JUDGMENT 1. - Appellant-Bahadur faced trial before the learned Special Judge, Dacoity Affected Area, Dholpur, who by his judgment dated 31.3.94 convicted him for the offence under section 302 & 394 IPC and sentenced him to imprisonment for life with fine of Rs.200/-, in default of payment of fine to further undergo imprisonment for two months on the first count and to R.l. for three years and fine of Rs.100/-, in default to further undergo simple imprisonment for one month on the second count. The learned trial judge further directed that both the sentence shall run concurrently. 2. In succinct, the case put up by the prosecution is that on 12.8.92 at about 12.00 noon PW-2 Basudev Kachhi was going from Sarmathura to his Adda' (a temporary abode constructed by erecting stone slabs in the agricultural field) situated near Katoth well. When he reached near the 'Patore', of his aunt Smt. Gora, he heard the sound of her bemoaning. He went inside her Patore' and saw that one person was belabouring Smt. Goran having a Gandasa'. He raised an alarm, thereupon, the assailant fled away towards village Gomai. Basudev chased the assailant and his hue and cry also attracted his cousin Smt. Golo (PW- 6), niece-Ramrati (PW-7) and many villagers, who were working in their fields. They also ran after the assailant and apprehended him. The assailant disclosed his identity and he was the appellant. The appellant sustained injuries on his head, back and other parts of his body, which were caused by the villagers. It is alleged that a silver chain, a golden tarki and a ten rupees note were also recovered from the pocket of appellant's pant. All those articles belonged to Smt. Gora. PW 2 Basudev and others brought the appellant to the 'Patore' of Smt. Gora and tied him there. Due to injuries sustained by Smt. Gora, her condition was serious. Therefore, her son Har Charan (PW 3) and others took her to Government Hospital, Sarmathura from where she was referred to Dholpur for treatment. However, she succumbed to her injuries on the way. Her dead body was, therefore, brought back to police station Sarmathura. Due to injuries sustained by Smt. Gora, her condition was serious. Therefore, her son Har Charan (PW 3) and others took her to Government Hospital, Sarmathura from where she was referred to Dholpur for treatment. However, she succumbed to her injuries on the way. Her dead body was, therefore, brought back to police station Sarmathura. PW 2 Basudev submitted a written report Ex.P 3 on the same day at 2 P.M. to Khushi Ram, ASI, the then Incharge of Police Station who in turn drew the FIR Ex.R 4 and registered a case for the offence under section 394 IPC. Appellant Bahadur was also produced by Basudev and others at the police station, but since he had sustained extensive injuries, he was sent to the Government Hospital, Dholpur for treatment. 3. Meanwhile Dinesh Vashisht (PW 11) SHO, reached the police station and commenced investigation of this case. He immediately rushed to the place of incident, inspected the site and prepared site-plan (Ex.R 7). He seized and sealed the blood stained 'Gandasa' (Article-1), which was lying inside the 'Patore' of deceased Smt. Gora vide seizure memo Ex.P 8 and lifted the blood stained soil and the control sample of the earth from the Patore' vide seizure memoes Ex.P. 9 & 10 respectively. He conducted the autopsy and prepared inquest report Ex.P5. 4. Dr. Mahesh Kumar Goyal, Medical Officer, Incharge, Primary Health Centre, Sarmathura, conducted the Medico Legal Autopsy of the dead body of Smt. Gora on the same day and as per post mortem report (Ex.P 1) found following external injuries on her body : (i) Incised wound 8 cm x 1 cm x bone deep on the right upper parietal region of scalp. The skull bone was visible. There was clotted blood around the wound. Margins of wound were clear, sharp and regular and the parietal bone was cut and fractured. (ii) Incised wound 4 cm x 1/2cm x bone deep on lower part of right parietal region. The skull bone was visible. Margins of the wound were clear, sharp and regular with clotted blood. (iii) Incised wound 5 cm x 1/2cm x bone deep on anterior superior part of right parietal region of her skull. The skull bone was visible. Margins of the wound were clear, sharp and regular with clotted blood. The skull bone was visible. Margins of the wound were clear, sharp and regular with clotted blood. (iii) Incised wound 5 cm x 1/2cm x bone deep on anterior superior part of right parietal region of her skull. The skull bone was visible. Margins of the wound were clear, sharp and regular with clotted blood. (iv) Incised wound 6 cm x 1 cm x muscle deep on the back of right ear in mastoid region. The margins of wound were clear, sharp and regular. (v) Lacerated wound 3 cm x 1 cm x through and through on helix region of right ear. The skin and cartilage of the right ear were cut through and through. (vi) Bruise with swelling 7 cm x 5 cm on right side of face below tragus of right year. 5. On dissection the said doctor found a fracture on right parietal bone of skull. The doctor opined that the cause of death of Smt. Gora was due to haemorrhage and shock. Dr. Mahesh Kumar Goyal also seized and sealed the blood smeared blouse of the deceased and sent the same to the SHO vide his forwarding letter Ex.R 2. 6. It is the case of the prosecution that on 12.8.92 PW-2 Basudev also produced a silver chain, gold tarki and a currency note of rupees ten to the police, which were seized vide seizure memo Ex.P 6. The sealed packet of blood smeared soil, gandasa and blood smeared blouse of the deceased were sent to the State Forensic Science Laboratory, Jaipur. The Assistant Director, Serology, SFSL, vide his report Ex.P 17 intimated that the blood smeared soil, gandasa and blouse were stained with human blood having O' Group blood. 7. On 16.8.92 appellant Bahadur, who was undergoing treatment in Dholpur Government Hospital was formally arrested vide arrest memo Ex.P 16. 8. After investigation, the police filed challan against the appellant for the offences under section 302 & 394 before the learned Munsif and Judicial Magistrate, Bari, who in turn committed the case to the learned Special Judge. 9. Charge for the offences under section 394 and 302 IPC was framed against the appellant, who denied the indictment. To bring home the guilt against the appellant, the prosecution examined as many as eleven witnesses. Appellant in his statement under section 313 Cr.PC. 9. Charge for the offences under section 394 and 302 IPC was framed against the appellant, who denied the indictment. To bring home the guilt against the appellant, the prosecution examined as many as eleven witnesses. Appellant in his statement under section 313 Cr.PC. denied the circumstances appearing against him in the prosecution evidence and asserted that he used to bring pure ghee from his village Dhameli Ka Pura, Police Station Shamshahbad, District Agra and used to sell the same in Sarmathura, that he lived with Smt. Gora for a pretty long period, that Basudev and others suspected that he had illicit relations with the deceased and that her relatives after committing her murder had belaboured him and falsely implicated him in this case. In defence he examined DW-1 Shiv Charan. After trial, the learned Special Judge by his impugned judgment found the appellant guilty and sentenced him in the manner indicated above. Hence this appeal. 10. We have heard Shri Biri Singh, the learned counsel for the appellant and Shri M.L. Goyal, the learned Public Prosecutor at length and carefully perused the record of the trial court in extenso. 11. Shri Biri Singh strenuously canvassed that the learned trial judge has erred in not taking into consideration the fact that Smt. Gora (deceased) received six injuries, that as per post-mortem report Ex. P. 1 injury No. 1 to 4 were caused by sharp weapon while injury No. 5 & 6 were caused by blunt object, which reflect that number of assailants, who caused injuries to the deceased were more than one. It is alleged that the appellant inflicted injuries to her by a Gandasa', but the prosecution is conspicuously silent as to how the deceased received injury Nos. 5 & 6 by a blunt weapon. There was no eye witness of the incident and the testimony of alleged eye witness PW-2 Basudev is, therefore, patently false. 12. The next thrust of his argument is that Gandasa (Article 1) was not recovered in pursuance to any information furnished by the appellant. On the other hand, it was seized by the Investigation Officer from the place of incident. The Investigation Officer did not care to lift the finger prints from the handle of the said Gandasa and sent those to the Finger Prints Expert for examination and comparison with the finger prints of the appellant. On the other hand, it was seized by the Investigation Officer from the place of incident. The Investigation Officer did not care to lift the finger prints from the handle of the said Gandasa and sent those to the Finger Prints Expert for examination and comparison with the finger prints of the appellant. Thus, the alleged seizure of Gandasa (Article No. 1) does not connect the appellant with the crime. Shri Biri Singh's another argument is that the alleged recovery of silver chain, golden tarki and a currency note of rupees ten from the possession of the appellant has also not been proved at all, that as per the testimony of Basudev one Bijjo, Sarpanch is alleged to have recovered those articles from the possession of the appellant, but the prosecution has not examined the said witness. Moreover, no test identification parade in respect of those articles was arranged. Those articles were also not produced before the court during trial. Therefore, the alleged recovery of those articles is meaningless and the same does not implicate the appellant with the crime. Shri Biri Singh also contended that as per statement of PW-4 Smt. Maya, she was the first to have reached the place of incident and that PW-2 Basudev and PW-3 Har Charan had come lateron. Thus, Basudev (PW-2) was not an eye witness of the alleged incident. The learned trial judge has thus not correctly assessed and evaluated the prosecution evidence in true perspective. Shri Biri Singh also asserted that the investigation in this case has been conducted in a casual and slip shod manner inasmuch as the Investigation Officer did not mark the place in the site plan (Ex.P. 7) from where Basudev (PW-2) is alleged to have heard the bemoaning of the deceased, as also the place where the appellant was apprehended. According to him, as per the testimony of prosecution witnesses, the appellant was apprehended at a distance of about 1 Km. from the place of incident, which indicates that appellant was not the assailant and he has been falsely implicated. Lastly, Shri Biri Singh submitted that from the evidence on record, the defence version stands probablised. 13. According to him, as per the testimony of prosecution witnesses, the appellant was apprehended at a distance of about 1 Km. from the place of incident, which indicates that appellant was not the assailant and he has been falsely implicated. Lastly, Shri Biri Singh submitted that from the evidence on record, the defence version stands probablised. 13. On the other hand, Shri M.L. Goyal, the learned Public Prosecutor has vehemently contended that on hearing the groaning sound of Smt. Gora, when PW-2 Basudev entered into her Patore', he had seen the appellant holding a blood stained Gandasa in his hand and Smt. Gora was lying injured and blood was oozing out from her head The appellant immediately fled away from the Patore', who was hotly pursued by Basudev. Basudev also raised hue and cry, which attracted many persons, who were working in their nearby fields and that the appellant was apprehended by them. From the possession of the appellant a silver chain, gold tarki and a currency note of rupees ten belonging to the deceased Smt. Gora were also recovered, which were produced before the police while Basudev submitted the written report (Ex.R 3). Shri Goyal has pointed out that the prosecution witnesses have clearly deposed that the said articles belonged to the deceased, while the appellant has not claimed those articles and failed to give any explanation as to how he was found in possession of those articles immediately after the incident. This fact unmistakably proved that the appellant had committed the murder of Smt. Gora and also looted those articles from her. Shri Goyal submitted that when the appellant was apprehended, during the scuffle he also received injuries. He was brought back to the Patore' of deceased where he was tied by the villagers. Smt. Gora in her oral dying declaration had clearly stated that the appellant had caused injuries to her by Gandasa' and deprived her of those articles. Shri Goyal further contended that since the condition of Smt. Gora was serious, she was taken to Primary Health Centre, Sarmathura, from where she was referred to Dholpour Hospital, but while she was being transported in a truck to Dholpur, she succumbed to her injuries. Shri Goyal further contended that since the condition of Smt. Gora was serious, she was taken to Primary Health Centre, Sarmathura, from where she was referred to Dholpour Hospital, but while she was being transported in a truck to Dholpur, she succumbed to her injuries. There was no delay in lodging the FIR, that the appellant was also produced by the villagers before the l/c of Police Station but since the appellant had also received injuries, he was sent to Dholpur hospital for treatment. All the prosecution witnesses had identified Gandasa (Article-1). Simply because the finger prints were not lifted from the handle of the Gandasa, it cannot be held that the appellant was not the author of the injuries caused to the deceased. Shri Goyal has submitted that, in fact, injury No. 5 was also caused by a sharp edged weapon because as per testimony of the doctor, the skin and cartilage of the right ear of Smt. Gora was cut through and through. Injury No. 6 incorporated in post mortem report was a bruise with swelling, which could have been caused by a fall. Thus there is no evidence to suggest that the injuries sustained by deceased Gora were caused by two persons. Shri Goyal has asserted that from a careful perusal of the statement of the prosecution witnesses, it stand fairly established that PW-4 Smt. Maya had reached in the Patore' of the deceased, after PW-2 Basudev and other villagers hotly chasing the appellant had apprehended him. Shri Goyal has asserted that the defence plea taken by the appellant is patently false and fabricated, which does not stand probablised from the evidence on record. Shri Goyal has thus supported the judgment and reiterated the reasonings given by the learned trial Judge. 14. We have given our most anxious and thoughtful consideration to the rival submissions. We shall first briefly scrutinise and assess the evidence recorded in this case. 15. PW 2 Basudev, aged 38 years is the sister's son of the deceased. He deposed that on the ill fated day, at about 12.00 noon, he after unloading a truck containing stone slabs near the railway station Sarmathura, was going to his Adda' for taking his lunch. When he reached near the Patore' of Gora, he heard her bemoaning. He thought that she might be suffering from fever. He deposed that on the ill fated day, at about 12.00 noon, he after unloading a truck containing stone slabs near the railway station Sarmathura, was going to his Adda' for taking his lunch. When he reached near the Patore' of Gora, he heard her bemoaning. He thought that she might be suffering from fever. He, therefore, went inside her Patore', where he saw the appellant holding a blood stained Gandasa' in his hand and that blood was oozing out from the head of Smt. Gora, who was lying injured. Seeing him the appellant ran away towards village Domai. Basudev further deposed that he chased the appellant and also raised alarm, which attracted many persons, who were working in their respective agricultural fields nearby, and that his cousin Smt. Golo and niece Km. Ramrati also came out from their house. He stated that he alongwith other villagers hotly persuade the appellant and caught hold of him at a distance of about 1 Km. away from the place of incident, and that in the scuffle the appellant also sustained injuries. Basudev stated that besides him about 15/20 villagers including Manga, Kalu, Ram Khilari, Hari Charan etc. had caught hold of the appellant, that thereafter they brought him back to the Patore' of Smt. Goran and tied him there by a rope. He told that appellant Bahadur had become unconscious, that Bijjo, Sarpanch took a search of the appellant from whose possession a silver chain, one gold tarki and a currency note of rupees ten, which belonged to the deceased, were recovered. He further told that since the condition of Smt. Gora was serious, she was taken to Sarmathura hospital from where she was referred to Dholpur Hospital and that Hari Charan and others took her in a truck and proceeded towards Dholpur. Basudev deposed that he alongwith Bijjo Sarpanch and others took the appellant to police station Sarmathura and submitted written report Ex.P 3 and also handed over the silver chain, gold tarki and Rs.10/- to the police. He proved his signatures on FIR Ex.P 4. He also deposed that the Incharge Police Station seized those articles vide seizure memo Ex.P 6. Basudev deposed that he alongwith Bijjo Sarpanch and others took the appellant to police station Sarmathura and submitted written report Ex.P 3 and also handed over the silver chain, gold tarki and Rs.10/- to the police. He proved his signatures on FIR Ex.P 4. He also deposed that the Incharge Police Station seized those articles vide seizure memo Ex.P 6. He has also proved the site plan Ex.P 7 and the seizure memo Ex.P. 8 of the blood stained Gandasa', and seizure memo Ex.P 9 and 10 of blood smeared soil and control sample respectively, which were lifted by the Investigation Officer from the Patore' of the deceased. 16. In his cross examination PW 2 Basudev stated that his agricultural field and the Patore' were situated just adjacent to the agricultural field and patore of the deceased. It may be mentioned here that Basudev is son of Bhag Chand and as per site plan Ex.P 7, which has been well proved by PW 11 Dinesh Vashisht SHO and motbirs PW 3 Hari Charan and PW 5 Ram Khilari, it stand firmly established that the Patore of Bhag Chand situated at a distance of about 25 feet from the patore of the deceased, where the incident had taken place. As per site plan Ex.P 7, the fields of Bhagchand, the father of PW 2 Basudev are situated on the other side of the road leading to village Domai. This road is situated just apparent to the Adda' of the deceased Smt. Gora W/o Moola. In written report Ex.P 3 at portion C to D Basudev has mentioned that his Adda', meaning thereby the temporary abode in the agricultural field, is situated near Kathoth Ka Kua' (name of a well) and that at that place he had heard the bemoaning of Smt. Gora. During trial, this witness has stated that when he was passing through the patore of Smt. Gora, he had heard a sound of her bemoaning. Thus in our considered view, Basudev has not made any substantial or material improvement in his statement during trial and there is no variance in the facts mentioned in portion C to D of his written report Ex.P. 3 and his statement recorded during trial, Basudev has identified Gandasa Article No. 1, in the court and stated that the appellant had run away leaving the said Gandasa in the patore. He admitted that his permanent house is situated in Sarmathura, and that his Adda' is situated in his agricultural field, at a distance of about 1.5 Km. He stated that deceased Smt. Gora, her daughter and son in law were also residing separately near his Adda'. He deposed that on the day of incident, his wife had brought his meals at his Adda', and as such, after unloading the truck he was going there to take his lunch. Thus the presence of Basudev at the time and place of occurrence was quite natural. In his cross examination, he reiterated that he was the first to arrive at the place of incident, where he had seen the appellant standing there having blood stained Gandasa' Art. 1 in his hand that Smt. Gora was lying and that she was profusely bleeding from her head and that thereafter the appellant leaving that Gandasa' there fled away. He chased the appellant. He told that the age of Smt. Gora was about 55 years. 17. PW-1 Dr. Mahesh Kumar Goel in his post mortem report (Ex.P 1) has also estimated the age of Smt. Gora as 55 years. As per arrest memo Ex.P. 16, the age of appellant Bahadur was about 25 years. Appellant in his statement dated 27.1.93 recorded under section 313 Cr.P.C. has stated that his age was 20 years. The alleged incident took place on 12.8.92. Thus, it is abundantly apparent that on the day of incident the age of the appellant was about 19-20 years only and it does not stand to reason that the deceased had illicit relations with the appellant. 18. PW 2 Basudev has categorically refuted the suggestion that appellant used to reside with Smt. Gora for last 2/3 years. He stated that he did not know the appellant prior to the incident. He also emphatically denied the suggestion that the appellant had illicit relations with the deceased, that he, Hari Charan and others did not like the relation and, therefore, they committed the murder of Smt. Gora by a Gandasa and thereafter caused injuries to the appellant and foisted a false case against him. He specifically stated that he neither knew the appellant prior to the incident nor bore enmity against him nor the police had ever told him that the appellant was a Goonda and committed dacoities. He specifically stated that he neither knew the appellant prior to the incident nor bore enmity against him nor the police had ever told him that the appellant was a Goonda and committed dacoities. Basudev has been cross examined at length but in our considered opinion his testimony has remained in tact and unshaken and the learned trial Judge has rightly held him as a reliable witness. 19. PW 3 Har Charan, aged 29 years is the son of the deceased. He deals in trading of stones. He stated that his father Moolaram used to work in a stone factory away from Sarmathura and that as and when he used to go to Sarmathura, he used to reside with the deceased in the Adda' situated in his agricultural field, that on the ill fated day at about 12.00 noon Pappu informed him at Bus- stand, Sarmathura, that a boy had caused injuries to Smt. Gora, ("teri maa ko ek ladke ne kat diya"). Thereupon he reached to his Adda' where he found his mother Smt. Gora lying injured. She had injuries on her head and Kaanpatti (mastoid region). He also found that the appellant was kept there tied by ropes and that many villagers were present there. He deposed that Smt. Gora told him that the boy who has been kept tied had inflicted cut injuries to her and that he had also forcibly taken away her gold tarki, silver chain and ten rupees. She further informed that when she cried, Basudev had come there and he had also seen the said boy (appellant), who had thereafter run away towards village Domai. Har Charan stated that the appellant was the same boy, who was kept there tied by the villagers by ropes. He deposed that since the condition of his mother was serious, he did not make any quarry from the appellant and he along with 3/4 persons took her to Sarmathura Hospital, where first aid was given to her and thereafter she was referred to Dholpur Hospital. He stated that on the way he also took his father Moola from the factory and that while Smt. Gora being transported to Dholpur in a truck she breathed her last near Gulab Bagh and that thereupon he brought back her dead body and reached the police station, Sarmathura on the same day. He stated that on the way he also took his father Moola from the factory and that while Smt. Gora being transported to Dholpur in a truck she breathed her last near Gulab Bagh and that thereupon he brought back her dead body and reached the police station, Sarmathura on the same day. He stated that by the time they reached the police station. PW 2 Basudev had already lodged a written report about the incident. Hari Charan has proved the inquest report Ex.P 3 and site plan Ex.P 7. He deposed that the police in his presence seized the blood stained Gandasa (Article No. 1) vide seizure memo (Ex.R 8) as also sample of blood smeared soil and control blood smeared soil and control sample of earth vide seizure memo Ex.P 9 & P 10 respectively from the place of incident and sealed in separate packets. He stated that he could identify the silver chain, gold tarki and the garments of his mother, but those articles were not shown to him during trial. In his cross examination he stated that on the day of incident Bajra crop was standing in his field, that his mother Smt. Gora used to reside in the patore erected near their field. He stated that the alleged incident took place during rainy season in the month of Saawan and that villagers used to work in their respective fields. He stated that Kathoth well' is situated at a distance of one field from their Adda'. This witness was confronted with the portion A to B of his police statement dated 13.8.92 (Ex.D. 2) to the effect. " bl yM+ds us ftls ckgj idM+ j[kk gS] us esjs dkuksa dh nksuksa rjdh lksus dh vkSj xys dh pkWanh dh yj vkSj 10 :i;s tcjnLrh mrkj fy, " He admitted that Smt. Gora had informed him likewise and he had given such a statement to the Investigation Officer. We do not find any incongruity or inconsistency in the statement of Har Charan recorded by the trial court and portion A to B of his police statement Ex D. 2. In his police statement (Ex.D. 2) also this witness has specifically stated that his mother had informed him that the said boy (appellant) had forcibly taken away her gold tarki, silver chain and rupees ten. In his police statement (Ex.D. 2) also this witness has specifically stated that his mother had informed him that the said boy (appellant) had forcibly taken away her gold tarki, silver chain and rupees ten. It may be pointed out here that no specific question has been put to this witness about the alleged oral dying declaration made by Smt. Gora to him. The factum of the oral dying declaration made by Smt. Gora also finds mention in his police statement (Ex.D. 2). He has identified Gandasa (Article No. 1) during trial. Har Charan also stoutly refuted the suggestion that appellant Bahadur used to reside in the Adda' of his mother and that they suspected that he had illicit relations with her and for that reason he alongwith Basudev belaboured Smt. Gora and after tying the appellant there had also inflicted injuries to him. He specifically stated that when he reached the place of incident, his mother was lying injured but she was not unconscious. This witness has also been grilled extensively but he has valiantly withstood the test of searching cross examination and his testimony has remained unshattered. In our considered opinion, the learned trial judge has not committed any error in treating him as a reliable witness. 20. PW 4 Maya, aged 18-20 years is the daughter of Har Charan and grand daughter of Smt. Gora. She deposed that, on the day of incident, she was working in her agriculture field, which is about 3-4 fields away from the patore of the deceased, that she heard the hue and cry. thereupon she came running inside the patore of Smt. Gora, who was lying injured there near the Cheelka' and was crying. She further deposed that Smt. Gora told her that the culprit, who run away just now, had caused injuries to her by Gandasa' and had forcibly snatched away her silver chain, gold tarki and Rs. 10/-. Smt. Maya also deposed that at that time her uncle Basudev (PW 2) had caught hold of the appellant and that her aunt Smt. Golo and her daughter Ramrati were also present there. She stated that the said culprit was appellant Bahadur and that Smt. Gora was rushed to Sarmathura Hospital from where when she was being taken to Dholpur, that latter had expired in the way. Smt. Maya also identified the appellant in the court. She stated that the said culprit was appellant Bahadur and that Smt. Gora was rushed to Sarmathura Hospital from where when she was being taken to Dholpur, that latter had expired in the way. Smt. Maya also identified the appellant in the court. In her cross examination, she stated that her father and mother used to reside in their house situated in Sarmathura and that their Adda' is situated in their field. She told that at the time of the incident, she was busy in weeding out unwanted plants from the bazra crops in her field. She asserted that when she came to the place of incident Smt. Gora had not become unconscious and that at that time the appellant had already been apprehended by the villagers and that she had not chased the appellant. She deposed that her uncle Basudev and others had caught hold of the appellant, who was tied with a rope. She admitted that the appellant had also sustained injuries but he had not become unconscious. In cross examination, she also told that she was the first to reach near Smt. Gora, who was lying injured. However, in her examination in chief she had specifically stated that when she reached the patore of Smt. Gora. She found her lying injured and that Basudev and others had caught hold of the appellant, who was tied by rope. Therefore the statement of Smt. Maya to the effect that she was the first to reach the patore of the deceased can not be read in isolation. From her testimony, it clearly emerges that she had reached the place of incident after the appellant had already been apprehended by Basudev and others and tied him in the Adda outside the patore of the deceased. Therefore, we are not at all impressed by the argument advanced by Shri Biri Singh that PW 4 Smt. Maya was the first to reach the patore of the deceased and that PW 2 Basudev and Har Charan had come there lateron, and that Basudev was not an eye witness. 21. It is worth while to note that no substantial or material question has been put to Km. Maya in her cross examination in respect of the alleged oral dying declaration made by Smt. Gora. Therefore, the factum of oral dying declaration made by Smt. Gora remains unchallenged. 22. 21. It is worth while to note that no substantial or material question has been put to Km. Maya in her cross examination in respect of the alleged oral dying declaration made by Smt. Gora. Therefore, the factum of oral dying declaration made by Smt. Gora remains unchallenged. 22. In our considered opinion, it can not be held by any stretch of imagination that PW 2 Basudev and PW 3 Har Charan had come much after Smt. Maya had reached the place of incident. It is true that PW 2 Basudev, PW 3 Har Charan and PW 4 Smt. Maya are close relatives of the deceased but their presence at the place of incident was quite natural. We have very closely scrutinised these statements but we do not find any material contradiction or inconsistency to discredit their testimony. The learned trial judge has, therefore, not committed any error in placing reliance on their statements. 23. PW 1 Dr. Mahesh Kumar Goyal stated that he had conducted the Medico Legal Autopsy of dead body of Smt. Gora. He has proved post mortem report (Ex.P 1) and given details of the injuries sustained by her. He stated that the injuries No. 1 to 4 were caused by sharp edged weapon, that injury No. 6 was also caused by a sharp edged weapon causing fracture of right parietal bone of the deceased. He stated that injury No. 5 was a lacerated wound 3 cmxl cmxthrough and through on the Helix region of the right ear. He specifically stated that skin and cartilege of the right ear were cut through and through. Thus, it is crystal clear that injury No. 5 was also caused by a sharp edged weapon. Injury No. 6 was a bruise with swelling. PW 1 Dr. Goyal also stated in unambiguous and unequivocal terms that injury No. 6 could have been caused by a fall. He has further stated that the cause of death was due to shock and haemorrhage. Thus from the testimony of doctor Goyal, it is not at all borne out that the injuries sustained by the deceased were caused by more than one assailants. No question has been put to the doctor as to whether after examining the aforementioned injuries Smt. Gora could have become unconscious instantaneously or that she was not in a position to speak. No question has been put to the doctor as to whether after examining the aforementioned injuries Smt. Gora could have become unconscious instantaneously or that she was not in a position to speak. In such circumstances, the testimony of PW 3 Har Charan & PW 4 Smt. Maya regarding the oral dying declaration made to them by Smt. Gora can not be held to be improbable or fabricated. 24. The statements of PW 2, 3 & 4 as regards the injuries sustained by the deceased find due corroboration from the medical evidence. 25. PW 5 Ram Khilari has proved the inquest report and the seizure memo Ex.P 6 of gold tarki, silver chain and currency note of Rs.10/-. He stated that those articles were recovered from the possession of appellant, which were produced before the police by Basudev and others in his presence. He stated that Bahadur was also produced by Basudev and others in the police station and that Bahadur had sustained extensive injuries and was lying in the police jeep. He admitted that when the police had come to the place of incident, he was not there and that he had reached later. He also identified Gandasa (Article No. 1) and stated that the said Gandasa was blood stained and lying in the patore and that the same was seized by the police. We do not find any valid and sufficient reason to disbelieve his testimony. 26. PW-6 Smt. Golo stated that she was busy in weeding operation in her agricultural field, that after hearing the hue and cry, she came to the patore of Smt. Gora, that she asked the latter as to who had inflicted injuries to her but she did not speak. She also stated that when she reached the patore of the deceased many persons had already assembled there and that she did not know as to who had caused those injuries to the deceased. This witness was declared hostile. In her cross examination, she stated that the deceased was her mother, that she used to live in a separate house situated at a distance of two fields from the patore of the deceased, that she used to meet her mother after 3/4 days and she did not know whether her mother used to put on silver chain or not? it appears that this witness had reached the place of occurrence much after. it appears that this witness had reached the place of occurrence much after. She has not supported the prosecution case and has been declared hostile. However, even from her statement it stands well proved that Smt. Gora had received injuries. 27. PW-7 Ramrati aged 19 years in the daughter of Smt. Golo. She stated that after hearing the cry, when she reached the place of incident, her maternal grand mother Smt. Gora had already died, that she did not know as to who had committed her murder. But in the next breath, she deposed that she had accompanied Smt. Gora while she was being taken to Dholpur and that the later had breathed her last near Kesarbagh. She also pleaded her ignorance as to whether appellant was present in the crowd, which had assembled near the patore of the deceased or not. This witness was also declared hostile. In cross examination, she stated that since she had lost sense and, as such, she did not know any thing about the incident. She admitted that when she reached the place of incident Smt. Gora was lying unconscious, however, she was breathing. Thus, the statement of this witness is self contradictory. She has also been declared hostile. It is worthwhile to note that no suggestion has been put to PW-6 Smt. Golo and PW-7 Ramrati regarding the defence version. PW 6 & PW 7, therefore, do not render any assistance to the prosecution. 28. PW-8 Siya Ram, Head Constable, stated that on 6.9.92 he had brought a sealed packet containing the garments of Smt. Gora from the hospital, which was seized by the Investigation Officer vide seizure memo Ex.R 4 and that he had deposited the same in the Malkhana of the police station. 29. PW-9 Shivlal, LC, stated that on 19.9.92 he carried four sealed packets from police station Sarmathura and deposited those packets in the FSL, Jaipur and that their seals remained intact. He has also proved the receipt of the State FSL (Ex.R 15). 30. PW-10 Pohap Singh has proved the arrest memo (Ex.R 16) of the appellant. 31. PW-11 Dinesh Vashisht, SHO, deposed that at the time written report (Ex.P 3) was filed he was out of station on Government duty and that when he reached the police station on 12.8.92 at about 4.00 PM., that he took the investigation of this case. 30. PW-10 Pohap Singh has proved the arrest memo (Ex.R 16) of the appellant. 31. PW-11 Dinesh Vashisht, SHO, deposed that at the time written report (Ex.P 3) was filed he was out of station on Government duty and that when he reached the police station on 12.8.92 at about 4.00 PM., that he took the investigation of this case. He inspected the site and prepared site plan (Ex.P 7). He also seized the blood smeared soil and control sample of the earth from the place of incident vide Ex.P. 9 & 10 respectively. He told that Bahadur was produced in the police station but since his condition was serious, he was immediately sent to Dholpur hospital for treatment and that when the latter recovered he was formally arrested on 16.8.92. In his cross examination he admitted that by the time he reached the police station, appellant Bahadur had already been sent to Dholpur Hospital. He told that Khushiram, ASI had informed him that one silver chain, gold tarki and rupees ten were also recovered from the appellant. The prosecution has not examined Khushiram, ASI Thus, this witness does not prove the alleged recover of the said articles. He also admitted that he did not get the test identification parade in respect of those articles, arranged by a Magistrate. 32. DW 1 Shiv Charan aged 55 years is a resident of village Nadapur. He stated that he used to cultivate potato in the agricultural field of Smt. Gora for a few years. He told that on the date of incident he had gone to sell vegetables and that appellant Bahadur used to cultivate the field of the deceased. He stated that the appellant used to sell deshi ghee in Sarmathura and used to reside with Smt. Gora. He told that when he returned after selling the vegetables, he came to know that Basudev and Kali Charan etc. had assaulted Smt. Gora as also the appellant. Thus, he is not an eye witness of any incident and his testimony is based on hearsay evidence. He told that admitted that Smt. Gora is aged about 45-46 years and that the age of the appellant was about 30 years. This witness has, deliberately spoken a lie on this count. He does not have any direct knowledge about the alleged incident. He told that admitted that Smt. Gora is aged about 45-46 years and that the age of the appellant was about 30 years. This witness has, deliberately spoken a lie on this count. He does not have any direct knowledge about the alleged incident. Moreover, it does not appear to reason that Smt. Gora, who was an old lady of about 55 years would have illicit relations with the appellant, who was a young boy of about 19-20 years. Moreover, not a single prosecution witness has admitted that appellant used to live with Smt. Gora and that Basudev and others suspected that he had illicit relations with the deceased. In our considered opinion, there is no evidence to infer that the appellant had illicit relations with the deceased and that Basudev and Har Charan had committed the murder of deceased Gora and falsely implicated the appellant. Hence the defence plea taken by the appellant appears to be patently connected, false and is a creature of an after thought. The defence version, therefore, does not stand probablised. 33. We are of the firm opinion that the learned trial judge has discussed, analysed and evaluated the evidence recorded in this case in a right perspective. 34. In this case, the FIR was lodged promptly by Basudev. Since the condition of Smt. Gora was serious, she was first of all taken to Primary Health Centre, Sarmathura, where she was given first aid and was referred by the doctor to Dholpur hospital. But while proceeding to Dholpur, she succumbed to her injuries. The written report (Ex.P. 3) has been well proved by Basudev. In such circumstances, the non-examination of Babulal, the scribe of the written report (Ex.R 3) is not at all fatal to the prosecution case. 35. We do not find any substance in the contention of Shri Biri Singh that from the injuries sustained by Smt. Gora, it was manifest that those were caused by sharp and blunt objects suggesting that there were more than one assailant. As mentioned earlier injury No. 1 to 4 were caused by sharp weapon. In jury No. 5 was also caused by a sharp edged weapon because the skin and the cartilege of the right ear of the deceased was found to be cut through and through. As per testimony of PW 1 Dr. As mentioned earlier injury No. 1 to 4 were caused by sharp weapon. In jury No. 5 was also caused by a sharp edged weapon because the skin and the cartilege of the right ear of the deceased was found to be cut through and through. As per testimony of PW 1 Dr. Goyal injury No. 6 of post mortem report Ex.P 1 could have been caused by a fall. Thus, by any stretch of imagination, it can not be held that the injuries sustained by the deceased were caused by two persons. 36. Shri Biri Singh has contended that PW-2 Basudev was not an eye witness, that as per testimony of Smt. Maya she was the first to reach at the place of incident and that Basudev and Har Charan had come much thereafter. A close scrutiny of the statements of mentioned earlier while assessing the statement PW-2 Basudev, PW 3 Har Charan and PW 4 Smt. Maya, reflects that this contention of Shri Biri Singh is clearly misconceived and based on misreading of evidence. On the other hand, it stands fairly established that first of all PW 2 Basudev had reached the place of incident after hearing the groaning of Smt Gora and that Smt. Maya had reached there after the appellant had been apprehended by Basudev and others. 37. Shri Biri Singh has placed reliance on Muluwa and other v. The State of Madhya Pradesh, (AIR 1975 SC 989) , wherein it has been observed that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed and no counted. We respectfully agree with this dictum of law. But in the case on hand, PW 2 Basudev is a reliable witness and whose testimony also stands corroborated by the testimony of PW 3 Har Charan and PW 4 Smt. Maya as also by the medical evidence. 38. In our opinion, the appraisal of evidence made by the learned trial judge is neither dogmatic nor erroneous. 39. Another submission of Shri Biri Singh is that the site plan (Ex.P. 7), the place from where Basudev had heard the groaning of Smt. Gora has not been shown and, thus, the investigation in this case has been casual and tainted. In our opinion, the appraisal of evidence made by the learned trial judge is neither dogmatic nor erroneous. 39. Another submission of Shri Biri Singh is that the site plan (Ex.P. 7), the place from where Basudev had heard the groaning of Smt. Gora has not been shown and, thus, the investigation in this case has been casual and tainted. The site map, Ex.P 7 was prepared by the Investigation Officer on the basis of the statement made to him by the witnesses during the course of investigation. Therefore, showing the place where Basudev heard the groaning of Smt. Gora at the time of incident as also the place where the appellant was apprehended could not be admissible evidence in view of the provisions of Section 162 Cr.P.C. The site plan is only admissible in evidence up to the extent as to what the Investigation Officer, saw or observed himself at the spot. Thus if the Investigation Officer notices that blood was lying at the place of incident or weapon of offence stained with blood was found there, then only those facts which the investigation officer had seen, observed or noticed can be admissible in evidence. Therefore, simply on the ground that the investigation officer did not mark the place where Basudev heard the groaning of Smt. Gora in the site plan (Ex.P. 7), it can not be held that it was prepared in a casual and slip shod manner and this omission does not in any way adversely affect the prosecution case. 40. In Vahula Bhushan @ Vahuna Krishnan v. State of Tamil Nadu, (1989(1) Crimes 183) the Apex Court has held that there is no rule of law that the testimony of a single witness can not be accepted and the conviction can not be based on such evidence, if believed. The testimony of a single witness if it is straight forward, cogent and credible then a conviction can be made on the testimony of such a single witness. 41. In the instant case, the statement of PW 2 Basudev gets sufficient corroboration from the testimony of PW 3 Har Charan & PW 4 Smt. Maya as also from the medical evidence. 41. In the instant case, the statement of PW 2 Basudev gets sufficient corroboration from the testimony of PW 3 Har Charan & PW 4 Smt. Maya as also from the medical evidence. The FSL Report (Ex.P. 17) also fairly establishes that the blood smeared soil and Gandasa (Art. No. 1), which were seized and sealed from the place of incident, and the blouse of the deceased, which was seized and sealed by the doctor, on Serological examination were stained with human blood having O' group. This conclusively proves that the injuries were inflicted to Smt. Gora by Gandasa (Article 1). As per testimony of Basudev (PW 2) he had seen the appellant holding Gandasa (Art. No. 1) in his hand, which had blood stains, the moment of time he had entered into the pathore of Smt. Gora and that she was found lying there and was bleeding from her head. 42. We also do not find any force in the contention of Shri Biri Singh that the Investigation Officer failed to lift the finger prints from the handle of the Gandasa (Art. 1). Since it was not recovered at the instance of the appellant, therefore the recovery thereof does not incriminate him with the crime. Firstly no question was put to the Investigation Officer to establish that he had found chance prints on the handle of the said Gandasa. Thus the very existence of the chance prints on the handle of the Gandasa has not been established. In such circumstances, there was no question of lifting non- existent finger prints. Secondly, Gandasa (Art. No. 1) belonged to Smt. Gora, which was used for cutting fodder, Basudev, Har Charan and Smt. Maya, who are the nephew, son and grand-daughter respectively of the deceased had many occasions to see the said Gandasa prior to the incident. They have clearly identified it during the course of their statement before the trial court. Basudev has specifically stated that he had seen the appellant holding Gandasa (Art. No. 1 in his hand) at the time of the incident. In such circumstances, it can not be said that seizure memo of Gandasa (Art. No. 1) does not incriminate the appellant with the crime. 43. Shri Biri Singh has not put forward any argument about the alleged oral dying declaration of Smt. Gora. In such circumstances, it can not be said that seizure memo of Gandasa (Art. No. 1) does not incriminate the appellant with the crime. 43. Shri Biri Singh has not put forward any argument about the alleged oral dying declaration of Smt. Gora. As a matter of fact, no question was put either to PW 3 Har Charan or PW 3 Smt Maya, who have clearly proved the oral dying declaration of Smt. Gora to the effect that the boy (appellant), who was tied down by the villagers had inflicted Gandasa blows and caused injuries to her. We do not find any valid and sufficient reason to discard the testimony of these witnesses regarding the oral dying declaration made by the deceased. 44. In Pyara Singh v. State of Rajasthan (1985 Cr.L.R. (Raj.) 170) , it has been observed that some minor discrepancies and inconsistencies in the police statement and the statement of the witnesses given during trial are bound to occur due to the lapse of time even in the statements of truthful witnesses and that such minor discrepancies have to be ignored. In the instant case we do not find any material contradiction, inconsistency or incongruency in the testimony of PWs 2, 3 & 4. 45. The recovery of Silver chain, gold tarki and currency note of Rs.10/- from the possession of the appellant Bahadur has also been proved by the testimony of Basudev, who had produced those articles alongwith other villagers to the police. He stated that those articles belong to Smt. Gora. The appellant in his police statement under section 313 Cr.P.C. has not claimed that those articles belonged to him nor any suggestion has been put to the PWs to show or to infer that those articles belonged to him and that those articles belonged to him and that those articles did not belong to the deceased. The appellant has also failed to explain as to how he came in possession of those articles, which belonged to the deceased immediately after the incident. He has failed to rebut the presumption which creeps up against him under section 114 Evidence Act. In such circumstances, not conducting the test identification parade of those articles is not fatal to the prosecution case. No other point was pressed before us. 46. He has failed to rebut the presumption which creeps up against him under section 114 Evidence Act. In such circumstances, not conducting the test identification parade of those articles is not fatal to the prosecution case. No other point was pressed before us. 46. Hence, for the reasons mentioned above, we are of the considered opinion that the learned trial judge has not committed any illegality either of fact or of law in convicting the appellant for the offence under section 302 and 394 IPC. The impugned judgment, therefore, does not warrant any interference. 47. The net result of the above discussion is that this appeal is meritless and the same is hereby dismissed and the conviction and sentence of appellant Bahadur are hereby maintained. The appellant be informed accordingly through the jail authorities.> Appeal is merit less. Conviction and sentence maintained. Appeal dismissed.. *******