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Rajasthan High Court · body

2005 DIGILAW 1663 (RAJ)

Mahendra Kumar v. State of Rajasthan

2005-06-02

HARBANS LAL, V.K.BALI

body2005
Honble HARBANS LAL, J.–This appeal has been filed by appellant Mahendra Kumar against the judgment and order dated 2.3.2001 passed by the learned Sessions Judge, Kota whereby he has been convicted for the offences under Sections 302 and 324 IPC and sentenced to undergo life imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to further undergo simple imprisonment for one year for the offence u/s. 302 IPC and for the offence u/s. 324 IPC he has been sentenced to suffer rigorous imprisonment for three years. (2). The relevant facts, as per the prosecution version, are that the occurrence which led to the death of Tarun and injury to Om Prakash took place on 8.10.1998 at 9.30 p.m. After the said occurrence deceased Tarun and injured Om Prakash were carried to the Maharao Bheem Singh Hospital, Kota by Kamal PW-6 and Pappu PW-8 who got them admitted there. Emergency operation of Tarun was performed during the night itself, but he succumbed to his injury in the morning of 9.10.1998. On receiving information from the hospital, Heera Lal ASI reached there and recorded the statement of Om Prakash at 1.15 a.m. in the night intervening 8.10.1998 and 9.10.1998 where-upon a criminal case FIR No. 407/98 came to be registered by the S.H.O. Police Station Mahaveer Nagar, Kota for the offences under Sections 307, 341 and 323/34 IPC. Formal first information report was prepared, a copy whereof was forwarded to the concerned Magistrate which reached him at 12.05 p.m. on 9.10.1998. (3). In his statement (parcha bayan) injured Om Prakash has stated that his mother Mst. Shanti Bai PW-2 had lent Rs. 100/- to accused Mst. Sita Bai some 4-5 months earlier. His mother had to go to Iklera. The money available with her was short of the required amount. So, Mst. Shanti Bai PW-2 accompanied by Om Prakash PW-1 and deceased Tarun went to the house of Mst. Sita Bai and asked her to repay Rs. 100/-. But, Mst. Sita Bai refused to repay the amount, she also denied that she owed any such amount to Mst. Shanti Bai. She and her two daughters even tried to pick-up quarrel with her. Om Prakash PW-1 told her mother and deceased Tarun to return to their house without insisting on repayment of money. They started for their house. 100/-. But, Mst. Sita Bai refused to repay the amount, she also denied that she owed any such amount to Mst. Shanti Bai. She and her two daughters even tried to pick-up quarrel with her. Om Prakash PW-1 told her mother and deceased Tarun to return to their house without insisting on repayment of money. They started for their house. When they had come out of the gate of Babulals house, appellant Mahendra Kumar and Babulal stopped them just infront of their house. While accused Babulal caught hold of Tarun, appellant Mahendra Kumar inflicted a blow on his abdomen with the knife he had in his hand. When Om Prakash PW-1 exclaimed as to what he had done, Babulal left Tarun and caught hold of Om Prakash. Appellant Mahendra Kumar inflicted a knife blow on his abdomen as well. It is alleged that Kamal PW-6 and Pappu PW-8, who had also come there in the mean-while one after the other saw the occurrence. Pappu PW-8 then brought an auto-rickshaw from Teen Batti Chauraha and they both took Tarun and Om Prakash in it to the hospital and got them admitted. (4). After completion of necessary investigation, a charge-sheet was filed against appellant Mahendra Kumar and co-accused Babulal and Mst. Sita Bai. After committal of the case for trial, the learned Sessions Judge framed charges for the offences under Sections 302 and 324 IPC against appellant Mahendra Kumar and for the offence u/ss. 302 r/w 34 IPC and Section 324 r/w Section 34 IPC against co-accused Babulal and Mst. Sita Bai. They all pleaded not guilty and claimed to be tried where-upon the prosecution examined 11 witnesses and got exhibited 14 documents in support of its case. On the conclusion of prosecution evidence, when the accused were examined under Section 313 Cr.P.C., they denied the incriminating materials put to them. They, however, stated that they did not know as to why the witnesses had stated against them and they also did not lead any evidence in defence. (5). Learned trial Judge, after hearing both the sides and on the basis of the evidence on record, found that there was absolutely no evidence against Mst. They, however, stated that they did not know as to why the witnesses had stated against them and they also did not lead any evidence in defence. (5). Learned trial Judge, after hearing both the sides and on the basis of the evidence on record, found that there was absolutely no evidence against Mst. Sita Bai to connect her with the alleged crime with the aid of Section 34 IPC and the evidence against co- accused Babulal was also not sufficient and clinching to draw an inference of common intention on his part to commit the offence with which he was charged. Accordingly, the Trial Court acquitted Mst. Sita Bai and Babulal but convicted and sentenced appellant Mahendra Kumar as indicated above. Hence, this appeal by the appellant, but the State has not challenged the acquittal of other two accused persons. (6). We have heard learned counsel for the appellant, learned Public Prosecutor for the State and have, with the assistance of the learned counsel for the parties, perused the entire record as well as the impugned judgment. (7). The point for determination in this case is as to whether the finding of guilt recorded against the appellant for murder of Tarun and for voluntarily causing simple injury to Om Prakash by a sharp edged weapon vide impugned judgment and order dated 2.3.2001 is correct and justified or not. (8). The prosecution has examined Dr. Ashok Mundra PW-4 to prove post-mortem report of deceased Tarun and Dr. Rajesh Sharma PW-9 to prove medico legal report of Om Prakash, the injured who sustained a simple injury by a sharp edged weapon in this occurrence. The prosecution has examined Om Prakash PW-1, Mst. Shanti Bai PW-2, Kamal PW-6 and Pappu PW-8 to prove the occurrence. Fazlu Rehman PW-5 has been produced to prove the recoveries of knife and clothes of the accused from his house. Ram Deo Dukia PW-10 was working as SHO, Police Station Mahaveer Nagar, Kota. He has been examined to prove that he initially deputed Heera Lal ASI to conduct investigation in this case but he himself took over the investigation after FIR Ex.P-14 was registered on the basis of statement Ex.P-1 and after death of Tarun in the hospital on the next morning. He added Section 302 IPC. He has been examined to prove that he initially deputed Heera Lal ASI to conduct investigation in this case but he himself took over the investigation after FIR Ex.P-14 was registered on the basis of statement Ex.P-1 and after death of Tarun in the hospital on the next morning. He added Section 302 IPC. He prepared Panchayatnama Laash Ex.P-3, site plan Ex.P-4, seized clothes of the deceased vide memo Ex.P-2 and arrested the accused persons Mahendra Kumar, Babulal and Mst. Sita Bai vide arrest memos Ex.P-7, Ex.P-9 and Ex.P-10 respectively. (9). Dr. Ashok Mundra, who has been examined as PW-4, has deposed that in the morning on 9.10.1998, he had conducted post-mortem examination of the body of Tarun Kumar s/o Lal Chand Yadav in MBS Hospital, Kota and found the following external injuries:– 1. Stitched wound 16 cm long (Post operative) on anterior abdominal wall right paramedian plane; 2. Stitched wound 4 cm long oblique on right hypochondrium; 3. Drain tube present in right side lumber region. (10). On internal examination, right 8th rib of deceased Tarun was found cut at costo chondral junction along the track of injury No. 2 and Haematoma was present there. The peritoneum covering liver was also found cut along the track of injury No. 2 and peritoneal cavity was filled with 200 ml blood and blood clots. There was ante-mortem incised wound 3-1/2cm x 1/2cm x 2cm on right lobe of liver corresponding to injury No. 2. (11). According to him, it is normally difficult to survive for a person whose right lobe of liver is cut. The injury of this kind and nature may cause death either instantaneously or within a few hours. The post-mortem report is Ex.P-5 which was prepared by him. In his opinion, death of Tarun was caused due to shock as a result of ante-mortem injury to right lobe of liver which was sufficient to cause death in the ordinary course of nature. In spite of lengthy cross-examination, nothing material could be elicited from him which might render his testimony unworthy of credit. From the aforesaid medical evidence, it is apparent and is fully proved that Tarun died an unnatural death which was homicidal. This fact has been corroborated by the testimony of Om Prakash PW-1, who is himself an injured. (12). Dr. In spite of lengthy cross-examination, nothing material could be elicited from him which might render his testimony unworthy of credit. From the aforesaid medical evidence, it is apparent and is fully proved that Tarun died an unnatural death which was homicidal. This fact has been corroborated by the testimony of Om Prakash PW-1, who is himself an injured. (12). Dr. Rajesh Sharma PW-9, who was posted as the Medical Jurist in MBS Hospital, Kota, has deposed that he had examined the injuries of Om Prakash PW-1 on 9.10.1998. He found a stab wound 5cm x 3cm x cavity deep on left side of abdomen which was caused within 24 hours of examination. After obtaining opinion of Surgeon, this injury was opined to be simple in nature. His MLR is Ex.P-13 which was prepared by him and bears his signatures. (13). Learned counsel for the appellant has tried to canvass that his injury could be self-inflicted, but looking to the nature and site of the injury, it does not appear to be self inflicted. He, being an injured eye witness, his presence on the spot is beyond doubt. (14). Om Prakash PW-1 has stated that his mother had to go to Iklera. The amount which she had was short of the required amount. His mother had lent Rs. 100/- to Mst. Sitabai some 4-5 months prior to that day. His mother Mst. Shanti Bai, and deceased Tarun and he himself went to the house of Mst. Sita Bai to get the said amount. When his mother Mst. Shanti Bai asked Mst. Sita bai to return her money, she refused to repay the amount. She also denied that she had taken any amount as loan from her so much so that she started quarreling with his mother. At this, he told his mother to return to their house and it did not matter that she had refused to repay the amount. They started for their house. When they had already come out of their gate, accused Babulal and Mahendra Kumar asked them to stop. They came after them. While Babulal caught hold of Tarun, Mahendra Kumar inflicted a knife blow on his abdomen, as a result of which there was bleeding and he fell down. They started for their house. When they had already come out of their gate, accused Babulal and Mahendra Kumar asked them to stop. They came after them. While Babulal caught hold of Tarun, Mahendra Kumar inflicted a knife blow on his abdomen, as a result of which there was bleeding and he fell down. When Om Prakash tried to intervene and rescue him, Babulal caught hold of him from behind and Mahendra Kumar gave knife blow to him as well on his abdomen. He also fell down there. Seeing this, Mst. Shanti Bai was bewildered and started crying loudly for help. Kamal PW-6 and Pappu PW-8 who had come there in the mean-while on hearing the noise and seeing the crowd, also cried for help. Appellant Mahendra Kumar and accused Babulal fled away from there. Pappu PW-8 brought an auto- rickshaw in which he and Kamal PW-6 carried Om Prakash and Tarun to hospital and got them admitted. He has further stated that his statement was recorded by the police in the hospital which is Ex.P-1. The police had seized his pant and shirt after 2-3 days and prepared a memo Ex.P-2. (15). Mst. Shantibai PW-2, who is the mother of Om Prakash PW-1 has stated that Tarun was like her son. She had lent Rs. 100/- to Mst. Sita Bai about 4-5 months prior to that date and when she went there along with his on Om Prakash and deceased Tarun, she refused to repay her money and started hurling abuses upon her. Mst. Sita Bai and her two daughters were just to assault her. Her son Om Prakash PW-1 told her to return to their house and it did not matter that Mst. Sita Bai had refused to repay the money. When they had just come out of the gate of the house of accused Babulal, both Babulal and Mahendra Kumar called them from behind. After coming from behind, Babulal caught hold of the hand of Tarun and Mahendra Kumar inflicted a knife blow on his abdomen. He fell down on the ground. Om Prakash PW-1 exclaimed as to what he had done. Upon this Babulal caught hold of his hand and Mahendra Kumar gave him knife blow on his abdomen. He also fell down. After coming from behind, Babulal caught hold of the hand of Tarun and Mahendra Kumar inflicted a knife blow on his abdomen. He fell down on the ground. Om Prakash PW-1 exclaimed as to what he had done. Upon this Babulal caught hold of his hand and Mahendra Kumar gave him knife blow on his abdomen. He also fell down. On hearing their cries, Kamal PW-6 and Pappu PW-8 who were passing by, came there and Pappu PW-8 brought an auto-rickshaw in which both injured namely Tarun and Om Prakash were taken to the hospital and got admitted. Tarun was operated upon around mid night, but he died at about 9.00 a.m. in the next morning. Om Prakash PW-1 remained admitted in the hospital for about 10/12 days. She has clearly stated that there was no other enmity between them. But for the one emanating from demand of repayment of loan amount. (16). Kamal PW-6 has like-wise stated that when he went to the house of Mst. Sita Bai from his own house, he saw that Mahendra Kumar had first caused knife blow to Tarun and then to Om Prakash. The occurrence took place because they had asked Mst. Sita Bai to return their money. Pappu PW-8 also came there. They carried Tarun and Om Prakash to the hospital in the auto-rickshaw and both of them were got admitted. Pappu PW-8 has stated that at the time of occurrence, his parents had gone to see the fair. He was at his house all alone. There was crowd of people near the house of Babulal. Kamal PW-6 asked him to come along whereupon he told him to proceed and he would follow him. When he reached there and found Tarun was lying completely soaked in blood on the gate of Babulal and Mst. Sita Bai. Both Kamal PW-6 and Pappu PW-8 lifted injured Tarun and took him to hospital along with Om Prakash, the injured. They both returned to their houses in the night. When in the next morning he reached the hospital again, he came to know that Tarun had died. He has proved his signatures on seizure memos of knife Ex.P-6, site map Ex.P-4, seizure memo of clothes of deceased Ex.P-11. (17). They both returned to their houses in the night. When in the next morning he reached the hospital again, he came to know that Tarun had died. He has proved his signatures on seizure memos of knife Ex.P-6, site map Ex.P-4, seizure memo of clothes of deceased Ex.P-11. (17). Premchand PW-3 and Rajesh Kumar Yadav PW-7 are the witnesses of Panchayatnama of dead-body of Tarun Ex.P-8, site map Ex.P-4 and arrest memos of accused Mahendra Kumar Ex.P-7 and seizure memo of clothes of deceased Ex.P-11. They have supported these memos. Fazlu Rehman PW-5, the head constable has stated that after arrest on 15.10.1998, accused Mahendra Kumar got recovered a knife from his house about which memo Ex.P-6 was prepared. Jatashanker PW-11, the Constable proved that he had been handed over three sealed packets from P.S. Mahaveer Nagar, Kota for being taken to and deposited with FSL along with a forwarding letter. He deposited the sealed packets on 6.11.1998 and obtained receipt Ex.P-15. He has proved the link evidence. (18). Ram Deo Dukia PW-10 has stated that he was working as SHO- Incharge, Police Station, Mahaveer Nagar because the SHO posted there had gone for training. On the basis of parcha bayan Ex.P-1 of Om Prakash PW-1, he registered formal first information report Ex.P-14. He initially entrusted the investigation to Heera Lal ASI, but after the death of Tarun, Section 302 IPC was added and he himself took over the investigation of the case. He prepared Panch nama of the dead-body of Tarun Ex.P-3, site plan Ex.P-4, seizure memo of clothes of Om Prakash Ex.P-2. On 15.10.1998 Jagdish Chand, the regular SHO returned from training. So, he handed over the investigation of this case to him. The appellant as mentioned above has denied the incriminating material put to him in his statement under Section 313 Cr.P.C. as also his involvement in the occurrence and has led no defence evidence. (19). From the above oral and documentary prosecution evidence, it is established beyond all doubts that the occurrence took place when complainant Om Prakash accompanied by his mother Mst. Shanti Bai and deceased Tarun Kumar went to Mst. Sita Bai to seek repayment of her money. (20). (19). From the above oral and documentary prosecution evidence, it is established beyond all doubts that the occurrence took place when complainant Om Prakash accompanied by his mother Mst. Shanti Bai and deceased Tarun Kumar went to Mst. Sita Bai to seek repayment of her money. (20). Learned counsel for the appellant has contended that the First Information Report Ex.P-14 is not the actual First Information Report because the police admittedly had received telephonic information about the occurrence and the same was also entered in the general diary of the police station at Sr. No. 444 on 8.10.1998. He has submitted that neither the original nor its copy has been produced and got exhibited in evidence and this has been suppressed with a view to introduce Kamal PW-6 and Pappu PW- 8 as eye witnesses of the occurrence. In this regard reliance has been placed on Leeladhar vs. State of Rajasthan- 1952 ILR (Raj.) 1031. But a bare perusal of this case would reveal that it is clearly distinguishable on facts and it has also been held in this case that `every prosecution case need not necessarily be thrown out simply because of non-production of first information report, because there may be a case in which other prosecution evidence may be so strong that the conviction may be possible in spite of the absence of the first information report. In the face of this observation of Honble Division Bench of this court in the afore-mentioned case, there remains hardly any substance in the argument of the learned counsel for the appellant that the entire prosecution case should be thrown on the ground that the entry in the general diary recorded as per the telephonic information has not been produced. The parcha bayan Ex.P-1 on the basis of which formal first information report Ex.P-14 has been registered, it has been contended, cannot be treated as the FIR. (21). It is true that the copy of the entry in the general diary (Rojnamcha) has not been produced and exhibited in evidence, but as has been held in the afore-mentioned case, the entire prosecution case cannot be thrown on this ground alone. As indicated above, the authority is also distinguishable on facts. (21). It is true that the copy of the entry in the general diary (Rojnamcha) has not been produced and exhibited in evidence, but as has been held in the afore-mentioned case, the entire prosecution case cannot be thrown on this ground alone. As indicated above, the authority is also distinguishable on facts. In the above case, Giriraj Prasad PW-6 was sitting with the Circle Inspector at Dholpur when the latter told him that he had received a telephonic information from Gyasi from Kesar Bagh to the effect that some dacoits had chased him and had fired at him. He also admitted that Nihal Singh, who was with Gyasi at the time of the said occurrence, had also made a report at Police Station Basaidang on the same day. But the same had not been produced. Gyasi PW-1 had stated that a report Ex.P-1 was lodged by him on the next day in the morning i.e. the date following that of occurrence. It was in these peculiar facts and circumstances that FIR Ex.P-1 was found to be very doubtful, whereas in the instant case the parcha bayan has been recorded soon after the occurrence and there is nothing on record to indicate as to what telephonic information was in fact conveyed at the police station. Whether it discloses a cognizable offence or not is also not clear. Nothing with regard there-to could be brought on record in the cross-examination of the investigating officer. It is also not clear that the investigation had, in fact, been commenced. Therefore, neither Ex.P-1 can be said to be hit under Section 162 Cr.P.C. nor this authority is of any avail to the appellant in the peculiar facts and circumstances of the case. (22). Mr. Ahmed Bux, learned counsel representing the appellant has, then, argued that the place of occurrence has been changed by the witnesses as is evident from the statement of Mst. Shanti Bai PW-2 who has stated that the occurrence took place 2-4 furlongs away from the house of the accused and the site plan Ex.P-4 wherein it is mentioned that no blood was found on the spot. If the occurrence, it is contended, had taken place in front of the house of accused, blood must have been found there particularly when as per the prosecution case deceased Tarun Kumar and injured Om Prakash had profuse bleeding. If the occurrence, it is contended, had taken place in front of the house of accused, blood must have been found there particularly when as per the prosecution case deceased Tarun Kumar and injured Om Prakash had profuse bleeding. It is urged that the occurrence must have taken place some where else and not at the place where it is alleged to have taken place by the prosecution. (23). A bare perusal of the site plan Ex.P-4 would reveal that the place where occurrence had taken place is a thorough fare open for traffic and public at large and there was heavy traffic movement on that way. The site plan Ex.P-4 was prepared at 4.00 p.m. On 9.10.1998 and the occurrence took place in the previous night. The absence of blood on the spot, therefore, clearly stands explained and is of little consequence in this case. In the face of over whelming direct evidence of un-impeachable character on record and in the absence of cross examination to the eye witnesses on this aspect of the matter, it is natural that a large number of people must have passed through that way besides vehicular traffic and it was because of this that no blood was detected there. (24). It is true that Mst. Shantibai PW-2 has at one place in her cross examination stated that the occurrence had taken place at 2-4 furlongs away from the house, but she has thereafter also stated that it is correct that Babulal and Mahendra Kumar had caught hold of Tarun Kumar in front of their house after he went 2-4 steps ahead. Her entire statement will have to be read in conjunction as a whole and a part of it cannot be disjoined and read separately. (25). Learned counsel has strived hard to point out that there is a certificate appended to the statement of Mst. Shanti Bai PW-2 indicating that her statement was typed in the open court in the presence of the trial Judge which was read over to the witness who accepted it to be correct and in spite of this the explanation given by the trial Judge in the judgment cannot be accepted that the above fact must have been mentioned due to typographical error or due to the witness not properly understanding the fact. Assuming that the criticism of the learned counsel for the appellant has some substance, the fact cannot be lost sight of that it was a thorough fare as mentioned in the site plan Ex.P-4 and the site plan was prepared at 4.00 p.m. on 9.10.1998 whereas the occurrence had taken place during the previous night and due to the movement of large number of people at that place, it is natural that the blood spots might not have been left there. Therefore, this contention of the learned counsel also does not detract from veracity of the prosecution story. (26). Learned counsel has placed reliance on the case of State of U.P. vs. Bhagwant & Ors.- 2003 Cr.L.J. (SC) 2337 in this regard, but facts of that case are clearly distinguishable from the facts of the instant case in as much as besides failure on the part of the investigating agency to collect blood stained earth from the place of incident, the accused had assaulted and killed son of witness when he questioned them regarding their presence in the field as per prosecution case whereas the witness who ought to have been the main target was spared. The oral evidence was also not in conformity with the medical evidence and thus, the presence of the eye witnesses was rendered doubt-ful. Whereas in the instant case, the evidence of the eye witnesses has remained unimpeached despite lengthy cross examination and ocular testimony of the eye witnesses is in complete conformity with the medical evidence on record. The absence of blood stains on the stated place of occurrence stands reasonably explained. So, this authority is of no avail to the appellant. (27). Learned counsel has also contended that there was no light there and the witnesses could not have seen and identified the appellant there. But it is not in dispute that the parties knew each other too well and they had prior to the occurrence talked to each other and there was altercation also. When viewed in this back-ground, the contention of the learned counsel that the appellant could not have been seen and identified by the witnesses pales into insignificance and in our well considered view there is hardly any pith and substance in this contention as well. (28). He has further submitted that the witnesses are highly interested witnesses. According to him, Om Prakash PW-1 is the son of Mst. (28). He has further submitted that the witnesses are highly interested witnesses. According to him, Om Prakash PW-1 is the son of Mst. Shanti Bai PW-2 and deceased Tarun Kumar was concededly like her son. Kamal PW-6 is a neighbour and, therefore, they all being interested witnesses, their evidence should not be relied upon implicitly without independent corroboration. In this regard reference has been made to the case of `Sharad Birdhichand Sarda vs. State of Maharashtra- AIR 1984 SC 1622 to contend that there is a general tendency amongst the close relatives to exaggerate or add facts or to falsely implicate the innocent persons. But it is too well settled that the evidence of near relatives cannot be discarded out-rightly simply for the reason that they are close relatives. The law with regard to the appreciation of evidence of such witnesses is that the court ought to examine their evidence with great care and caution and in the light of the checks and balances available on record. In the instant case, Mst. Shanti Bai PW-2 has stated that they had no previous enmity with the accused side and the quarrel started only because she demanded back her money. As a matter of fact, Babulal is called mama by her children being resident of the same village. There is thus, no material on record to indicate that the complainant side had any animosity or grudge against the accused side. We have very carefully scanned the evidence of the prosecution witnesses in the light of the criticism levelled by the learned counsel for the appellant and we find that nothing material has been elicited from these witnesses in their cross examination on the basis of which they could be dubbed as untruthful witnesses. A few minor variations here and there in their evidence not touching the substratum of the prosecution case and pertaining to the details do not render their testimony unworthy of credit. (29). It is also contended by the learned counsel that no motive for the occurrence has been proved by the prosecution and, therefore, the prosecution story deserves to be disbelieved. A reference in this regard has been made to the case of Savia & Ors. vs. State of Rajasthan-1985 Cr.L.R. (Raj.) 18, but that case is also clearly distinguishable on facts. It is also contended by the learned counsel that no motive for the occurrence has been proved by the prosecution and, therefore, the prosecution story deserves to be disbelieved. A reference in this regard has been made to the case of Savia & Ors. vs. State of Rajasthan-1985 Cr.L.R. (Raj.) 18, but that case is also clearly distinguishable on facts. It was a case of solitary witness whose evidence had serious infirmities whereas the present case is based on ocular testimony of more than one witness and is also duly corroborated by the medical evidence. The testimony of the eye witnesses has successfully withstood the test of cross-examination. (30). It may also be stated that in a case which is based on direct evidence of the eye witnesses, the absence of motive is of little consequence. The prosecution story cannot be doubted or thrown merely because there is no evidence of motive. This apart, in the instant case, the prosecution witnesses have clearly stated that the occurrence took place because Mst. Shanti Bai PW- 2 had demanded back her money from Mst. Sita Bai. The cause of occurrence has thus been clearly indicated. Therefore, this contention of the learned counsel also is of little avail to the appellant. (31). Learned counsel representing the appellant has further argued that it is a well settled proposition of law that the accused need not take the plea of self defence specifically and where from the evidence and other materials on record, it is proved that he had the right of private defence of person or property, he must be given benefit of the same. (32). According to him, it is not in dispute that the complainant side had come to the house of the accused. They were thus aggressors. The injuries caused to Om Prakash PW-1 and deceased Tarun Kumar who died of the injuries were caused in exercise of right of private defence of person. Only one injury each, it is urged, has been caused to deceased Tarun Kumar and Om Prakash. Appellant Mahendra Kumar who is ascribed these injuries has thus not exceeded his right of private defence. A reference has been made to Gottipulla Venkata vs. Subbrayamanayam & Ors.- AIR 1970 SC 1079 . (33). But, this argument also has no merit and substance in as much concededly the appellant and other two accused persons namely Babulal and Mst. Appellant Mahendra Kumar who is ascribed these injuries has thus not exceeded his right of private defence. A reference has been made to Gottipulla Venkata vs. Subbrayamanayam & Ors.- AIR 1970 SC 1079 . (33). But, this argument also has no merit and substance in as much concededly the appellant and other two accused persons namely Babulal and Mst. Sita Bai who have been acquitted by the Trial Court have not received any injuries on their persons. It is not the case that Om Prakash PW-1, deceased Tarun Kumar and Mst. Shanti Bai went there with any weapon. They, as per prosecution story, went there with the innocent and bonafide intention to demand the money lent by Mst. Shanti Bai to Mst. Sita Bai where-upon the altercation between them took place which resulted into the unfortunate occurrence. In these facts and circumstances, no right of private defence what-so-ever accrues to the accused appellant particularly in the face of the over- whelming evidence on record that appellant Mahendra Kumar inflicted one injury each to deceased Tarun Kumar and Om Prakash with a knife when they had already started for their house and had even crossed the gate of the house of the accused persons without further insisting for repayment of the amount which was lent to Mst. Sita Bai. No such plea has been set up by the appellant in his statement under Section 313 Cr.P.C. and no such suggestion has been made to the prosecution witnesses in their cross examination. The complainant side had admittedly no weapon in their hands and there could not have been any apprehension in the mind of the appellant and other accused persons that the complainant side would cause them hurt or would harm them in any manner what-so-ever. (34). So far as the legal proposition with regard to the availability of right of private defence is concerned, there cannot be any quarrel but the facts of the case cited by the learned counsel are clearly distinguishable from the facts of the instant case as is evident from the fore-going discussion. Thus, this argument of the learned counsel is also without any substance and merit. (35). Learned counsel for the appellant has also tried to canvass that the occurrence had taken place between Om Prakash and Tarun Kumar and they had in fact caused injuries to each other. Thus, this argument of the learned counsel is also without any substance and merit. (35). Learned counsel for the appellant has also tried to canvass that the occurrence had taken place between Om Prakash and Tarun Kumar and they had in fact caused injuries to each other. According to him, Tarun Kumar was a person of dubious character who had illicit relations with the sister of Om Prakash to which Om Prakash objected where-upon they had a quarrel which resulted into the occurrence in which Om Prakash received a simple injury by a sharp edged weapon and Tarun Kumar died of the injury sustained by him at the hands of Om Prakash. In deed, there is absolutely no basis for such an argument. There is neither any suggestion nor positive proof on record on the the basis of which it could be even remotely inferred that the occurrence as suggested by the learned counsel might have taken place. The appellant has not set-up any such plea in his defence nor any such plea could be spelled out even on the minutest scrutiny of the evidence on record. Thus argument, therefore, is also embedded in imagination and is far fetched and could hardly be believed. (36). Two daughters of Mst. Sita Bai, it is contended, were present in the house when the occurrence had taken place, but they have not been interrogated by the Investigating Officer nor they have been cited as witnesses nor they have been examined in the court. The prosecution has thus with-held these material witnesses which renders the investigation unfair and the testimony of the interested witnesses unworthy of credence. Two daughters of Mst. Sita Bai were at best the witnesses of the defence and it could not have been expected from the prosecution to cite such witnesses of the defence and to examine them in support of its case. Normally it could not have been expected from them to depose in favour of the prosecution. (37). This apart, this is not the type of lapse on the part of the investigating agency or the prosecution on the basis of which the entire prosecution story could be discarded or the prosecution evidence which is otherwise reliable and unimpeachable could be disbelieved. (38). (37). This apart, this is not the type of lapse on the part of the investigating agency or the prosecution on the basis of which the entire prosecution story could be discarded or the prosecution evidence which is otherwise reliable and unimpeachable could be disbelieved. (38). Severely criticising the recovery of knife, blood stained clothes of the accused and of the deceased and the injured, it has been contended, that these recoveries have not been proved by the independent witnesses and the report of the FSL having not been filed and got exhibited, the same do not have any evidentiary value to support the prosecution case. It is further submitted that the knife, the weapon of offence, has not been shown to the concerned doctor to prove as to whether the injuries in question received by the deceased and the injured could possibly be caused by the said knife or not. Assuming that the recoveries of knife, blood stained clothes of the accused, the deceased and the injured are proved, the same are of no help to the prosecution. It appears that the report of the FSL in on record, but it has not been got exhibited and it has not been put to the appellant in his examination u/s 313 Cr.P.C. as one of the incriminating circumstances. It is well settled that such a piece of evidence cannot be pressed into service against the appellant without being put to him. Therefore, there appears to be some force in this contention of the learned counsel that the circumstances of recovery of knife, blood stained clothes of the accused, the deceased and the injured are of little avail to the prosecution. But simply because of this lacunae in the prosecution case, the entire prosecution case cannot be wholly discarded. The evidence of the eye witnesses has remained un- impeached despite lengthy cross examination and on the basis of the ocular and medical evidence on record, it is proved beyond all manner of doubts that appellant Mahendra Kumar caused the death of deceased Tarun Kumar and voluntarily inflicted a simple injury with a sharp edged weapon to Om Prakash. (39). The evidence of the eye witnesses has remained un- impeached despite lengthy cross examination and on the basis of the ocular and medical evidence on record, it is proved beyond all manner of doubts that appellant Mahendra Kumar caused the death of deceased Tarun Kumar and voluntarily inflicted a simple injury with a sharp edged weapon to Om Prakash. (39). Learned counsel representing the appellant has further contended that in case his other contentions on merits do not find favour with the court and the court comes to the conclusion that the appellant is responsible for the death of deceased Tarun Kumar, his alternative argument is that he has caused only a single injury. There was no animosity between the parties. So, his act would at best fall within the ambit of Section 304 Part II and not under Section 302 IPC. But as mentioned above, Dr. Ashok Mundra PW-4 has clearly opined that the death of Tarun Kumar was caused due to shock as a result of ante-mortem injury on right lobe of liver which was sufficient in the ordinary course of nature to cause his death. According to him, it is normally difficult for a person whose right lobe of liver has been cut to survive. The injury of this kind and nature may cause death either instantaneously or within a few hours. Thus, though the injury to deceased Tarun Kumar which is proved to be caused by appellant Mahendra Kumar was single in number, but it was so massive and on vital part of the body that it cut the right lobe of liver of the deceased which injury according to the medical officer was sufficient in the ordinary course of nature to cause the death. His intention was clearly to cause his death or at least he intended to cause such an injury which was sufficient in the ordinary course of nature to cause the death of Tarun Kumar. Therefore, it cannot be said that the act of the appellant would be covered u/s 304 Part II IPC or even under Section 304 Part I IPC and not u/s 302 IPC. The act of the appellant does not fall within any of the exception mentioned u/s 300 IPC. It is, therefore, a clear cut case which falls u/s 302 IPC. This contention, therefore, also cannot be accepted. (40). The act of the appellant does not fall within any of the exception mentioned u/s 300 IPC. It is, therefore, a clear cut case which falls u/s 302 IPC. This contention, therefore, also cannot be accepted. (40). Learned counsel for the appellant has submitted that the appellant was less than 18 years of age on the date of occurrence i.e. 8.10.1998 and after coming into force on 1.4.2001 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (here- in-after referred to in short `the Act of 2000), the appellant is entitled to the benefit provided under the Act of 2000. So, his sentence cannot be sustained. (41). However, an objection has been raised by and on behalf of the appellant that the learned Sessions Judge had no jurisdiction to conduct the inquiry regarding the age of the appellant and the same could be conducted by the Juvenile Justice Board only. (42). It is pertinent to mention here that the inquiry regarding age of the appellant was conducted by the learned Sessions Judge, Kota under the directions and orders of this court and no objection with regard to his jurisdiction was raised either before this court or before the learned Sessions Judge. Even the order in question was not challenged before the higher forum. It, therefore, does not lie in the mouth of the appellant to raise any such objection with regard to the jurisdiction of the learned Sessions Judge about conducting inquiry regarding age of the appellant. Besides this, Section 6(2) of the Act of 2000 authorises the High Court or the Court of Sessions before which the proceedings may be pending to conduct an inquiry regarding age of the person claiming to be juvenile. Thus, the inquiry conducted by the learned Sessions Judge, Kota cannot be said to be without jurisdiction. (43). Session 49 of the Act of 2000 further makes it abundantly clear that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that person in respect of whom order has been made is not a juvenile or child, and the age recorded by the competent authority shall for the purpose of the Act of 2000, be deemed to be the true age of that person. In this view of the matter also the finding of the learned District & Sessions Judge cannot be called in question. In this view of the matter also the finding of the learned District & Sessions Judge cannot be called in question. (44). Thus, viewed from any angle, the appellant was undisputedly more than 16 years of age on the date of occurrence i.e. 8.10.1998. He was also more than 18 years of age on 1.4.2001, the date on which the Act of 2000 came into force. (45). The Honble Apex Court in `Bijender Singh vs. State of Haryana & Anr.-2005(1) WLC (SC) Cri. 614 held that the Act of 2000 is prospective and not retrospective in nature. It is further held that a person who was not a juvenile under the Juvenile Justice Act, 1986 could be tried in any court. Section 20 of the Act of 2000 creates a legal fiction that a person although not a juvenile shall be treated to be one by the Board for the purpose of sentencing him as per the provisions of the Act of 2000. Following the law laid down by a Constitution Bench of the Apex Court in the case of Pratap Singh vs. State of Jharkhand & Anr. 2005(1) (SC) Cri. 452 = {JT 2005(2) SCC 271 } = RLW 2005(2) SC 261, the Honble Apex Court has held that Section 20 of the Act of 2000 would be applicable when a person is below 18 years of age as on 1.4.2001. For the purpose of attracting Section 20 of the Act of 2000, two conditions must be fulfilled; viz., (i) on the date of coming into force of the Act of 2000 the proceedings in which the petitioner was accused must be pending; and (ii) on that day he must be below the age of 18 years. By reason of Section 20 of the Act of 2000, the protection granted to a juvenile has been extended, but the extension is not absolute. This is only a limited one. The embargo of giving retrospective effect to a statute arises only when it takes away the vested right of a person. Under Section 20 of the Act of 2000 no vested right of a person has been taken away. An additional protection has only been provided to a juvenile. This is only a limited one. The embargo of giving retrospective effect to a statute arises only when it takes away the vested right of a person. Under Section 20 of the Act of 2000 no vested right of a person has been taken away. An additional protection has only been provided to a juvenile. Since in the instant case, the appellant was undisputedly more than 18 years of age on 1.4.2001, the date on which the Act of 2000 came into force and the proceedings as against him were also not pending under the Juvenile Justice Act, 1986, the appellant cannot be said to be entitled to the additional protection granted under the Act of 2000. Thus, this contention of the protection granted under the Act of 2000. Thus, this contention of the learned counsel for the appellant also will have to be rejected. (46). Consequently, finding no merit and substance in this appeal, the same fails and is hereby dismissed up-holding the order of conviction and sentence passed against the appellant by the learned Sessions Judge, Kota on 2.3.2001.