Honble GARG, J.–This appeal from jail has been filed by the accused appellant against judgment and order dated 28.2.2003 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 112/2001 by which he convicted the accused appellant for the offence under Sections 302, 307, 394 and 460 IPC and sentenced him in the following manner:-

Name of appellant Convicted u/s Sentenced awarded

Mahaveer 302 IPC Imprisonment for life and to Pay fine of Rs. 10000/-, in default of payment of fine, to further undergo 2 months SI.

307 IPC Five years RI and to pay Fine of Rs. 5000/-, in default of payment of fine, to further Undergo two months SI.

394 IPC Three years RI and to pay Fine of Rs. 5000/-, in default of payment of fine, to further Undergo two months SI.

460 IPC Five years RI and to pay Fine of Rs. 10000/-, in default of payment of fine, to further Undergo two months SI.

All the aforesaid substantive sentences were ordered to run concurrently.

(2). Since this appeal was preferred by the accused appellant from jail and he was not represented by any counsel, therefore, this Court vide order dated 25.5.2004 appointed Shri R.S. Gehlot as Amicus Curiae to argue the case on behalf of the accused appellant and he has argued the case.

(3). It arises in the following circumstances:

On 3.8.2001 at about 6.15 AM, PW15 Deepa gave a Parcha Bayan Ex.P/27 to PW16 Abhay Singh, who was at that time SHO, Police Station Begu stating inter-alia that the accused appellant is son of her elder father and thus, in relation he is her brother and on 2.8.2001 in the night at about 9.00 PM, he came to her house. It was further stated by PW15 Deepa that her father had already died and she had no real brother and therefore, accused appellant used to make frequent visit to her house. It was further stated by PW15 Deepa that on 2.8.2001 at about 11.00 PM, after eating food, she, her mother Nandu (hereinafter referred to as the deceased) and accused appellant all slept and she was sleeping alongwith her mother (deceased). It was further stated by PW15 Deepa that in the night he heard the cries of her mother (deceased) and when she switched on the bulb, she found that the accused appellant was armed with knife and he was giving knife blows to her mother (deceased) and he was also saying ``where the ornaments and money were lying and when she intervened, she was also giving knife blows by the accused appellant. It was further stated by PW15 Deepa that thereafter, she went near the window and after opening window, she cried for help and some persons, who were repairing tractor, heard the cries and they also cried and upon this, accused appellant reached on the roof and when she took care of her mother (deceased), she found that deceased had already died and this incident had taken place near about 3.30 AM on 3.8.2001 and thereafter, the persons, who were repairing tractor, and police came there and they took her to the hospital. It was further stated by PW15 Deepa that accused appellant had come with the intention to commit murder of deceased and to take money and ornaments and further, he also intended to take over the property of the deceased.

On this Parcha Bayan Ex.P/27, police registered the case and chalked out regular FIR Ex.P/28 and investigation was conducted by PW16 Abhay Singh.

During investigation, site plan Ex.P/6 was got prepared by PW16 Abhay Singh and the fard of panchayatnama of dead body of deceased was also got prepared and the same is Ex.P/7. Through fard Ex.P/8, clothes of deceased i.e. orni (Article 11) stained with blood was seized by PW16 Abhay Singh.

From the place of occurrence, blood sample on cotton (Article 12) was also taken by PW16 Abhay Singh and the same was seized through fard Ex.P/29 in presence of PW14 Bhanwarlal and PW10 Mohanlal. Through fard Ex.P/31, blood stained salwar (Article 9) and kurta (Article 10) belonging to PW15 Deepa were seized by PW16 Abhay Singh in presence of PW14 Bhanwarlal and PW10 Mohanlal.

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