JUDGMENT 1. - Appellant Babu was tried by the learned Sessions Judge, Sirohi for the charge of murder of Bhojia on 4-4-83 and vide judgment dated 27-2-85 he was convicted under Section 302, IPC and sentenced to imprisonment for life and a fine of Rs. 200/-, in default to undergo six months rigorous imprisonment. Feeling dissatisfied by his conviction and sentence, Babu has preferred this appeal in this Court. 2. In the judgment under appeal, the learned Sessions Judge made some observations against Dr, K.L. Bapna, who had conducted the post mortem examination of the dead body, regarding his medical knowledge and conduct. The learned Judge directed the concerned department to take necessary action on the remarks against him. Dr. K.L. Bapna has filed criminal miscellaneous petition no. 255/87 under Section 482, Cr.P.C. for expunging the remarks and quashing the proposed proceedings by non-petitioners No. 2, 3 & 4. The appellant has filed the appeal through Superintendent. Central Jail, Udaipur. As he was not represented by any counsel, Shri S.. Trivedi has been appointed Amicus Curiae to plead on his behalf. As the jail appeal filed by the appellant and the miscellaneous petition filed by Dr. K.L. Bapna arise out of the same judgment, we propose to dispose them of by one common judgment. 3. Briefly stated, the facts of the case giving rise to the appeal and the petition are that on 4-8-81 at about 4.30 p.m. Galla (PWI), when he was in his house heard cry. He came out and saw some person picking quarrel with the deceased Bhojiya in the fields. Both of them were scuffling. Just then appellant Babu caused sword blow to the deceased and ran away towards the house of Motli. Galla went near Babu. Ladoo (PW2), Hansu (PW3) and Poona (PW4) had already reached near Bhojiya. All these persons claimed to have seen Babu appellant inflicting sword blow to deceased Bnojiya. Bhojiya, who had fallen down because of the blow, was taken to his house and was made to lie on a cot. He succumbed to the injuries sustained by him. The reason for the appellant committing the crime, according to the prosecution was that Motli was suspected to be a witch (Dayan). Bhojiya, who had fallen down because of the blow, was taken to his house and was made to lie on a cot. He succumbed to the injuries sustained by him. The reason for the appellant committing the crime, according to the prosecution was that Motli was suspected to be a witch (Dayan). About 10 days prior to the incident Bhojiyas brother Babu, son of Hansu (PW3) and brother of Ladoo (PW2) had expired after a lingering disease and Bhojiya suspected Motli to be the cause of his death. As Bhojiya was much aggrieved on account of the death of Babu, Panchayat assembled and a fine of Rs. 1500/- was imposed on Motli for being the cause of death of Babu, brother of Bhojiya deceased. Appellant Babu, son in law of Motli had come to the village. Appellant Babu felt annoyed and murdered Bhojiya. Report of the incident was filed by Galla (PWI) at police station Rohida. AST, Amolak Chand of that police station, on the basis of Ex. P. I, the first information report lodged by Galla, registered a case and went to the site. He prepared the site inspection memo Ex. P. 12 and site plan Ex. P. 14. He took the blood stained soil and the control soil from the site. The inquest report Ex. P. 15 was prepared on the next day i. e. 5*8-83. Dr. K. L. Bapna, Medical Officer, Swaroop-ganj, conducted the autopsy over the dead body of Bhojiya. The doctor noted as under:- Wound: Incised wound 2.7 cm. x. 1.8 cm x. 8 cm. deep. The wound was 3 cm. below prominence of left shoaider. Coalition of pupils-dilated-equal on both sides. Thrax: Walls, ribs and cartilage-superficial mussles of shoulder and axilla were lacerated Collection of huge amount of clotted blood was present. Heart was empty. Large Vessels: Vessels of axilla (axillary artery and axillary veins were injured-these were through and through cut) having huge amount of blood clots in surrounding area. Abdomen: Stomach contained semi digested food. Bladder contained 200 c. c. urine. 4. In the opinion of the doctor Bhojiya died due to severe bleeding from the axillary vessels resulting in shock and death. The duration of death was between 3-4 to 24 hourse, prior to the postmortem examination. The injury sustained by the deceased according to the doctor was sufficient to cause death and could be caused by sword. Article Ex. 3. In the opinion of the doctor Bhojiya died due to severe bleeding from the axillary vessels resulting in shock and death. The duration of death was between 3-4 to 24 hourse, prior to the postmortem examination. The injury sustained by the deceased according to the doctor was sufficient to cause death and could be caused by sword. Article Ex. 3. The postmortem examination report is Ex. P. 18. On 7.8.83, Amolak Chand, ASI, arrested the appellant Babu vide memo Ex. P. 7. On that very day, the appellant, while in custody, furnished information Ex. P. 16 to the SHO for getting recovered his shirt and Lungi In pursuance of that information, the SHO vide Ex. P 9 recovered shirt and Lungi (Exs. 4 & 5) of the appellant. The appellant furnished information (Ex. P 17) for getting recovered sword from his house, in pursuance of that information sword (Ex. ) was recovered from his house vide Ex. P. 8. The clothes were suspected of having blood on them. All the articles recovered during the investigation were sealed and placed in the Malkhana of the police station and were afterwords sent for chemical examination. The report of the Serologists is Ex. P. 19. All the articles except the control soil were found to be stained with human blood. 5. Upon completion of necessary investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate. Abu Raad. The learned Magistrate committed the case to the Court of the Additional Sessions Judge, Sirohi. That court being upgraded subsequently, became the Court of Sessions. The learned Sessions Judge charge-sheeted the appellant. On his denying the charge, trial proceeded. In order to substantiate its case, prosecution examined ten witnesses in all The appellant in his statement under Section 313 Cr. P. C. denied the allegations. The learned Judge placed reliance on the testimony of prosecution witnesses and passed the judgment under appeal. 6. Mr. S. N. Trivedi, the learned Amicus Curiae has assailed the findings of the trial Judge on the ground that material witnesses namely Galla (PW 1) and Poona (P. W 4) having been declared hostile by the prosecution, the case rests on the testimony of relatives of the deceased i. e. Ladoo (PW 2) and Hansu (PW 3) whose statements, because of their being interested in the deceased, should not have been made the basis of conviction. Regarding the recovery of blood stained sword and blood stained clothes at the instance of the accused appellant, the argument of the learned Amicus Curiae is that the motbirs to the memos have not supported the recovery and therefore the circumstances of recovery should not have been considered against the appellant merely on the statements of the investigating officer. 7. The learned Public Prosecutor, controverting these submissions submitted that at the time when incident had taken place, only relatives and neighbours were expected to be there and therefore the truthful version of Hansu and Ladoo has been rightly given weight by the learned Judge. Regarding the recovery of the sword an J clothes of the appellant, the contention of the learned Public Prosecutor is that they were recovered at the instance of the appellant in pursuance of the information furnished by him. which bears the signatures of the motbirs and is therefore a strong circumstance against the appellant. 8. Prosecution has examined four persons as eye witnesses. Galla (PW 1) the adoptive father of the deceased Bhojiya. He has been examined as an eye witness to the occurrence, He has admitted to have lodged the information but denied to have stated that before the police that he hid himself seen the injury being inflicted and deposed that Poona, Ladoo and Hansu had reached ahead of him. The version of the witness was .hat he had seen the actual occurrence but the improvement is that other three persons reached ahead of him. Even if the version of the witness in the Court takes him out of the array of the eye witnesses, his contention that Hansu, Poona and Ladoo had reached ahead of him substantiate the prosecution case that the other witness es had seen the actual occurrence. Poona (PW 4) who according to the prosecution was an eye witness to occurrence, has also been declared hostile by the prosecution as he has shown utter ignorance of the incident and had even denied to have known the appellant. From the statements of Ladoo and Hansu, the prosecution case stands substantiated. True it is that Hansu happens to be the mother of the deceased and Poona his brother, but these two witnesses have stood the cross examination well and the learned defence counsel could not raise any suspicion to their credibility. 9. From the statements of Ladoo and Hansu, the prosecution case stands substantiated. True it is that Hansu happens to be the mother of the deceased and Poona his brother, but these two witnesses have stood the cross examination well and the learned defence counsel could not raise any suspicion to their credibility. 9. The incident is said to have taken place at about 4.30 p.m. when deceased Bhojiya was coming towards his field. Ladoo was working in the field near by and Hansu was outside the hut only at a little distance from the place of occurrence and had seen her son coming to the field. As it was raining at that lime, absence of persons near by was not unnatural. Presence of the mother and brother of the victim in their field and the house was natural and their testimony if it stands to the checks and balances available on record, could have been made the basis of conviction. Both of these witnesses, as stated earlier, have narrated the facts of the case and had gone near the injured immediately on his sustaining injuries. They had seen Babu appellant running with the sword In these circumstances, the learned Judge has rightly taken the witnesses to be of credence. 10. The learned Amicus Curiae tried to assail the veracity of the testimony of these witnesses on the ground that whereas they have dated about the blow inflicted to the chest of Bhojiya, the postmortem examination report shows the injury on the shoulder, 3 cms. above the nipple and the cutting of the axilla vessel and as such the claim of these witnesses to have seen the actual infliction of blow cannot be believed. According to the learned counsel, in this w y their statements being inconsistent with the medical evidence, should not have been believed. 11. The learned trial Judge has discussed in detail, the statements of these witnesses regarding the part of the body being affected by the sword blow and the medical evidence and has arrived at the conclusion that the witnesses were telling truth as their statements tally with the narration of the injury in the inquest report Ex. P. 3 and the cut mark in the shirt of the deceased. 12. P. 3 and the cut mark in the shirt of the deceased. 12. On careful perusal of the statement of these witnesses and that of the doctor conducting the postmortem examination, we do not find any such inconsistency which may be sufficient to discard the testimony of the alleged eye witnesses or the doctor. 13. The circumstantial evidence against the appellant is that shirt (Ex. 4), Lungi (Ex. 5) and sword (Ex. 3) were recovered in pursuance of the in-formations furnished by him. The recovery was from inside the house of the appellant. Narayan (PW 5) and Madiya (PW 8), the motbirs to the recovery memos Ex. P. 8 and P. 9 have not supported the prosecution case regarding the recovery, but both of them have admitted to have appended their thumb impressions on the papers at the instance of police. Amolak Chand, therefore remains the only witness to the recovery. However, in view of the in-formations furnished by the appellant and the recovery being from his house, the learned Judge was not in error in considering the circumstance of recovery of sword and clothes at the instance of the appellant which on chemical examinations were found to be stained with human blood, against the appellant. 14. The learned Amicus Curiae stressed that even if recovery is believed, the group of blood not being known, the human blood on sword, shirt and lungi do not connect the appellant with the commission of the crime. The report Ex. P. 19 speaks that blood groups were not known because the stains were disintegrated. It is in rare cases that blood group is detected and merely because the group of blood is not detected, the circumstance of recovery of articles at the instance of accused in pursuance of his information stained with human blood cannot be discarded. 15. In view of the above discussion, we do not feel inclined to interfere with in the conclusion arrived at by the learned Sessions Judge regarding the guilt of the appellant. Consequently, the appeal filed by appellant Babu having no merits is dismissed. 16. We now turn to the petition filed by Dr. Bapna. The learned trial Judge has made observation and passed strictures against Dr. K. L. Bapna (PW 10) who has conducted the autopsy over the dead body of deceased Bhojiya because of his opinion being inconsistent with the statements of the eye witnesses. 16. We now turn to the petition filed by Dr. Bapna. The learned trial Judge has made observation and passed strictures against Dr. K. L. Bapna (PW 10) who has conducted the autopsy over the dead body of deceased Bhojiya because of his opinion being inconsistent with the statements of the eye witnesses. The learned Judge has given weight to the version of the eye witnesses in comparison to the opinion oi the doctor in view of the entry in the inquest report Ex. P. 3 and the location of the cut on the shirt (Article I). The learned Judge has also taken into consideration the omission of the time of completion of the postmortem examination in the postmortem report Ex. P. 18. 17. The eye witnesses have stated about the blow being inflicted on the chest. In the inquest report also the injuries are shown to be at the left side of the chest. According to the petitioner Dr. K. L. Bapna, as mentioned in the postmortem examination report. as stated earlier, the wound was below the bony prominence of left shoulder. The depth of the wound in the centre was 8 cm. He has also stated that blood vessel of axilla was cut in toto. In the digram drawn. the location of the injury is the same as mentioned in the postmortem examination report. The learned trial Judge was of the opinion that the doctor has on account of lack of knowledge and carelessness, prepared a wrong report. The learned Judge felt strengthened in his view by the location of the cut on the shirt, the deceased was waring at the time of the incident This led to the observation of the learned Judge that doctor Bapna has not shown any respect to the oath administered to him in the Court. The learned Judge has also taken the statement of the witness that axilla is a part of chest, as lack of medical, knowledge. 18. On careful examination of the statements of the witnesses and the doctor, we do not find any ulterior motive or care lessness or lack of knowledge on the part of the doctor Banpa in conducting the postmortem examination. The doctor has given the detailed measurements of the injury noted by him on the dead body. 18. On careful examination of the statements of the witnesses and the doctor, we do not find any ulterior motive or care lessness or lack of knowledge on the part of the doctor Banpa in conducting the postmortem examination. The doctor has given the detailed measurements of the injury noted by him on the dead body. The witnesses being at some distance were not in a position to see the blow being inflicted exactly on the chest. Shoulder axilla and chest are close to each other and blow hit on axilla may in some cases appear from a distance to be a blow on the chest. Merely because the doctor has stated that axilla was part of chest, it cannot be said that he was a liar. In the postmortem examination, the injury is shown to be above the chest but no measurement has been given so as to point out whether it was near the chest at the axilla. According to the doctor, the injury was 3 cm. above the nipple. Regarding the cut on the shirt (Ex. 4) the explanation of the doctor that if the shirt is loose, a blow affecting the shoulder and axilla may cut the shirt on the nearby part, is plausible. Merely because the doctor has not written the time of the completion of the postmortem examination. the whole report cannot be said to be carelessly written. However, the opinion of the learnad Judge regarding the lack of knowledge and carelessness of the doctor, would depended upon the scrutiny of the statement of the doctor. If it shows that the doctor has given a particular statement in order to help any party, then carelessness or intentionally telling a lie, without caring for the sanctity of the oath, may be inferred. If, on the other hand, the statement taken as whole, does not point out any ulterior motive of the doctor and the explanation given by him for what he has stated appears to be plausible, his statement cannot be taken to be false and the observations and the strictures against him would not be justiciable. 19. Dr. Bapnas statement shows that he has not given false statement in order to oblige the accused. 19. Dr. Bapnas statement shows that he has not given false statement in order to oblige the accused. The doctor was quite clear regarding the seriousness of the injury and has categorically stated that the injury sustained by Bhojiya was sufficient to cause death and there were no chances of his survival. He has also stated about the seriousness of the injury by stating that there was complete cut of the blood vessel. In cross examination the Doctor has stated that the wound had travelled up to axilla When the witnesses has given a straight forward statement that the injuries sustained by the deceased were sufficient to cause death and there were no chances of survival, we do not find any material to suggest that the doctor was either careless or had lack of knowledge of his subject. His statement does not lead to any inference that he was trying to conceal something and had given files statement. We, therefore, do not agree with the learned trial Judge that the witness had no sanctity for the oath administered to him. In such circumstances we find no justification in the strictures passed and observations made against the doctor which may tell high on his career. We, therefore, allow the petition filed by Dr. K. L. Bapna and expunge the remarks and strictures passed against him in Para No. 4 to 7 of the judgment of the trial court and also set aside the directions to the concerned department in that regard. If any action in pursuance of the judgment of the trial court has been taken by the concerned department, the proceedings shall stand quashed.Petition of doctor allowed. *******