Jai Bhagwan vs The State
1997 Latest Caselaw 536 Del

JUDGMENT

N.G. Nandi, J.

1. The appellant Jai Bhagwan S/o Rameshwar stands convicted in Sessions case No. 223/90 in F.I.R. No. 30/90 for the offence under Section 302, I.P.C. by the learned Additional Sessions Judge, Delhi.

2. The facts leading to the filing of the present appeal assailing the conviction and sentence imposed, shortly stated, are that Dharam Pal (deceased) and Jai Bhagwan (convict/appellant) were residing in the neighbourhood in Village Surehara; that a plot of land admeasuring 100 sq. yds. was said for Rs. 9,000/- by Dharam Pal and his brother to Jai Bhagwan that half of the sale consideration was paid whereas half remained payable by Jai Bhagwan; that on demand, there was refusal to pay the remaining sale consideration and Jai Bhagwan used to utter filthy language; that on 9th April, 1990 at about 12.30 p.m. Kartar Singh, brother and Gian Chand, brother-in-law of Dharam Pal had come to and were in the house of Dharam Pal and both were talking with each other; that at about 1 p.m. both heard the cries "Bachao-Bachao"; that both came out of the house and saw Jai Bhagwan, residing in the adjoining house, was attacking Dharam Pal with an axe whereupon both raised cries and Jai Bhagwan ran away towards the well along with the axe; that Kartar Singh and Gain Chand tried to apprehend Jai Bhagwan but in vain; that Kartar Singh gave a telephonic message to P.S. Jaffar Pur which was recorded as D.D. No. 9A at the police station at 1.30 p.m. informing about the occurrence.

Thereafter the S.H.O. and the other police persons came to the place of occurrence which was near the house of Kartar Singh and Dharam Pal; that statement Ex. PW 10/A of Kartar Singh was recorded, that the S.H.O. recorded the Rukka for registration of the case and the same was sent to the concerned police station on the basis of which formal F.I.R. Ex. PW 2/B was recorded that in the course of the investigation, the statement of the prosecution witnesses were recorded and site plan, Ex. PW 13/A prepared; that vide Seizure Memos, blood soaked earth and controlled earth was lifted from near the dead body and other articles recovered; that the weapon of offence was recovered at the instance of Jai Bhawan; that post-mortem was conducted on the dead body of Dharam Pal; that on completion of the investigation, charge-sheet was filed against Dharam Pal for the offence under Section 302, I.P.C. The prosecution, in order to bring the guilt home to the accused Jai Bhagwan, adduced oral as well as documentary evidence. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code with regard to the circumstances incriminating against the accused emerging from the prosecution evidence. The learned trial Judge, appreciating the prosecution evidence considering the statement under Section 313 of the Criminal Procedure Code and the defense evidence, found the accused guilty for the offence charged and sentenced the appellant to suffer imprisonment for life. It is this conviction and sentence imposed which have been assailed in this appeal by the appellant/convict.

3. It may be noted that the appellant has not disputed the death of Dharam Pal being homicidal. The inquest report Ex. PW 13/C suggests the dead body to be that of Dharam Pal, s/o Hari Singh. The injuries were found on the dead body. PW 8, Dr. L. T. Ramani conducted the post-mortem on 10th April, 1990 on the dead body of Dharam Pal. The post-mortem report has been proved as EX. PW. 8/A. Thus, it is sufficiently suggested that deceased Dharam Pal, S/o Hari Singh died a homicidal death in the occurrence of 9th April, 1990.

4. One of the arguments on behalf of the appellant is that as per the F.I.R. and the charge framed under Section 22 of the Code of Criminal Procedure against the appellant, the place of incident is near Panchayat Ghar whereas the prosecution witnesses, particularly PW 10 and 11, and the site plan Ex. PW. 1/A do not refer to Panchayat Ghar; that in Column 4 of the F.I.R. the place of occurrence is near Panchayat Ghar, Village Surehara, that no question has been put to the accused under Section 313 with regard to place of occurrence being near Panchayat Char and also with regard to C.F.S.L. report. In this regard reliance is placed on the decision in case of Sharad v. State of Maharashtra, (Head Note 'C').

In the statement, Ex. PW. 10/A, which is the complaint given by Kartar Singh, it has been stated that on 9th April, 1990, in the noon when he came to take lunch, he found his brother-in-law Gian Chand also in the house of Dharam Pal and when he was talking with his brother-in-law in the house of Dharam Pal, he heard the noise/cries and he came out from the house with his brother-in-law and witnessed Jai Bhagwan, residing in the neighbourhood of his brother, assaulting Dharam Pal with an axe he was holding with both his hands. Thus, according to the complaint, the complainant witnessed the incident on coming out of the house of Dharam Pal meaning thereby that the incident had taken place outside the house of Dharam Pal. In column 4 of the formal F.I.R. Ex. PW. 2/B, the place of occurrence is shown to be the street near Panchayat Ghar at Village Surehara.

5. PW 1 prepared the map. He stated that he inspected the place of incident on 28th June 1990 and at the pointing of PW 10, Kartar Singh, he prepared the scaled plan Ex. PW 1/A. Perusal of Ex. PW 1/A suggests the place of occurrence to be in a lane/street which is south north. At the southern and of the said lane/street a bye-lane/gali, east west in direction, intersects and at the southern side of this bye-lane/gali, the house of Jai Bhagwan (appellant) has been shown. To the west, there is house of Dharam Pal (deceased) and to further west, there is vacant plot of land PW 13, I.O. has stated in his evidence that he prepared the site plan. Ex. PW 13/A along with correct marginal notes, it is pertinent to note that on Ex. PW 13/A, there is no cross-examination of the witness by the defense. Perusal of Ex. PW. 13/A further suggest that at the northern end of the lane/street, which is north-south, there is Panchayat Ghar well. Appreciating Ex. PW. 1/A and Ex. PW 13/A, in both these the vacant plot of Dalip Singh of Village Surehara has been shown to the west of this lane/street and to the east of this lane/street, the plot of Narain Singh has been shown. Further towards north in the said lane/street, the vacant plot of land of Akhari has been shown on the eastern side. It appears that at the northern end of this lane/street which is north-south, Panchayat Ghar well is situated. It may be appreciated that in column 4 of the F.I.R. Ex. PW 2/B, the place of occurrence is shown to be the street near Panchayat Ghar. Appreciating Ex. PW. 1/A and Ex. PW. 13/A, we do not find any discrepancy in the place of occurrence. It is a way of describing the place of occurrence which may differ from person to person. Looking at Ex. PW. 1/A, the place of occurrence could be said to be opposite the vacant plot of Dalip Singh, it can as well be described as opposite the vacant plot of Narain Singh and/or opposite the house of deceased, it can as well be described in the gali/street opposite Panchayat Ghar well, depending upon the perception of the person describing the place of occurrence in his own way and manner. Under Section 313 of Criminal Procedure Code, a question has been put to the accused that PW. 10 and 11, upon hearing the noise 'Bachao-Bachao', came out of house No. 73, Roshan Vihar Najafgarh and found the accused holding an axe and hitting the same on Dharam Pal. Thus, the place of occurrence suggested to the accused is opposite House No. 73, Roshan Vihar, Najafgarh which is stated to be the house of decease, Dharam Pal.

6. Question No. 12 in the statement under Section 313 indicates that it was suggested to the accused herein on 4th May, 1990, all the nine sealed parcels with sample seal were sent to C.F.S.L. through Constable Maha Singh vide R/C No. 4/21 and on 5th July, 1990, eight parcel sealed with the seal of C.F.S.L. were brought by S.H.O. from the office of C.F.S.L. In question No. 7, it is brought to the notice of the accused that the result of C.F.S.L. Ex. PW. 13/D was brought to the notice of the accused under Section 313 of the Criminal Procedure Code. It cannot be said that the accused was not put the question under Section 313, Criminal Procedure Code with regard to the place of occurrence as well as findings in Ex. PW. 13/D, C.F.S.S. report. It was open to the accused to offer whatever explanation he wanted to with regard to the place of occurrence as well as the report Ex. PW. 13/D of the C.F.S.L. It cannot be said that the accused was not given any opportunity to offer explanation, if any, to the findings given in C.F.S.L. report, Ex. PW. 13/D. We do not find any substance in the contention in this regard advanced on behalf of the appellant.

7. It has been the submission on behalf of the appellant that axe, Ex. PW. P1 is not the weapon of evidence and that the said weapon has been planted on the accused, that according to the post-mortem notes and the evidence of PW 8, there are four minor injuries. If according to the prosecution the injuries were caused by sharp edged, then how the injuries by blunt substance were caused by the said the said axe. PW 8 stated in his evidence that external injuries No. 3 and 4 were caused by sharp edged weapon and other injuries were caused by blunt weapon; that the injuries to the scalp were sufficient to cause death in the ordinary course of nature, that the witness was shown a sealed packet by the police and on opening, it was found to contain an axe; that the blade of the same contained blood like stains on both the sides, the sharp cutting edge was 10 cm. long; that the injuries found on the dead body of, the deceased were possible by this axe. According to the prosecution, the injuries in the incident were caused by axe, Ex. P-1. PW 8 has stated that the injuries on the dead body were possible by the axe shown to him while seeking opinion and the blood stains were found on both the sides of the blade.

8. As far as the recovery of the axe Ex. P-1 is concerned, it has been deposed by PW 10 that along with PW 13 and PW 11, the witness in the Government vehicle went in search of the accused; that at about 7 p.m. when all of them reached Jhuljhuli Mod, they located the accused standing under the trees near the bus stand under the cover of wild trees, that the accused stated that he had kept the axe in the pond by the side of a culvert in Dadar Johar and he made disclose statement Ex. PW. 10/H which was signed by this witness; that thereafter the accused took the police party to Dadar Johar and pointed out the place and produced an axe from underneath the culvent, that the accused signed the seizure memo Ex. PW. 10/J vide which axe Ex. P-1 was taken into possession with the seal. It has been stated in the cross-examination that they had gone in search of the accused via Dadar Johar, Dohar, Canal, jungle area and then to Jhuljhuli Mod; that it took about 2 to 2-1/2 hours in search of the accused; that it took about 20 to 25 minutes at Dodar Johar and from that Johar all of them came to police station. It is suggested from the evidence of this witness that he left in company of the police party in the evening in Government vehicle in search of the accused and the accused was located at 7 p.m. and therefrom at the instance of the accused, they came to the pond by the side of a culvert in Dadar Johar. It is also suggested from the evidence of this witness that the accused took the police party to Dodar Johar and pointed out the place and produced the axe from underneath the culvert. It is pertinent, to note that the witness does not say that it was in his presence that the accused took out the axe from underneath the culvert and produced the same.

PW 11, in examination in chief, has stated to the effect that at about 5 p.m. the police took the witness and PW 10 in police jeep in search of the accused and they searched for the accused for considerable time; that at about 7 p.m. when they had reached Jhuljhuli Mod, they saw the accused standing under the cover of bushes at the Mod; that the accused was apprehended and interrogated. The accused told the police that the 'Kulhara' was concealed near the culvert at Dadar Ka Johar. From there, the accused pointed out the place Dadar Ka Johar. The accused took out the 'Kulhara' from underneath the culvert and produced it to the police and that the same was taken in possession by the police vide memo Ex. PW. 10/J which bears the signatures of the witness. In the cross-examination, it has been stated that the police made enquiries from the accused for about 5/7 minutes after he was aprehended. Then the police took the accused, the witness and others to various places and then they all reached the place wherefrom 'Kulhara' was recovered. It is admitted that after accused was apprehended, the police took all of them for an hour or two and then reached Dadar Johar where 'Kulhara' was recovered that the witness kept sitting in the jeep which was parked over the culvert while the accused and the police went underneath the culvert. This part of the evidence of the witness suggests that police made enquiries from the accused for about 5/7 minutes after he was apprehended and then the police took the witness and the accused to various places and then they reached the place where 'Kulhara' was recovered. This would suggest that after interrogation for about 5/7 minutes, the police took the witness and the accused to various places. If the accused had made a disclosure statement vide Ex. PW. 10/H, then why the witness and the accused were taken by police to various places and that they finally reached the place where 'Kulhara' was recovered. The part of the evidence reproduced above itself suggests that after the accused was apprehended, the police took the witness and others for about an hour or two and then reached Dadar Johar where the 'Kulhara' was recovered. It is not suggested that the accused led the police party and the witness to the place wherefrom axe was recovered. Had that been so, the police party and the witness would not have moved to various places for about an hour or two. It is pertinent to note that the witness kept sitting in the jeep which was parked over the culvert while accused and police went to the place underneath the culvert meaning thereby that the witness did not go to the place wherefrom the axe was taken out by the accused and produced to the police. As far as the evidence of this witness is concerned, it is suggested that the witness kept sitting in the jeep and the accused and the police went to the place underneath the culvert and returned with an axe. It would not suggest that it was in presence of the witnesses that axe Ex. P-1 was taken out by the accused from the place underneath the culvert and produced in presence of the witness and taken in possession by the I.O.

9. The prosecution has examined PW. 12 as a witness of recovery in a such as according to PW. 12, it was in his presence that axe, Ex. P-1 was recovered vide Sizure Memo Ex. PW. 10/J pursuant to the disclosure statement, Ex. PW 10/H made by the accused. As far as this witness is concerned, the contention by the learned counsel for the appellant is that this witness was never present and that he has been concocted. It has been deposed by PW 13 that at the time of recovery of shirt and axe, public witness Jagdish Kumar (PW 12) was joined meaning thereby that PW 12 was not present prior to the recovery of shirt vide Ex. PW 10/F and axe vide Ex. PW. 10/J. It is pertinent to note that neither PW. 10 nor PW. 11 depose in their evidence that PW 12 was present at any time. According to PW 12, on 9th April, 1990, he was going to Village Jhulhuli in connection with the repairs of a tractor 'Hero' since he was running workshop in Village Sidipur; that when his bus stopped at the turning of Jhuljhuli, he saw Kartar Singh, a friend standing there, and police was also with him and seeing this, the witness got down from the bus and inquired as to what was the matter and thereafter the witness deposed that on interrogation the accused told that he had kept axe near culvert at Dadar Johar and witness signed the disclosure statement, Ex. PW. 10/H. It may be seen that PW. 12 is a chance witness. His presence at the Jhuljhuli bus stand cannot be said to be natural as according to him, he was going to village Jhuljhuli in connection with repairs of a tractor 'Hero' and saw PW 10 at the bus stand with police persons. It appears that with a view to make PW 12 present for the purpose of signing PW 10/H and PW 10/J, the witness has been deposing that he was going to village Jhuljhuli and he accidentally saw PW 10 standing there with police and the witness got down. The evidence of PW 12 does not inspire confidence so as to hold that he was present as deposed by him. It may he appreciated that PW 10 and 11 have referred to each other being the member of the party who went in search of the accused and in whose presence the accused made the disclosure statement, Ex. PW 10/H and produced the weapon of offence axe, Ex. P-1 which was seized vide Memo Ex. PW 10/J. Appreciating the evidence of PWs 10, 11 and 12, we are not inclined to believe that PW 12 is a witness to the discovery statement Ex. PW. 10/H and the seizure memo Ex. PW 10/J.

10. PW 9 Moharrar Malkhana, S. I. Bhim Singh has deposed in his evidence that S.H.O. S. S. Malik P.S. Jaffar Pur deposited six parcels sealed with the seal of 'SP' which were entered at serial No. 95 in the register as per the details of the Seizure Memo. Perusal of Ex. PW 9/A and Ex. PW9/B, extracts from the register of Malkhana maintained at P.S. Jaffar Pur Kalan, Delhi Suggest that item No. 95 pertains to case F.I.R. No. 30 dated 9th April, 1990 under Section 302, I.P.C. P.S. Jaffar Pur Kalan, Delhi and the name of the S.H.O. has also been mentioned. It is suggested therefrom that sealed parcel containing axe with the seal of 'SP' was deposited in the Malkhana and that the said axe has been taken on 10th April, 1990 to the Dead House, subzi Mandi from Malkhana by Mr. S. S. Malik, Inspector/SHO for the purpose of obtaining the opinion. It is further suggested that the said axe was returned on 17th April, 1990 that from Malkhana, articles contained in parcels 1 to 9 with the seal of 'SP' were sent vide RC No. 4/2 for being deposited in the office of C.F.S.L. on 4th May 1990, that the articles were returned to the Malkhana on 5th July 1990 from the office of C.F.S.L. The evidence of PW 9 and PW 13 suggest the seal of 'SP' on the sealed parcel which contained axe. The seizure memo Ex. PW. 10/J also refers to the cloth parcel sealed with the seal of 'SP' contained axe Ex. P-1.

11. The evidence of PW 8 and the post-mortem notes Ex. PW 8/A suggest the axe shown to the witness for the purpose of seeking opinion was in a parcel containing seal 'SB' PW 13, in his evidence, does not suggest that he took the axe Ex. P-1 from Moharrar Malkhana and showed it to PW 8 for opinion. According to the post-mortem report, Ex. PW 8/A, the axe showed blood like stains on both sides. Neither PW 10, PW 11 nor PW 13 deposed to the effect that when axe Ex. P-1, was recovered, it contained blood on both the sides of the metalic part of the axe. Seizure memo Ex. PW 10/J also does not refer to stains of blood on both the sides of the metalic part of the blade of the axe. From this it appears that the axe shown to PW 8 which contained blood like stains on both sides of the metalic part of the blade of the axe must be a weapon other than the weapon Ex. P-1 stated to be weapon of offence by the prosecution. In the present case, Ex. P-1 has not been shown to PW 8 at the trial. It need hardly be said that the doctor who conducted the post-mortem examination and gave his opinion considering the weapon shown to him ought to have been shown to the doctor at the trial so as to prove the contents of the post-mortem report especially the weapon with which injuries noted in Ex. PW 8/A could be caused and the opinion part in relation to the weapon of offence produced by the prosecution as Ex. P-1. In view of the discrepancy in the seal which was found on the parcel namely seal of 'SB' when the weapon was shown at the time of post-mortem examination for the purpose of seeking opinion and the seal of 'SP' on Ex. P-1, we are inclined to hold that Ex. P-1 was not the weapon shown to PW 8 for the purpose of seeking opinion noted in Ex. PW 8/A. We are at a loss to understand as to why axe Ex. P-1 was not shown to PW 8 at the trial.

12. One of the arguments advanced on behalf of the appellant is that according to the prosecution, one chappal of the accused was found from near the dead body at the place of occurrence whereas when the accused was apprehended at about 7 p.m. in the evening, the accused had one chappal in his left foot, that it is not probable that the accused would move with one chappal in left foot till evening.

PW. 13 deposed in his evidence that chappal Ex. P-4 was recovered from the place of incident vide memo Ex. PW. 10/D. Ex. PW. 10/D, the seizure memo, suggests that one used blue chappal of size of No. 8 of the right foot was lying near the wall situated on the eastern side of the dead body at the place of occurrence and the same has been recovered. Thus, blue chappal of right foot has been recovered from near the dead body at the place of incident. Referring to report of the C.F.S.L. it has been contended that the sealed cloth parcel contained blue and white coloured Hawai Chappal of right foot. PW 10 has stated in his evidence that the accused was wearing a chappal of blue colour in his right foot. It is also suggested that Ex. P-4 is the Hawai chappal which was recovered from the spot and Ex. P-3 from the accused. PW. 11 stated that one old blue chappal of right foot was lying near the dead body of Dharam Pal which was seized and kept in a Pulanda and sealed. Thus, it would be seen that the Hawai Chappal of the right foot recovered from the place of incident vide seizure memo Ex. PW. 10/D and the Hawai Chappal of the left foot recovered from the accused vide seizure memo Ex. PW. 10/G are of blue colour. It may also be appreciate that in the report of the C.F.S.L. article parcels No. 8 and 9 are said to contain blue and white colour rubber Hawai Chappal of right foot and left foot respectively. It may be seen that Hawai Chappal of blue colour appears everywhere. It may also be appreciated that the colour of the rubber strip and the upper portion of the sole where the foot rests may not necessarily be the same and that is why we find the word blue and white in the C.F.S.L. report. No importance can be attached to this in view of the fact that whatever has been recovered from the place of occurrence is a blue Hawai Chappal of the right foot and from the accused blue Hawai Chappal of the left foot.

13. One of the arguments advanced on behalf of the appellant is that no special report was sent to the Area Magistrate at all which would create doubt about the presence of the accused and the witnesses at the place of occurrence; that there is violation of Rule 24 of the Punjab Police Rules. In this regard, reliance, has been placed on the decision in the case of Lala Ram v. The State, 1989 Cr. LJ 572. In the said case, Division Bench of this court held that failure to enter substance of F.I.R. in Daily Diary with the names of the accused and the names of the witnesses and the other details of occurrence would be non-compliance with Section 154, Criminal P.C. and Rule 24.1 of the Punjab Police Rules which would mean that at the time of making entry, full facts with regard to the occurrence were not known.

It may be seen that the complaint Ex. PW 10/A was recorded at 3.05 p.m. and sent to the police station for registration of the formal F.I.R. Ex. PW. 2/B was at 3.30 p.m. D.D. No. 9-A, Ex. PW 2/A was received at the police station at 1.30 p.m. which discloses the name of the complainant, the name of the accused and the deceased. This was a telephonic information about the commission of cognizable offence. Ex. PW 2/C is the copy of report No. 10/A of Daily Diary dated 9th April, 1990. It suggests the receipt of a writing and recording of F.I.R. No. 30/90 under Section 302, I.P.C. and the time is 3.30 p.m. Ex. PW 2/C, Report No. 10/A of Daily Diary dated 9th April, 1990 refers to/makes the F.I.R. No. 30/90 part of it, First column of F.I.R. Ex. PW. 2/B refers to D.D. No. 10A dated 10th April, 1990 at 3.30 p.m. In the F.I.R. the entire occurrence with the names of the witnesses PWs. 10 and 11 and the names of the accused, the weapon used in the incident, the motive, etc. have been stated. In view of the fact that D.D. No. 10/A, Ex. PW 2/C makes F.I.R. No. 30/90 P.S. Jaffar Pur Kalan part of it, we do not find any substance in the contention as regards Rule 24.1 of the Punjab Police Rules. PW. 5 Constable Surinder Singh stated in his evidence that on 4th May, 1990, he took the special report of this case from the Duty Officer which the witness delivered at the residence of the Ilaqa Magistrate; that he left the police station at about 4 p.m. that he delivered the copy of the F.I.R. at the residence of the Ilaqa Magistrate at about 5 p.m. In the cross-examination, it has been deposed that the witness cannot tell the address at which he delivered the F.I.R. It is pertinent to note that it is not suggested to the witness that he did not deliver the copy of the F.I.R. at all to the Ilaqa Magistrate nor it is suggested that the same was delivered late to the Ilaqa Magistrate. There is no reason to disbelieve this witness when he says that he left, the police station at about 4 p.m. and delivered the copy of the F.I.R. at the residence of the Ilaqa Magistrate at about 5 p.m. Nothing would turn on the witness being not able to tell the address of the Ilaqa Magistrate where he delivered the copy of the F.I.R. The person may know or able to tell the address of the Ilaqa Magistrate, yet the question would remain whether the copy of the F.I.R. was delivered or not. What is important is that the residence of the Ilaqa Magistrate should have been known/seen by the witness. Simply because the witness is not able to tell/recapitulate the address of the Ilaqa Magistrate, that would not imply that the copy of the F.I.R. was not delivered to the Ilaqa Magistrate, as deposed by the witness. We see no reason to disbelieve this witness as far as the delivery of the special report to the concerned Ilaqa Magistrate, as deposed is concerned. It may also be seen that the timings given by the witnesses are always approximate. The substance of the evidence of this is that he did deliver the special report to the Ilaqa Magistrate around 5 O'clock.

14. One of the arguments advanced on behalf of the appellant is that according to the prosecution witnesses, the deceased had gone out of his house just before PW 10 and PW 11 reached his house and in that case they ought to have been the deceased going out and in absence of that, these witnesses cannot be said to have witnessed the occurrence. The evidence of PWs 10 and 11 suggest that when they reached the house of Dharam Pal, he was not in the house and as told by his mother, he had gone to attend his duty. Now, simply because in F.I.R. page No. 1 it is stated that Dharam Pal was reported to have "just gone" not mean that PW 10 ought to meet Dharam Pal.

15. As far as the main occurrence is concerned, it has been suggested from the evidence of PW 10 that deceased Dharam Pal happened to be his brother; that on 9th April, 1990, he had come to village Surehara in connection with the harvesting of the wheat crop and had gone to the field in the morning; that at about 12.30 p.m. he came to the house of Dharam Pal for taking his lunch that his brother-in-law Gian Chand (PW. 11) was also present in the house; that Dharam Pal was not in the house and had gone to his duty; that while he was talking with his brother-in-law (PW 11), both heard the cries 'Bachao-Bachao' (PWs 10 and 11 came out of the house and saw that at a distance of about 20-25 ft. Jai Bhagwan was hitting Dharam Pal with an axe that he was holding in his hand; that PWs 10 and 11 rushed to catch hold of accident but he managed to run away towards the well; that attempt to apprehend by chasing the accused Jai Bhagwan was in vain; that they returned to the spot and found Dharam Pal dead having injuries with bleeding from his mouth. It may be appreciated that PWs 10 and 11 have given consistent and detailed account of the occurrence, specifically implicating accused Jai Bhagwan in the incident namely causing injury to Dharam Pal with axe. It is suggested from the evidence of both these witnesses that when they came out of the house, they saw Jai Bhagwan inflicting injuries with axe to Dharam Pal. The version given by PW 10 is absolutely consistent with the occurrence stated in the F.I.R. In the cross-examination also, nothing substantial has been brought out from which the presence of PWs 10 and 11 at the place of occurrence could not be said to have been rendered suspicious of the credibility shaken in any manner. It is natural for PW 10 as the brother and PW 11 as the brother-in-law to be in the house of the deceased and it would be natural for them to come out of the house hearing the cries 'Bachao-Bachao' out of curiosity to know as to what has happened and to whom and having seen Jai Bhagwan hitting Dharam Pal with axe in his hands, they would naturally rush to the rescue of Dharam Pal. The incident occurred at about 1 p.m. The evidence on record discloses that having witnessed Dharam Pal having sustained injuries and bleeding from the mouth in the occurrence, PW 10 went to inform the police and gave telephonic information recorded at the police station vide D.D. No. 9A, Ex.PW 2/A at 1.30 p.m. wherein the place of occurrence, the name of the deceased and name of the accused have been informed and at 3.05 p.m. the complaint, Ex. PW 10/A has been recorded at the place of occurrence by PW 13 and the rukka was sent to the police station whereupon the formal F.I.R. was registered at 3.30 p.m.

16. The blood and the controlled earth were lifted from the place of occurrence vide EX. PW 10/B and C; that one Hawai Chappal of blue colour Ex. P-4 was recovered from the place of occurrence vide seizure memo Ex. PW 10/D; that the blood stained shirt Ex. P-2 of the accused was recovered vide memo Ex. PW 10/F; that another Hawai Chappal Ex. P-3 was recovered from the accused vide seizure memo Ex. PW 10/G; that the C.F.S.L. report Ex. PW 13/D to F suggests Ex. 3 brown gauge cloth place, Ex. 5 one shirt having brown stains, Ex. 6 earth described soaked earth are found to contain blood. Ex. PW 13/E suggest Ex. 3 blood stained gauge, Ex. 5 shirt and Ex. 6 blood stained earth were found to contain human blood of 'A' group. It is suggested from the evidence of PW 2 and PW 3 that the doctor conducting the post-mortem gave three sealed pulandas. PW 8 stated in his evidence that clothes and sample of blood were preserved, seated and handed over to the police along with the sample of seal. It is suggested from the evidence that the deceased had the blood of 'A' group. Considering the C.F.S.L. report, Ex. PW 13/D to F, as above, it is sufficiently suggested that the shirt Ex. 5 recovered from the accused contained human blood of "A" group which tallies with that of the blood group 'A' of the deceased.

17. Considering the prosecution evidence as a whole and the consistent and trustworthy ocular version of the occurrence given by PWs 10 and 11 which corroborates the allegations in the F.I.R. Ex. PW 2/B, not showing the weapon of offence namely Ex. P-1 to PW 8 at the trial and Ex. P-1 not being the weapon of offence would pale into insignificance. As far as the involvement of the accused in the incident is concerned, the same is sufficiently establishment by cogent and reliable evidence of PWs 10 and 11 and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused beyond reasonable doubts and there is no room for hypothesis consistent with that of the innocence of the appellant.

18. In our opinion, the evidence on record satisfied the requirements point to the guilt of the appellant and he has been justifiably found guilty of the murder of deceased Dharam Pal. In our opinion, the recording of the finding of guilt against the appellant by the learned trial Judge is consistent with the evidence on record and the legal requirements in this regard.

19. In the result, the appeal being devoid of merits fails and the conviction recorded and the sentence imposed by the learned trial Judge in F.I.R. No. 30/90 P.S. Jaffar Pur Kalan in Sessions Case No. 223/90 are confirmed.

20. Appeal dismissed.