IMPORTANT POINT
The presence of an injured witness at the place of occurrence cannot he doubted.

JUDGMENT

Kuldip Singh, J. - Jaibir respondent was convicted under Section 302, I.P.C. for the murder of his brother Harbir and was sentenced to death by the Trial Court. He was also convicted and sentenced under Section 324 I.P.C. for inflicting injuries on Dharamwati wife of deceased Harbir. The High Court on appeal set aside the conviction and sentence of Jaibir and acquitted him of the charges. This appeal against acquittal is by complainant Dharamwati.

2. Jaibir, Tej Pal and Rambir are real brothers of deceased Harbir. All the four brothers were living in the same Ahata. Jaibir was in service at Aligarh at the time of occurrence. He had developed illicit relation with the wife of Tej Pal and on this account Harbir and his wife Dharamwati separated from the other three brothers and started living in a separate room in the same Ahata. There were constant quarrels between Dharamwati and the wife of Tej Pal. This is said to be the reason for the assault in question.

3. The prosecution case is that on March 7, 1976 at about 12 Oclock Jaibir called Rarbir to his room. Dharamwati also followed her husband. Jaibir got infuriated on the uncalled for presence of Dharamwati and attacked her with kirpan. On Harbirs intervention he was given a kirpan blow by Jaibir which pierced through his stomach. Harbir was taken to the hospital where he died a result of the injuries the same day at 10.0P.M. Dharamwati sustained four injuries with a sharp-edged weapon.

4. The prosecution examined Dharamwati (P.W. 1) and her daughter Murli aged about 8 years (P.W. 3) as eye-witnesses. Accused Jaibir put up a plea of alibi and alleged that on the date of occurrence he was at Aligarh where he was in service. He examined Sabha Chand (D.W. 1), I.A. Khan (D.W. 2) and N.S. Chauhan (D.W. 3) in his defence.

5. The learned Sessions Judge believed Dharamwati and Murli and rejected the evidence of the defence witnesses. He convicted Jaibir under Section 302 I.P.C. and Section 324 I.P.C. and sentenced him to death and further two years rigorous imprisonment on the two counts.

6. On appeal the High Court came to the conclusion that Dharamwati and Murli were not reliable witnesses. Believing the defence version the High Court acquitted Jaibir. This appeal is by the complainant Dharamwati against the judgment of the High Court.

7. The High Court rejected the testimony of Dharamwati on the following reasoning:

(1) In the first information report Dharamwati mentioned that after her husband Rarbir had fallen down Tej Pal came and assaulted her with a hammer. In her cross-examination she stated that Tej Pal gave 2 or 3 hammer blows on her head. Dr. R.K. Jain on the other hand did not find any hammer injury on her person. According to the High Court she made an attempt to falsely rope-in Tej Pal.

(2) According to the prosecution case Jaibir gave injuries to Dharamwati and Harbir in his room. Dharamwati admitted in her cross-examination that blood from her injuries fell on the ground. The investigating officer inspected the site on March 9, 1976 and he did not find any blood in the room. According to the High Court since no blood was found from Jaibirs room the prosecution story as narrated by Dharamwati regarding the place of occurrence could not be believed.

(3) Sabha Chand (D.W. 1) uncle of the deceased and the appellant deposed that Harbir and Smt. Dharamwati were injured at about 8 or 9 A.M. in their Chak and that-Smt Dhararnwati of him that they were assaulted by some Sardars who were plucking sugarcane from their fields. Sabha Chand further stated that Smt. Dharamwati did not allow him to lodge report and she asserted that the report would be lodged after the arrival of her nephew and relations.

(4) Jaibir in his bail application dated March 23,1976 pleaded alibi, According to the High Court prosecution knew that Jaibir would set up the same plea at the trial and for that reason Dharamwati in her statement stated that Jaibir had come to the vill