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4.5 After arrival of the complainant at the place of occurrence, he waited there for some time because family members of the deceased were crying. Thereafter, he went to call Sarpanch Dahyaji Nemaji. He also went to Thakor Sendhaji Kalaji and informed them about the incident. As it was a night time and no vehicle was available, the complainant in company of Sarpanch Dahyaji Nemaji and Thakor Sendhaji Kalaji went to Agathala Police Station on foot. After reaching Agathala Police Station, the complainant lodged his complaint giving names of the accused persons as the assailants at about 7-30 a.m. on 30th September, 1993. That complaint was taken down by P.W.14 Hanumanprasad Ramjilal Yadav who was P.S.O. of that Police Station. He registered that complaint which came to be registered as CR.No. I 87 of 1993. As P.W.15 P.S.I. Mr. D.A. Desai of the Police Station was not available in the Police Station, Mr. Yadav handed over the charge of P.S.O. of the Police Station to one Head Constable Jawansinh and he took over the investigation of the case. First he made a report under Sec.157 of Cr.P.C. to the learned Magistrate of the Criminal Court and thereafter he went to the scene of offence. Thereafter he prepared an Inquest Panchnama with regard to dead body of the deceased during the period between 10-30 a.m. and 11-30 a.m. on 30/9/1993. He sent dead body with Yadi to Civil Hospital, Deesa for autopsy. Mean while, S.D.P.O. came there for visitation of the crime and he directed Mr. Yadav to hand over further investigation of the case to Police Head Constable Kasamkhan. P.W.13 Kasamkhan Ramzankhan drew a panchnama of the scene of offence during the period between 11-35 a.m. and 12-15 p.m. on 30-9-1993. While drawing the panchnama, he recovered and seized the sample of control earth and blood stained earth along with the blood stained quilt from the cot on which deceased was sleeping, in presence of Panch witnesses under Panchnama. Thereafter, he recorded the statements of witnesses who were conversant with the facts of the case. Along with those witnesses, he also recorded the statements of Ramaben a wife of the deceased, Amriben daughter of the deceased, Sarpanch Dahyaji Nemaji, Bhagwanji Virchandji -son of the complainant, Bhemaji Virchand another son of the complainant and Sendhaji Kalaji. Thereafter, P.S.I. Mr. Desai returned from Bandobast duty and therefore Mr. Kasamkhan handed over the charge of further investigation of the case to P.S.I. Mr. Desai. Thereafter, Mr. Desai obtained the certificate with regard to cause of death from the hospital. Thereafter he seized the clothes taken from the dead body of the deceased and received from the Civil Hospital. Thereafter he arranged to call the Circle Inspector of Revenue Department for drawing a map of the place of offence. During the course of investigation, first the accused No. 1 Vahaji Ravaji was traced out and he was arrested on 1/10/1993. Thereafter accused Nos. 2 and 4 were arrested and then accused No. 3 was arrested. At the instance of accused Nos. 2 and 4, muddamal Axe and stick respectively were traced and that articles were recovered and seized under discovery Panchnama under Section 27 of the Indian Evidence Act. Thereafter when accused No. 1 was on police remand, on 2/10/1993, at the instance of accused No. 1, the Muddamal Dharia was recovered under discovery panchnama under Sec.27 of the Indian Evidence Act. Thereafter, muddamal weapons and articles which were recovered from the scene of offence were sent to the Forensic Science Laboratory, Ahmedabad (for short "F.S.L.") under a forwarding letter and on receipt of reports of analysis from F.S.L., Mr. Desai filed chargesheet against all the accused in the Court of the learned J.M.F.C., Deesa on 25th December, 1993. That chargesheet came to be registered as Criminal Case No. 2947 of 1993.

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13. Mr. Tejas Barot, learned Advocate has taken us through the entire evidence on record. He also read certain portions of the judgment impugned and challenged in Criminal Appeal No. 918 of 1995. Mr. Tejas Barot has assailed the judgment on the ground that looking to the dimension of blade of axe which is produced as Muddamal article No. 3 in the case and looking to the evidence of eye witnesses, it is not possible that size of only half c.m. depth could be seen in injury Nos. 2 and 3 each, and therefore, the Court should take a judicial notice that if the blow of an axe is inflicted with force, there would be more depth of injury, and therefore, this medical evidence does not support the case of the prosecution.

(1) Trachea containing blood clotts.

(2) Pharynx containing blood clotts.

As per column No. 23 of the Post Mortem Note, he has opined that cause of death was a shock due to heamorrhage and fracture of Lt. maxilla bone.

16.2 According to Dr. Bhati, all the aforesaid injuries were ante-mortem. In Para 14 of his deposition, he has stated that injury Nos. 1 and 4 could be possible by muddamal Article No. 1 -Dharia, while injury Nos. 2 and 3 could be possible by muddamal article No. 3 an axe. Looking to the medical evidence, the prosecution has proved to the satisfaction of the learned Judge of the trial Court that the deceased died a homicidal death to which the there is no dispute from the side of the accused, and therefore, the learned Judge of the trial Court has rightly come to the conclusion that the deceased died a homicidal death because of injuries sustained by him which are mentioned in para 17 of the post mortem notes. In view of the above clear cut medical evidence, this finding of the learned Judge of the trial Court that the deceased died a homicidal death, is upheld by us.

36. In view of the evidence on record, the prosecution has, by examining the Investigating Officer Mr. Desai proved two discovery panchnamas at Exs.32 and 33. All these incriminating weapons were sent to the F.S.L. along with blood stained quilt and clothes of the deceased which were also stained with blood. Muddamal article Nos. 3,4,5 and 6 are respectively quilt, "Bandi" (to be used as banyan), "Dhoti" and "Faliya" (to be used as turban). All the articles were found with human blood having 'A' Group. It is also found from forensic evidence that blood group of the deceased was 'A' group. The prosecution relies on forwarding letter Ex.44 with which all the muddamal articles were sent to F.S.L. The prosecution also relies on the report of F.S.L. which is at Ex.47 and Serological report at Ex.48. Muddamal articles i.e. Dharia and axe were found to have been stained with human blood and the group of human blood was found to be 'A' group, and therefore, by placing reliance on the evidence of three eye witnesses, it is proved that during the course of committing the offence, these two articles i.e. Dharia and axe were used. These circumstances appearing against the accused were brought to the notice of and explained to the accused but the accused have not explained this relevant piece of evidence. In absence of explanation, the only course remains to come to the conclusion that the accused Nos. 1, and 2 were in close proximity of the deceased when the deceased was fatally wounded. Our view if fortified by the decision in case of Ashok Kumar Vs. State (Delhi Administration) reported in 1995 SCC (Cri) 1085. In that case also, blood of same group on the stone used as weapon of offence was discovered, the Hon'ble Apex Court has held that this indicates that the accused was in close proximity of the deceased when he was fatally wounded.