BYAS, J.—This is a jail appeal by accused Bhaggha against the judgment of the learned Sessions Judge, Udaipur, dated January 11, 1979 convicting the appellant u/s 302 I.P.C. and sentencing him to imprisonment for life.

2. Briefly stated the prosecution case is that the deceased victim Bhima was the real uncle of the accused-appellant Bhaggha. They resided in village Majra, Kendriabore, P.S. Bekria, Distt. Udaipur. In the evening of 26.12.72 the deceased victim and the accused picked up certain quarrel and they quarreled with each other. After some time the accused shot an arrow towards Bhima which hit him in the left side of his chest. The injury proved fatal. Bhima passed away instantaneously on the spot P.W.7 Teja went to Police Station Bekria and verbally lodged report Ex. P/8 of the occurrence at about 1.00 A.M. on 27.12.72. The policy registered a case and took up the investigation. The Investigating Officer arrived on the spot of occurrence and prepared the inquest report and seized the blood stained soil from there. The postmortem examination of the victims dead body was conducted by P.W.I Dr. Khyali Lal the then Medical Officer Incharge, Govt. Dispensary, Gogunda, by 1.00 P.M. on 28.12.72 and the Doctor noticed the following wounds on the victims dead body:–

"1. EXTERNAL APPEARANCE

1. Condition of subject-stout, emaciated, decomposed, & c-Stout, Rigor mortis present Nail, Pale.

2. Wounds-position, size character

3. Bruises-position, size nature

(1) Stabbing wounds 1" x1/4" x 3-1/2" spindal shaped, one angle is sharp margins are inverted, on probing wound directs back wound and slightly upward and inward, situated 1-1/2" above and medial to left nipple.

(2) Wound 1-1/2" x 3/4" above left elbow joint posterior aspect.

(3) Wound 1" x 3/4" on elbow joint posterior aspect.

4. Mark of ligature on neck, dissection & c.

5. Condition of pupils. Eyes half opened, conjuctives pale cornea luster less and opaque pupils dilated.

III. THORAX

1. Walls, Ribs and Cartilages.2. Pleurae6. Pericardium7. Heart. - There is wound in thoracic wall 1" x 1/4"x 3-1/2" in third intercastal space left side passing to thoracic cavity at middle and lower border of left third rib. Third rib is fractured at mid point. Thoracic covity is filled with dark coloured fluid blood and blood clots. Pericardium and Heart covered with clotted blood. There is wound 3/4" x 1/4" in left ventricle, left side is empty right side contains small amount of dark coloured fluid blood.

3. Laynx and tracheae - Healthy

4. Right lung - Healthy

5. Left lung - Healthy

8. Large vessels - Healthy."

3. In the opinion of Dr. Khyali Lal the cause of death of the victim was shock & excessive internal haemorrhage from heart wound. He issued Post-Mortem Examination Report Ex. P/l. The accused absconded after committing the offence and remained absconding for a pretty long time. He was ultimately arrested on 7.12.76.

4. The police submitted a challan against him in the court of Addl. Munsif and Judicial Magistrate (3), Udaipur, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge u/s 302 LP C. to which he pleaded not guilty and faced the trial.

5. During trial the prosecution examined 9 witnesses and filed some documents. In defence the accused examined one witness. The defence taken by him was that of elibi. On the conclusion of trial the learned Sessions Judge found the charge duly proved against the accused-appellant. No merit was found in the defence put forward by the defence witness. The accused was convicted and sentenced at the very out set.

6. We have heard Shri Suresh Kumbhat, the learned Amicus-curiae for the accused-appellant and the learned Public Prosecutor. We have also gone through the case file carefully.

7. Before proceeding further we may point out that the evidence against the accused is that of the dying declaration of the deceased-victim Bhima alleged to have been made by him before P.W.4 Harma and P.W.5 Kalu. Both these witn

Click Here to Read the rest of this document