JUDGMENT 1. - By the court : Both these appeals filed by Juhuru, one from the jail & the other through the counsel, are directed against the judgement of the learned Sessions Judge, Alwar, dated 26th of August, 1970, convicting the appellant for an offence under section 302 Indian Penal Code and sentencing him to imprisonment for life. 2. The prosecution story is as follows. There was a panchayat called at the bungalow of Sardar Meo in village Padasala to decide about the construction of a mosque on the night of 3rd January, 1970. Rustam deceased and Juhuru appellant were present in that panchayat. Rustam demanded the return of the earrings of his son's wife which is said to have been taken away by the wife of the accused-appellant. Umrao (P.W.2), who was also present in the panchayat, asked the accused-appellant to return the ear-rings to the wife of Jumme Khan son of Rustam deceased as it was a trifling matter. It is said that some hot words were exchanged between Rustam and Juhuru which enraged Juhuru. Juhuru, who had an axe (tanchal) in his hand, hit in succession three blows on the head of Rustam. Rustam fell unconscious. Juhuru wanted to run away from place but he was caught by those who were present in the panchayat. Rustam was then taken in a bullock-cart to Kishangarh for medical help but he succumbed to the injuries on his way to Kishangarh. Next day, that is, on 4th of January, 1970, report (Ex. P.1) was lodged by the son of the deceased Jumme Khan (P.W. 1) at Police Station Kishangarh and along with the filling of report Juhuru who was taken by the villagers to Kishangarh was presented to the Station House Officer and the axe (article 1) was also handed over to the police authorities. 3. The post-mortem of the dead body of Rustam was performed by Dr. S.K. Sen (P.W.11) who found the following three external injuries:- 1. Lacerated wound 1 cm v 1/2 cm x/2 cm on the posterior aspect of the head. 2. Incised wound 5 cm x 3 cm x 1 cm on the vertex. 3. Lacerated wound 1 cm x 1/2 cm x 1/2 cm on the head between the two parietal eminence. On opening the body the doctor detected the following internal injuries:- 1. Fracture of the occipital bone corresponding to external injury No.1. 2. Incised wound 5 cm x 3 cm x 1 cm on the vertex. 3. Lacerated wound 1 cm x 1/2 cm x 1/2 cm on the head between the two parietal eminence. On opening the body the doctor detected the following internal injuries:- 1. Fracture of the occipital bone corresponding to external injury No.1. 2. Fracture of the right and left parietal bones corresponding to external injury No. 2. 3. Membrane was ruptured. Right & left middle meningeal arteries and veins were found ruptured. 4. Right and left parietal bones and occipital lobe of brain were found lacerated by fractured fragments of the bones. Blood clots were found on the surface of the parietal lobes and occipital lobe. In the opinion of the doctor, death occurred due to the cerebral haemorrhage and shock from the head injuries which were the result of the external injuries Nos. 1 & 2. The external injuries Nos. 1 & 2 were in the opinion of the doctor sufficient in the ordinary course of nature to cause death individually as well as jointly. 4. The axe (article 1) was sent for chemical examination and the Chemical Analyst, who examined the axe, found it positive for blood. It was sent to the Serologist for grouping but as the blood by then had disintegrated and the Serologist could not therefore find whether it contained human blood or not. 5. Juhuru was challaned in the court of the Munsif Magistrate First Class, Kishangarh, from where after committal proceedings he was sent to the court of sessions to stand his trial for an offence under section 302 Indian Penal Code. 6. Juhuru in his statement under section 342 Code of Criminal Procedure admitted his presence in the panchayat and he also did not deny that the deceased had made a demand for the return of the ear-rings from him, but his case is that on his refusal to return the said ornament. Rustam whipped out his knife at him. He caught hold of a hand of Rustam. In this scuffle witness Umrao fell down and then Umrao's son, Hurmat assaulted him with a 'tanchal' (Art.1). He sat down and the 'tanchal' hit Rustam. Then Safeda came & he told Hurmat that he had killed Rustam. Rustam whipped out his knife at him. He caught hold of a hand of Rustam. In this scuffle witness Umrao fell down and then Umrao's son, Hurmat assaulted him with a 'tanchal' (Art.1). He sat down and the 'tanchal' hit Rustam. Then Safeda came & he told Hurmat that he had killed Rustam. If Juhuru is not involved in it, then the entire village will be impleaded and it was at this suggestion of Safeda that the accused was caught and tied down to a tree and thereafter both Rustam & the accused were taken to Kishangarh. 7. The prosecution examined Umrao (P.W.2). Yasin (P.W.3). Dayaram (P.W.4) and Ramswaroop (P.W.5) as eye witnesses who supported the prosecution story in toto. The accused also produced Safeda (D.W.1) as the defence witness who stated that in the panchayat held at village Padasala, which was attended by 60 to 80 persons, he was also present. Rustam demanded the return of his daughter-in-law's 'balis' from Huhuru and the Panchas asked Juhuru to return them. Juhuru denied to have taken any ear rings from the daughter-in-law of Rustam. Then abuses were exchanged between Rustam and Umrao on the one side and Huhuru on the other. Then Juhuru was pushed and Rustam whipped out his knife. Either he wanted to put Juhuru in fear or was aiming that knife at him. Rustam and Umrao then grappled with Juhuru. Elbow of Umrao touched Juhuru who fell down and it is at this that Hurmat son of Umrao stood up and aimed tabbal (tanchal) at Juhuru, but the tabbal did not hit Juhuru and it hit Rustam on his head. Then Umrao, Hurmat and Sultan tied Juhuru with the rope as Rustam was dead so that Juhuru could be implicated for the murder of Rustam. 8. The story of the defence was not given any credence by the learned trial Judge who placed reliance on the testimony of the eye witnesses and convicted the accused for the aforesaid offence against which the present appeals have been filed in this Court. 9. 8. The story of the defence was not given any credence by the learned trial Judge who placed reliance on the testimony of the eye witnesses and convicted the accused for the aforesaid offence against which the present appeals have been filed in this Court. 9. Learned counsel appearing on behalf of the appellant urged that the prosecution case suffers from two infirmities: (1) that the first information report was lodged after a great delay, and (2) that the prosecution witnesses have deliberately suppressed the presence of the knife which was used by Rustam which gives entirely a different complexion to the prosecution case. According to learned counsel, Juhuru, even if the prosecution story is believed, can be said to have used force in the exercise of his self defence as there was great apprehension in his mind about his own life as the knife was whipped out by Rustam who tried to attack Juhuru with that weapon. 10. We have carefully gone through the statements of these eye witnesses Umrao (P.W.2), Yasin (P.W.3), Dayaram (P.W.4) and Ramswaroop (P.W.5). Nothing could be elicited out of their cross-examination to show that the force was used by the accused against Rustam in the exercise of his right of self-defence. The witness, however, denied that Rustam had any knife with him, but from the inquest report it appears that at the time when the report was prepared by the Station House Officer at Kishangarh, a knife was found tied on the waist of Rustam, but this fact that a knife was tied on the waist of Rustam cannot give rise to any apprehension unless the knife was used by Rustam to hit accused-appellant. The knife was closed at the Station House Officer which shows that it was never used by him. It is true that the witnesses have denied the presence of knife at the time of the incident but it was in the night that this incident had taken place and since the knife was not pressed into service either to attack the accused-appellant or to defend himself by Rustam, it is possible that the witnesses might not have seen the knife with Rustam. The denial of the presence of knife with at the time of the incident by the eye witnesses does not in any manner effect the credibility of the witnesses. 11. The denial of the presence of knife with at the time of the incident by the eye witnesses does not in any manner effect the credibility of the witnesses. 11. The defence witness Safeda (D.W.1) has not been believed by the trial court and after having gone through the statement of that witness, we also feel that he is an unreliable witness as he has described the incident in the manner which the accused-appellant himself does not allege in his statement. D.W. 1 Safeda has stated that there was a grappling by Rustam & Umrao with Juhuru but this fact does not find corroboration from the statement of Juhuru himself. The statement of Safeda also does not find corroboration from the medical testimony. According to Safeda (D.W.1), the 'tabbal' was aimed at Juhuru by Hurmat but it hit Rustam which caused his death. We cannot forget that Rustam sustained three injuries on his head which cannot be explained on the basis on the story given out by Safeda (D.W.1). In this view of the matter, we cannot place any reliance on the story unfolded by Safeda. 12. The statement of the eye witnesses find support from the medical testimony. The witnesses have no grudge against the accused-appellant and, therefore, there was no reason why they should have deposed against Juhuru. The eye witnesses, in our opinion, have stated correctly about the manner in which the entire incident had taken place and we do not find any reason to take a different view of their testimony from what has been taken by the trial court. 13. As regards the delay in lodging the first information report, it is true that the incident had taken place on the night of 3rd January, 1970, at 8.00 or 9.00 p.m. and that the party started from Village Padasala for Kishangarh at about 10.00 p.m. but the report was lodged on the next day at 12.00 noon. No explanation has been given by the prosecution for this delay but this delay cannot be found fatal for the prosecution because there was no occasion for the first informant, the son of the deceased, to concoct a false story as Juhuru, who was the perpetrator of the crime, was tied at the spot & he was also taken to Kishangarh along with the dead body of Rustam. Juhuru was presented at Police Station when the first information report was lodged along with the weapon of offence used by Juhuru for inflicting injuries on the vital part of the body of Rustam deceased. Juhuru also accepts this part of the prosecution case that he was taken along with the dead body of Rustam to Kishangarh and he does not suggest that his name was taken as the assailant of Rustam out of some conspiracy. In this view of the matter, we attach no importance to the delay caused in lodging the first information report. 14. The next question that remains to be decided is as to what offence has been committed by Juhuru. Learned counsel for the appellant suggests that if there was any intention on the part of the appellant to cause death of Rustam then he would have inflicted injuries on the head of the deceased with the sharp side of the weapon and as there is only one-incised wound on the head of Rustam, he submits that the case falls under section 304 and not under section 302 Indian Penal Code. According to the statement of Dr. S.K. Sen (P.W.11) injury No.2 was caused by sharp edged weapon while injuries Nos. 1 and 3 could be caused by using the reverse side of a weapon like axe (article 1). The witnesses who had seen the incident also state that the accused had used axe (Art. 1) from its reverse side to cause the injuries on the head of Rustam. The force with which the blows were inflicted on the vital part of the body of Rustam leaves no room for doubt to infer that the accused intended to cause death of Rustam. On opening the dead body the doctor found fractures of the occipital bone and that of the right and left parietal bones. The accused inflicted injuries in quick succession and he choose the head for inflicting these blows which shows his intention to do away with his victim. It does not matter if the axe was used from the reverse side which was equally heavy and which could cause irreparable damage to the vital organ of the deceased. In these circumstances, we cannot accept the argument of the learned counsel that the case falls under the mischief of section 304 and not 302 Indian Penal Code. It does not matter if the axe was used from the reverse side which was equally heavy and which could cause irreparable damage to the vital organ of the deceased. In these circumstances, we cannot accept the argument of the learned counsel that the case falls under the mischief of section 304 and not 302 Indian Penal Code. Appellant has been rightly convicted for murder under section 302 Indian Penal Code. 15. The appeals fail and, therefore, they are hereby dismissed. 16. Learned counsel for the appellant prays for leave to appeal to the Supreme Court. It is not a fit case and therefore, the prayer is reject. *******