cannot be heard up to his field. He denied the suggestion that he was not ploughing his field. Ram Lakhan had fallen in the maize field which belonged to Vijay Singh. He further stated that the statement which he has given earlier that Ram Lakhan after sustaining the injuries had fallen down in his field, is false one. He stated that he was at a distance of 10-15 paces from the place of occurrence when the accused Vijay Singh had fled away.

20. He further denied the suggestion that he had not gone to Etawah for taking some articles for worship (pooja) and he is also not aware of the persons who had gone for Etawah for purchase of worship articles. He stated that the accused Vijay Singh wanted to open the water for maize field when the incident has taken place. The deceased was lying on the ground facing his face towards the sky and when some persons came there they carried Ram Lakhan on a cot to his house after 10 minutes of the incident. He was not speaking and was unconscious. He denied the suggestion that he had not seen the incident and because of village party bandi he is deposing against the accused Vijay Singh.

21. PW4-Balvir Singh has stated before the trial Court that on 5.7.1982 he was posted at Police Station Ekdil and on the said date at about 4.45 p.m., Smt. Ram Beti had given a written report (Ext. Ka.2) at the police station and on the basis of which he prepared a Chick report which was in his hand writing and signature (Ext. Ka.3) and the same was also endorsed in G.D. No.23. He has brought the original G.D. before the Court, of which the correct copy was in his hand writing and his signature, which he has submitted before the Court as Ext. Ka.4. This witness has denied the suggestion that he has got the written report (Ext. Ka.1) written through Ram Adhar at the police station on the dictation.

22. PW5-Sub Inspector Lal Mani Rai has deposed before the trial Court that he was posted as Sub Inspector on 5.7.1982 at Police Station Ekdit and was entrusted with the investigation of the case and he was handed over the documents of the present case at the Panchdevra bridge by Sub Inspector Sagir Ahmad. He had gone to the informant at 6.30 p.m. and recorded her statement under Section 161 Cr.P.C. and along with him Sub Inspector Sagir Ahmad and Sub Inspector R.S.Gaur were also present. He made spot inspection of the place of occurrence and recorded the statements of the witnesses, prepared the site plan at the pointing out of he complainant. He further recovered blood stained earth and plain earth and prepared recovery memo of the same. He also recovered blood stained leaves and maize in his custody and kept them in two tins and sealed them and proved the same as Ext. Ka.3 & 4.

23. He further stated that he reached the house of accused Vijay Singh who was not found there and he recovered a blood stained spade from the courtyard from the heap of wood in which it was kept and prepared a recovery memo (Ext. Ka.5) . The said recovery memo was written by Sub Inspector Sagir Ahmad in front of the witness as Ext. Ka.7. He also took the statements under Section 161 Cr.P.C. of witnesses, namely, Ram Shanker and Ram Charan and thereafter he returned back to the police station at 2.45 a.m. in the night where he had submitted the three bundles in a sealed condition also made entry in the C.D. Rapat No.3, which he has proved the same as Ext. Ka.8. He stated that the accused Vijay Singh surrendered in the Court on 12.7.1982, who was interrogated by him and sent to jail and after completing the investigation he submitted charge sheet (Ext. Ka.9) on 9.8.1982 against the accused for the offence in question.

24. In his cross-examination, this witnesses has deposed that after the incident the accused and his wife were not found in the village and he did not prepare the the site plan of the house of the accused. There was no lock in the house of the accused and only it was bolted. He stated that after searching the house of the accused he did not make any efforts of the same. During investigation, he could find out when the accused and his wife had left the house and had gone from the village.

25. He denied the suggestion that he had not recorded the statement of the complainant Smt. Ram Beti but has copied her statement from the FIR itself. Though he had made a report for sending the blood stained earth and spade to the Chemical Examiner but the same could not be sent. During investigation, he did not know the fact that whether Ram Lakhan vomited after receiving the injury. He denied the suggestion that he did not recover any spade from the hose of the accused Vijay Singh and also denied the suggestion that all the proceedings of investigation which he had conducted, was done by him at the police station.

26. The accused in their statement under Section 313 Cr.P.C. has denied the prosecution case and pleaded not guilty and claimed trial. He stated that he has been falsely implicated due to uncordial relationship with the deceased and the complainant. He admitted that he is the real brother of the deceased. He further in his defence has stated that he demanded his share in the ornaments of the family but the deceased and the complainant Smt. Ram Beti did not give his share and falsely implicated in the present case. He further submitted that on the day of occurrence, the deceased was not watering his field and at the time of the occurrence it was not the turn of the deceased to take the water. In defence he has filed copy of the form No.4 and also examined DW1-Ratnaker Tripathi who is the second Ziledar.

27. DW1-Ratnakar Tripathi in his statement has stated that the Ram Lakhan (deceased) and Vijay Singh (accused) used to irrigate their two fields from Kulawa No.6 of Rajwaha. He further stated that the turn of the deceased,accused and Daulat Ram was from 2.42 a.m. to 13.37 p.m. on every monday.

28. In his cross-examination by the prosecution, he has deposed that the farmers of one 'Thok' used to adjust themselves about the timings of taking water. Sometimes they used to take the time of another.

29. The trial Court after considering the prosecution evidence and defence version has found the appellant to be guilty of the offence charged and has convicted and sentenced him by passing the impugned judgment and order and being aggrieved by the same, the accused has preferred the present appeal against them.

30. Heard Sri Rahul Mishra and Sri Raghuvansh Mishra, learned counsel for the appellant, Mrs. Archana Singh, learned AGA appearing for the State and perused the lower court record.

31. It has been argued by learned counsel for the appellant that the appellant-Vijay Singh, who was real brother of the deceased Ram Lakhan, has been falsely implicated in the present case by the informant Smt. Raja Beti (PW1) because of strained relationship between them. He vehemently argued that the presence of PW1 at the place of occurrence appears to be highly doubtful as it is stated that it is PW1 when saw her husband after sustaining the injuries and blood was oozing out from his head, she had tied a towel on his head around the wound from where it was bleeding and it is highly improbable and beyond imagination to think that her clothes did not sustain any blood stain. Moreover, it was further pointed that soon after the incident, PW1 took her husband to her house and from where she proceeded to Etawah Hospital, but from the evidence of PW1 it is apparent that she proceeded to Etawah at 2 p.m. in the afternoon along with PW3 Ram Charan.

32. It was next argued that the place of occurrence, which according to the prosecution case was at the field of the deceased where he was watering, whereas the dead body of the deceased was found at the field of the accused Vijay Singh, hence, the place of occurrence appears to be doubtful one.

33. He has further drawn the attention of the Court that the motive which has been suggested by the prosecution for the murder of the deceased, is not a true one as PW1 has categorically stated that agricultural field of the deceased and accused Vijay Singh was partitioned and accused was also living separately from the deceased and the accused has been implicated in the present case only on account of the fact that he demanded the ornaments of her mother which was with the deceased and his wife PW1, which was refused by the deceased and his wife, hence he was falsely implicated in the present case, so that he may not demand ornaments from them.

34. It was further argued by learned counsel for the appellant that the deceased and his wife had taken their meal before coming to the field for watering but no food was found in the stomach of the deceased as it was empty and further large intestine and small intestine were full with fecal matter and gases. In this regard, he has dawn the attention of the Court towards the evidence of PW1 and also the evidence of PW2 Dr. C.L. Katiyar who deposed in his cross-examination that there is margin of 3-5 hours regarding duration of the death on either side. On the basis of evidence of PW1 and PW2, he states that the incident has taken place in some other manner and not as stated by the prosecution as the deceased was done to death in the night by some unknown miscreants.

35. He next submitted that the recovery of blood stained spade, which was made from the house of the appellant. is also doubtful as the same was recovered in his absence and moreover, the same was also not sent to Serologist in order to ascertain whether the blood found on it was human blood or not. He has tried to demonstrate from the documents such as FIR, Panchayatnama and evidence of PW4-Constable Balbir Singh that the FIR is an anti timed document, therefore, on the basis of the same he argued that conviction of the appellant by the trial Court is not sustainable in the eyes of law, hence, the same should be set aside, appeal be allowed and the appellant be acquitted.

36. Learned AGA on the other hand, has vehemently opposed the arguments advanced by learned counsel for the appellant and submitted that the incident had taken place in a brought day light at 11.30 a.m. and the appellant happens to be real brother of the deceased, who was done to death in the presence of his wife PW1 and PW3 Ram Charan who had witnessed the incident and their presence at the place of occurrence is well established and ocular testimony of the said two witnesses corroborate the medical evidence.

37. He next submitted that the appellant had strong motive to commit the murder of the deceased as there was previous animosity and uncordial relations between them and in defence the appellant in his statement under Section 313 Cr.P.C. has stated that he was implicated in the present case only on account of the distribution of the family ornaments which itself goes to show that he had strong motive to commit the murder of the deceased. If the said version is also taken into account, then the trial Court has rightly convicted the appellant for the offence charged.

38. Having considered the submissions advanced by learned counsel for the parties and perused the lower court record.

39. It is an admitted case of the prosecution that there was uncordial relations between the appellant and his real brother (deceased) as there was previous animosity between them. On the day of incident when the deceased was watering his field, the appellant went to him and tried to take the water by cutting ''Medh' for watering his field, which was objected by the deceased who stated that his field has not yet been filled up and he take the water after some time, which annoyed the appellant who had previous animosity with his brother and he started assaulting the deceased with spade from its sharp side on account of which he received two injuries on his person and when he had fallen down, he was again assaulted by the appellant from the reverse side of the spade and also from its blunt side as well as the portion which was made of iron and deceased sustained as many as six injuries on his person, out of which injury nos.1 and 2 were on the head and his parietal bone was found to be fractured. His ribs were also fractured and cause of death was shock and hemorrhage as a result of ante mortem injuries, as it appears from the post mortem report of the deceased. PW2 Dr.C.L Katiyar who conducted the post mortem of the deceased in his examination-in-chief and also in his cross examination has stated that the injuries which were sustained by the deceased can be caused by spade from its sharp edges side as well as from the blunt side and he has also stated that the death of the deceased would have been possible at 11.30 a.m. on 5.7.1982 and the other injuries could be caused from the reverse side of spade.

40. So far as the argument of learned counsel for the appellant that the deceased had taken food few minutes before the incident but his stomach was found to be empty does not contain any substance as PW1 has stated that when the deceased was brought to the house after he had received injuries from the place occurrence, then he vomited the food which he had taken and also vomited blood, hence, in such a situation the stomach which was found to be empty, was a natural phenomenon and doctor has also deposed about the said fact on a query made by the trial court which appears from his evidence.

41. Learned counsel for the appellant has submitted that the injury no.1 and 2 cannot be caused by spade but the said arguments is also not acceptable in view of evidence of PW2 who has stated that the injury nos. 1 and 2 can be caused by spade.

42. So far as the argument of learned counsel for the appellant that PW1 did not sustain any blood stain on her clothes though she had put a towel on the head of the deceased from where the blood was oozing out which raised doubt regarding her presence at the place of occurrence, is also not of great significance as from the evidence of PW1 it is apparent that that she had only put a towel on the wounds from which the blood was oozing and the towel as well as underwear which were produced before the trial Court, both were blood stained and she has nowhere stated that she embraced her husband after the incident. Thus, on this count alone the presence of the PW1 at the place of occurrence cannot be suspected.

43. So far as the PW2 is concerned, though his presence at the place of occurrence has been assailed by the learned counsel for the appellant but from his evidence also it is apparent that he was present at the place of occurrence, witnessed the incident and also accompanied the deceased along with PW1 to the hospital for his treatment.

44. The defence version which has been given by the appellant that the was falsely implicated in the present case only on account of the partition of the family ornaments which was with the deceased and his wife PW1 as he demanded the same and they refused for the same, goes to show that he for that very reason also had a strong motive to commit the murder of the deceased with whom he was having previous uncordial relations, so much so that they were living separately and they were not on talking terms, which is evident from the evidence of PW1.

45. The finding of conviction and sentence recorded by the trial Court against the accused-applicant does not suffer from any infirmity which may call for any interference by this Court. The prosecution has proved its case beyond reasonable doubts against the accused appellant.

46. After scanning the entire evidence on record, we are of the opinion that the conviction and sentence of the accused appellant for the offence he is charged with by the trial Court requires to be upheld by this Court, which is hereby upheld accordingly.

47. The appeal lacks merit. It is, accordingly, dismissed.

48. The accused is on bail, his bail bonds and sureties are cancelled. He shall be taken into custody forthwith to serve out the sentence, as has been awarded by the trial Court.

49. Let a copy of this order along with the lower court record be sent to the trial Court concerned for its immediate compliance forthwith.

 (Dinesh Kumar Singh-I, J.)    (Ramesh Sinha,J.)
 
Order Date :-15.03.2019  
 
NS