JUDGMENT

Singh, J. -- 1 The appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] against the judgment dated 28.6.2011 passed by the Court of 3rd Additional Sessions Judge, Indore in S.T.No.1042/2009, whereby the appellant has been convicted under section 302 of Indian Penal Code, 1860 (in short IPC) and under Sec 25(1)(1-B) of Arms Act and sentenced to undergo life imprisonment with fine of Rs. 1,000/- and 1 year R.I. with fine of Rs. 500/- with default stipulation.

2. Prosecution story in brief is as follows :

(i) About fifteen years ago complainant Saroj Kashyap's husband deceased Surendra Kashyap purchased a hath thela placed near Mahalaxmi Temple, opposite to Rajwada Indore from the appellant Basant Kala for an amount of Rs. 40,000/- and ran a shop of bangles therein. Appellant occasionally used to take an amount of Rs. 1,000/- as rent from the deceased and when the deceased denied to give the rent amount, appellant got angry and was having animosity with him. On 29.6.2009, at about 8:30 p.m. when deceased was going towards Rajwada Gate, appellant came there from opposite direction and with an intent to commit his murder inflicted two knife blows on his chest, due to which he sustained grievous injuries and cried for help saying “ mujhe Basant Kale ne chaku mara hai”. Complainant – Saroj, her nephew Mahendra and neighbour Shopkeeper Ravi ran towards deceased to see the incident, soon whereafter, appellant ran away from the spot.

(ii) Complainant - Saroj , Mahendra and Ravi immediately took the deceased to Arpan Hospital and thereafter to M.Y. Hospital Indore in an Auto rickshaw where at about 9:07 p.m. he was declared dead. On the same day, at about 9:17 p.m. on the basis of telephonic information received from M.Y. Hospital, HC Shivram Singh registered the merg intimation report (Ex. P-4) at Police Station, Sarafa, Indore. Inspector G.S. Chadhar rushed to M.Y. Hospital and at about 9:10 p.m. recorded dehati nalishi (Ex. P-3) on the basis of statement of complainant - Saroj. On the same day, he inspected the place of incident and prepared spot map (Ex. P-8), seized plain and blood soaked soil from the place of incident, as per seizure memo (Ex.P-9) and recorded statements of the complainant as well as witnesses Mahendra, Ishant, Ravi and Karan Singh.

(iii) On the next day i.e. on 30.6.2009, ASI Gajanand went to M.Y. Hospital Indore, called the witnesses issuing safina form (Ex.P-5) and prepared naksha panchayatnama(Ex. P-6) of deceased's body and vide letter (Ex. P-23) sent the same for post-mortem examination. On the same day, at about 12:16 p.m. Dr. N.M. Unda conducted post-mortem examination of the body of the deceased and found following injuries on his body :

(a) Stab injury present on the left side of chest, 14.0 cm above and 1.0 medial to left nipple just below the clavicle mid point, 2.2. x 1.50 cm deep to the thoracic cavity. Obliquely placed cut mark present in the underneath vascular. Structure thoracic cavity and lung tissue upper lobe left side cut marks in lung tissue 2x1 cm deep, total depth. 12.0 cm, direction of wound is meteropostuing shift downwards. One end of the wound is narrow clean cut and other end is slightly broad and lacerated.

(b) Stab wound present on the left side of chest wall just over the nipple and are of a slightly obliquely placed. Size of the wound is 2.5 x 1.50 cm, deep to the lung border and heart. Cut mark size on lung tissue and heart are 1.0 cm through and through the heart wall and its width is 0.5 cm in the bone. Total depth is measured in the heart cavity to extend 12.0 cm. One end of the wound is slightly broad and lacerated, left margin clean cut and narrow.

Dr. N.M. Unda prepared post-mortem report (Ex. P-23 and P-24) and opined that deceased died due to shock and hemorrhage as a result of stab injuries to the chest. Both the injuries were caused by hard, sharp and penetrating object and are sufficient to caus