JUDGMENT 1. - This appeal of Hoti appellant is directed against the judgement of the learned Additional Sessions Judge, Jalore dated 23.10.1970 convicting the accused appellant of an offence under section 302, Indian Penal Code, and sentencing him to imprisonment for life. 2. Deceased Kanji was related to the appellant. Kanji had no son and he was going to dispose of his property which was resented by the accused on 15.6.1970 at about 5 p.m. Hoti is alleged to have inflicted Dharia blows on Kanji in his Pole. This incident is said to have been witnessed by PW 3 Jawahra, who was going towards Rathora-ki-Seri in order to collect his dues from his customers. According to PW 3 Jawahra he asked Hoti not to kill Kanji but he was threatened by Hoti to meet the same fate which Kanji had met, if he had interfered. Being frightened by this threat, Jawahra left the place and went in search of Ramsingh relation of Kanji to inform him about this incident. Ramsingh was not found at his place and, therefore, it is said that Jawahra went to the lanes to find him out ultimately he met Ramsingh at the Chohata of the village. The incident was related to Ramsingh by Jawahra. The Patwari and the Sarpanch were also informed about it. The Patwari then asked Ram Singh to ascertain about the veracity of the information passed on to him by Jawahra. Ram Singh went to the house of Kanji and he found Kanji lying dead in his 'Ora'. Ram Singh then returned to Chohata and a first information report Ex. P/11 was then prepared and presented at the Police Station, Sayala. The Station House Officer came to the spot next morning and prepared the inquest report. He also got the dead body examined by Dr. Krishan Gopal, who conducted the postmortem of Kanji's body and found the following 12 injuries on his person:- 1. Cut wound 6" x 3" x 21/2" on middle of skull obliquely which has cut skin, muscles, bone and goes upto the membrances where it produces haemorrhage and brain matter bulges out. 2. Cut wound 3" x 1" x 1" at left side which is placed leftly 1"lateral to injury No. 1. 3. Cut wound 4" x 1" x 1/2" which is placed at right side 1" lateral to right side of injury No. 1. 4. 2. Cut wound 3" x 1" x 1" at left side which is placed leftly 1"lateral to injury No. 1. 3. Cut wound 4" x 1" x 1/2" which is placed at right side 1" lateral to right side of injury No. 1. 4. Multiple cut wounds, starting from lateral margin of occipital bone and end at middle of zygomatic process of left side 6" x 3" x 4" which has cut half of lower portion of ear (left). All the skin, muscles, vessels of neck, which is communicating at middle and anterior cranial fossa. Tempo-mendibular joint has badly dislocated and fracture of zygomatic bone and mandible at angle has taken place. 5. Cut wound 3" x 1/2" x 1/2" x 4" lateral to left ala of nose which is communicating to injury No. 4. 6. Cut wound 1" blow to injury No. 4 size 4" x 1/2" x 1" communicating to injury No. 4. 7. Cut wound 4" x 2" x 3" at left side starting from middle of mandible bone end at angle of mandibula all the bones and muscles have badly injured muscles are born and bone fractured. 8. Cut wound 3" x 1/4" x 1/4" left side 1" above the angle of mandible. 9. Cut wound 8" x 4" x 3" right hand which starts from the root of thumbs and ending to lower ⅓rd of ulner and has cut all the muscles, vessels and stuck to bone of head and palm. 10. Cut wound at dorsum of right hand 2" x 1/2" x 1/2". 11. Bruise at right shoulder linear 6" x 1/2". 12. Bruise at left shoulder 5" x 1/4". According to the opinion of the doctor the cause of death was multiple injuries on the skull of the deceased which cut the muscles of the neck and the vessels of neck resulting in the intracranial haemorrhage which caused shock. 3. The accused was arrested on 16.6.1970. At the time of his arrest he was putting on a Dhoti and a shirt which were suspected to have stains of blood on them. Both these Dhoti and shirt were sent for chemical examination. The Chemical Examiner, however, found blood on the Dhoti, but shirt was found negative for blood. The Serologist, however, could not detect the origin of the blood on the Dhoti as it has by then disintegrated. Both these Dhoti and shirt were sent for chemical examination. The Chemical Examiner, however, found blood on the Dhoti, but shirt was found negative for blood. The Serologist, however, could not detect the origin of the blood on the Dhoti as it has by then disintegrated. After his arrest accused Hoti gave information vide Ex. P/9 to the Station House Officer regarding the whereabouts of Dharia which was recovered in pursuance of the information received from Hoti. It was found to be blood stained. It was sent for examination to the Chemical Examiner and Serologist and was found to have human blood on it. After investigation Hoti was challaned in the Court of Munsiff Magistrate, Jalore, who after taking committal proceedings sent him to the court of Sessions to stand his trial under section 302, Indian Penal Code. 4. There is no eye witness in this case except PW 3 Jawahra. Jawahra has deposed that on the Nirjala Ekadashi i.e. on 15.6.1970 he was going to collect the dues from his customers towards Rathora ki-Seri. When he reached near the house of Kanji he found Hoti armed with a Dharia in the Pole of Kanji. Hoti was abusing Kanji and it was during that exchange of hot words that Hoti attacked Kanji with Dharia. Kanji raised his hand toward off the attack with the result that the Dharia caused injury on the hand of Kanji. Then Hoti again gave Dharia blow on the head of Kanji. Kanji fell down and thereafter Hoti continued inflicting Dharia blows which struck on shoulder, jaw and head of Kanji. In all 7 or 8 Dharia blows were given in the presence of the witness. When the witness asked Hoti not to kill Kanji then a threat was extended to him not to intervene, otherwise he would also be killed and it is said that having been frightened at this threat Jawahra left that place to inform Ramsingh, a relation of Kanji about this incident. It is further deposed that when Jawahra was passing on this information to Ramsingh, the Patwari and the Sarpanch came to the Chohata and they were also informed abouthis incident. Thereupon the Patwari asked Ramsingh to go to the house of Kanji and verify the correctness of the information and Ram Singh went to Kanji's house and saw Kanji lying dead in his 'Ora'. 5. Thereupon the Patwari asked Ramsingh to go to the house of Kanji and verify the correctness of the information and Ram Singh went to Kanji's house and saw Kanji lying dead in his 'Ora'. 5. The learned counsel appearing on behalf of the appellant has criticised this evidence of the only eye witness on various grounds. The first argument advanced by Mr. Bhandari is that Jawahra is a chance witness and carries ill-will against Hoti because there was a litigation going on between Hoti and Jawahra and, therefore, he has been falsely involved in this case of murder by Jawahra. He further argued that there was no occasion for Jawahra to go to the house of Kanji as DW 1 Roop Chand, to whom he was going for the recovery of his has dues, categorically deposed when produced as a defence witness that he owed nothing to Jawahra, though he has admitted that he sometimes used to take tea at Jawahra's stall but he used to make payment whenever he took tea at his stall. 6. We have very carefully examined these arguments of Mr. Bhandari and we feel that these arguments do not, in any manner, persuade us to take a view different from the one taken by the court below. The learned trial Judge who had the occasion to see the demeanour of the witness when he was examined before him has placed reliance upon him. There is no doubt that Roop Chand, DW 1 has denied any debt to Jawahra but this denial cannot make the testimony of Jawahra incredible as it was not Roop Chand alone from whom he had gone to that side for making recoveries of his outstandings. According to Jawahra he had gone to that side in order to collect his dues. In cross-examination when he was asked to name the person from whom he had to collect the dues, he has named Roop Chand. In his examination in-chief he has deposed that it was a day of Nirjala Ekadashi and therefore, he went into the village for making collection of his dues. In the process of collecting his outstandings from his customers there was nothing unnatural for him to have gone towards the side of Kanji's house. On this account, therefore, we are not prepared to throw Jawahara's testimony. 7. In the process of collecting his outstandings from his customers there was nothing unnatural for him to have gone towards the side of Kanji's house. On this account, therefore, we are not prepared to throw Jawahara's testimony. 7. It is next contended that Jawahra did not directly go to Ramsingh and he spent about one hour before he could catch Ramsingh at the Chohata of the village. This conduct of Jawahra is quite unnatural which discredits him. Accordingly to the witness when he received a threat of meeting violence at the hands of the accused he thought it proper to inform about this incident to the relative of Kanji and it was with that view that he went first to the house of Ramsingh but when it was found closed he went to see him in the lanes & then ultimately he could find him at the Chohata. It is not unnatural to think of a relation of the person who was being victimised to inform him about the incident and if Jawahra thought of passing on this information to Ramsingh PW 1 it cannot be said that he acted in an unnatural manner. 8. After receiving the information Ramsingh immediately rushed to the house of Kanji deceased and found him lying dead in his 'Ora'. It is said that the place where the dead body of Kanji was found by Ramsingh shows that the incident must have taken place in the 'Ora' and not in the pole as deposed by Jawahra. It is, therefore, argued that Jawahra's testimony does not find corroboration from the place where the dead body was found lying. It may be stated that PW 5 Gafoor Khan visited the spot of occurrence next morning & he found blood stained earth from there two places. The presence of blood in the pole supports Jawahra's testimony about giving beating to Kanji in the pole. After Jawahra left the place of occurrence it is possible that either the dead body of Kanji was removed to 'Ora' or he was taken to 'Ora' & then again beating was given to him. The presence of blood in the pole supports Jawahra's testimony about giving beating to Kanji in the pole. After Jawahra left the place of occurrence it is possible that either the dead body of Kanji was removed to 'Ora' or he was taken to 'Ora' & then again beating was given to him. We do not know exactly as to what happened after Jawahra left the spot of occurrence but this much is certain from the testimony of Jawahra that 7 or 8 Dharia blows were given to Kanji by Hoti at the pole as blood in the pole was found scattered in a considerable large area. 9. Another circumstance that supports the prosecution case is the recovery of Dharia in pursuance of the information given by Hoti which was recorded in the document Ex. P/9. The Dharia which is said to be the weapon of offence was sent to the Sarologist and it was found to have human blood on it. It is contended by learned counsel for the appellant that this circumstance cannot be taken into consideration against Hoti as the seal which was affixed on the article at the time of the recovery was the seal of Station House Officer. Sayala, whereas the Chemical Examiner has mentioned in his report Ex. P/14 that the articles had seal of the Station House Officer; Babtra Learned counsel appearing on behalf of the State has explained this discrepancy in the matter of seal and has filed an affidavit of one Mohammed Shafi U.D.C. of the office of Deputy Inspector General of Police, Jodhpur Range, wherein he has stated that he is Incharge of the General Section holding the old record of the Range of Deputy Inspector General of Police, Jodhpur and from that record it is evident that formerly the police station was stationed at Babtra but on account of certain disease having developed in the area is was shifted to village Sayala under order of the Inspector General of Police No. PHQ/Est./Alloc/16 (2) 117 dated 4.8.1965 and that this action of shifting the police station from village Babtra to village Sayala was confirmed by the Government vide Home Department letter No. F. 1/1 (13) Home (A Gr.II)/66 dated 13.4.1966. It is contended by Mr. It is contended by Mr. Singhvi appearing on behalf of the State that the seal of the Babtra police station was in use even though the head quarters of the police station was shifted from Babtra to Sayala. Shri Poonam Chand, present Station House Officer of Police Station, Sayala has also stated on oath before this Court that since 1965 there is no police station at Babtra and the jurisdiction which was exercised by the Babtra Police Station is now being exercised by the Station House Officer stationed at Sayala and that no separate seal of Police Station, Sayala was ever used & the seal of the Police Station, Babtra is being used at the Police Station, Sayala. He has given a reason for the use of the seal of Station House Officer, Sayala because the headquarters of the Police Station, Babtra was shifted to Sayala and, therefore. According, to learned counsel appearing for the state no now seal for Police Station, Sayala was ever prepared and used. 10. In this connection, it may be mentioned that at the time when the articles which were sent for chemical examination to the Chemical Examiner and the Serologist when taken in custody by the Station House Officer, Sayala documents were prepared which are Ex. P.3 and Ex. P.4. The impression of the seal which was put by the Station House Officer while taking into possession the incriminating articles is put on the document which were then prepared by the investigating officer. These documents are Ex. P.3 and Ex. P.4 and they have the impression of the seal of Station House Officer, Babtra and not of Sayala. It is true that PW 5 Gafoor Khan has deposed in his statement that he had used the seal of the Station House Officer, Sayala but from the affidavits that have been produced before us and from all the circumstances that have been brought to our notice this statement appears to have been made without taking due care to find out as to what has been mentioned in this seal which the Station House Officer, Sayala used while making the investigations. The impressions of the seal on documents Ex. P.3 and Ex. The impressions of the seal on documents Ex. P.3 and Ex. P.4 leave no room for doubt that the seal used by the investigating officer while taking possession of the incriminating articles was the seal of the Station House Officer, Babtra and not Sayala and, therefore, this difference in the seal as described by PW 5 Gafoor Khan does not create any infirmity in the prosecution case. 11. The last argument advanced by Mr. Bhandari is that the medical evidence does not wholly support the statement of the eye-witness. he pointed out that injuries No. 11 and 12 suggest that the assailant must have used blunt weapon as Kanji had sustained two bruises one on the right shoulder and the other at the left shoulder. Besides this discrepancy, he also suggested that apart from using the Dharia recovered at the instance of the accused the assailants must have used some other weapon as according to Mr. Bhandari injuries No. 1, 7 and 9 could not be caused from the Dharia because of the lapping of the wound to the tune of 3" to 4". Therefore, the testimony of PW 3 Jawahra lacks support form the medical evidence. It is also urged that Jawahra says that in his presence only 7 to 8 injuries were inflicted on the body of Kanji deceased, whereas the doctor found as many as 12 injuries on his person with multiple cut wounds on the body of Kanji. 12. The statement of Jawahra is that he had seen the incident in the 'pole' and when the assailant and Kanji were therein the 'pole' he left the place. he also stated that he had seen Hoti inflicting 7 to 8 Dharia injuries on different parts of the body of Kanji. This statement shows that he had not seen the entire incident and he left the place when the beating was being given by Hoti to Kanji. Therefore, the number of injuries sustained by Kanji does not, in any manner, go to discredit the testimony of Jawahra. 13. As regards the presence of two bruises on the shoulder of the deceased it cannot be definitely said that these bruises must have been caused by the assailant with a blunt weapon. When Ramsingh went to the house of Kanji he found the dead body lying in the 'Ora'. 13. As regards the presence of two bruises on the shoulder of the deceased it cannot be definitely said that these bruises must have been caused by the assailant with a blunt weapon. When Ramsingh went to the house of Kanji he found the dead body lying in the 'Ora'. It shows that he must have been removed from the pole to 'Ora' either by the assailant or by some one else. It is during this process of removal from 'pole' to 'Ora' such bruises could be caused and, therefore, presence of these bruises cannot be said to be fatal to the prosecution case. 14. Injury No. 1 is a cut wound 6" x 3" x 21/2", injury No. 7 is also a cut wound 4" x 2" x 3" and injury No. 9 is another cut wound 8" x 4" x 3". These three injuries show that the assailant must have used the weapon with a considerable force so as to cause a deep wound 21/2" to 3". No question has been put to the doctor to explain the gapping of these wounds, but the length and the nature of these wounds show that these wound must have been caused with the weapon like Dharia. The gapping of a wound depends on various circumstances. The gapping is greater in deep wounds when the muscle fibres have been cut transversely or obliquely. Without any explanation from medical evidence it is difficult to accept the argument advanced by the learned counsel for the appellant that these wounds have been caused with weapons other than the weapon of offence. It is not the case of the accused that some cannot construct a story for the defence of the accused that some other person was responsible for causing these injuries on the person of the deceased with another weapon. Jawahra PW 3 has stated that he had seen inflicting 7 or 8 injuries on the person of the deceased by Dharia and then he left the place of occurrence. The nature of the injuries sustained by the deceased suggests that they could be caused by Dharia. Jawahra PW 3 has stated that he had seen inflicting 7 or 8 injuries on the person of the deceased by Dharia and then he left the place of occurrence. The nature of the injuries sustained by the deceased suggests that they could be caused by Dharia. Dharia recovered at the instance of the accused was also found to be stained with human blood and, therefore, no doubt is left in our mind to believe the testimony of PW 3 Jawahra that it was accused Hoti who caused injuries on the body of the deceased which ultimately resulted in his death. 15. Learned counsel for the appellant then urged that the nature of the injuries suggests that some of the injuries must have been caused by some one else after he was removed from pole to 'Ora'. This is not the case of the defence we cannot, therefore, accept this argument that the injuries are caused by some body else specially when all the injuries except injuries No. 11 and 12 suggest that they were caused by weapon like Dharia. In these circumstances, we do not find any life in this argument. 16. The result is that the appeal fails and it is hereby dismissed. 17. Learned counsel for the appellant prays for leave to appeal to the Supreme Court. In the circumstances of this case, we cannot certify it to be a fit case for appeal to the Supreme Court. It, therefore, rejected. *******