D.G. Deshpande, J.

This is an appeal through jail. We had appointed advocate Smt. Sharmila Kaushik for the appellant. We heard the arguments of Smt. Kaushik and learned APP Mr. Singhal. The appellant is convicted by the trial Court for offence under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay fine of Rs.500/- in default to suffer 9 months R.I. The judgment of the trial Court is dated 22.6.1994.

2.The facts giving rise to the aforesaid conviction are as under :

One Nagarabai is the deceased in this case. She had earlier married to one Kishan Holkar and after his death she married with the accused. They stayed together for some days. Some differences arose between them and, thereafter she started living alone in one hut in Survey No.65 of Nigadi Gaothan. It also appears that there was no marriage between deceased Nagarabai and the accused, but the said Nagarabai was the keep of the accused.

3.On 15.2.1992 the accused was seen talking with Nagarabai between 10 to 11 a.m. and, all of sudden at about 10.50 or 11.00 a.m. the accused inflicted injuries on her abdomen with knife. The incident was witnessed by one Surekha Kamble and Neeta Karmarkar. Thereafter the accused went directly to the police chowky, narrated the incident and also told them about the place of incident. He also produced a dagger which was seized from him. Thereafter the police went to the spot, they found dead body of Nagarabai, prepared inquest panchanama; carried out further investigation, thereafter a charge sheet came to be filed and the accused was convicted as aforesaid.

4.At the time of hearing before us we found that even though many blood stained articles connected with the crime were recovered by the police and sent to the Chemical Analyser, report of the Chemical Analyser as per Exhibit 30 is inconclusive in respect of some articles and therefore, in order to know the exact position we passed an order and called the Chemical Analyser for examination in Court. Accordingly, the evidence of Chemical Analyser Mrs. R.D. Gujrathi was recorded by us. She was cross examined by the advocate for the accused. And thereafter we heard the arguments on merits again.

5.Counsel for the accused pointed out that admittedly the information given by the accused about committing murder of Nagarabai could not be read in evidence as F.I.R and could not be used against the accused. She further pointed out that two eye witnesses had contradicted regarding material story of the prosecution, therefore, they could not be relied at all and, if, the evidence of these two witnesses is given a go-bye, then there is no evidence against the accused and, the accused is entitled for acquittal.

6.As against this, the learned APP Mr. Pravin Singhal contended that even if the F.I.R. or the information given by the accused to the police regarding commission of crime by him cannot be used against him, the facts that the accused had gone to police station, that he produced blood stained dagger, that his blood stained clothes were recovered by the police, that the accused pointed the place where the body of Nagarabai was lying can be taken against him. He further pointed out that the child witness was cross examined and the contradictions were not material so also the other witness and, therefore, the trial Court has rightly convicted the accused, hence no interference is called for.

7.The learned APP further pointed out that since this Court has examined the Chemical Analyser, who has stated about the precautions to be taken by the Investigating Officer for sending the blood stained articles to the Chemical Analyser, the same should be again reiterated in the case enabling the Investigating Officer to carry out investigation correctly, truthfully and successfully.

8.Out of two eye witnesses examined by the prosecution, first is Surekha Kamble (P.W.2), a minor girl 12 years of age on the date of examination in Court. She has stated that the incident took place on Saturday. On that day she returned from school at 10 a.m. and went to her uncles house to collect a key of the house. She returned to the house, kept the school bags in the house and came out. She saw that the accused was talking with one woman. She again came in the house and took her meals and, was standing near the door after her meals and, at that time she saw the accused inflicting injuries by means of dagger on the abdomen of that lady. The accused caused three stabbed wounds to that lady and, thereafter accused was seeing running towards Yamunanagar by her house. She went near that lady, saw injury on her person; then came to her house; locked the same and went to her uncle and narrated the incident to him. Thereafter she again came back and saw the police constable near that lady and also saw that the lady being taken in one vehicle. She also saw the accused with the police when the injured was taken away and also saw that the intestine of that lady was protruded. The dagger was shown to her and she identified the same. This witness was subjected to the cross examination and only contradiction brought in her evidence is that according to her, the dagger was lying near the lady. Further in para 8 of her cross examination she admitted that she did not see who stabbed the person. It is on the basis of these two contradictions, the advocate for the accused contended that the evidence of this witness should be totally discarded.

9.We are not in agreement with the submissions made by the advocate for the accused. Medical report supports the contentions of witness Surekha that there were three stabbed wounds on the body of Nagarabai, that her intestine was protruded is clear from the inquest panchanama, that the place of incident is the same is also proved by her because it is supported by panchanama Exhibit 7. Secondly, this witness P.W.2 has no animus against the accused nor she has any ill will or grudge against the accused. She is totally independent witness and nothing is suggested in the cross examination as to why should she depose against the accused. Admission by the witness that she saw the dagger lying near the body cannot be said to be material contradiction nor her admission in the cross examination that she did not see anybody inflicting the blows. The evidence of this witness that she saw the accused proceeding towards Yamunanagar is strongly corroborated by other witness Neeta (PW 3). This witness (PW 2) gets corroboration to her testimony when she stated that the police had brought the accused and injured was taken. This is completely consistent with the prosecution case that the accused had gone to the police station and he brought back to the scene of offence. These two so called contradictions therefore do not affect the evidentiary value of this witness nor they make her evidence unreliable. Even though she has admitted that she did not see as to who stabbed the person, in the same paragraph she has given positive answer "I saw the accused while stabbing the wife."

10.The advocate for the accused also contended that there was delay in recording the statement of P.W.2 because her statement was recorded on the next day. We do not find that this delay could be said to be fatal to the evidence given by P.W.2. Her evidence is recorded in 1992 when she was 12 years of age. Incident has taken place two years back, she was 10 years of age and, therefore, delay of some hours in recording the statement of this witness will not affect her evidence at all.

11.The other important witness is Smt. Neeta Karmarkar (P.W.3). She has stated that she was residing in Yamunanagar and when she was in kitchen, she heard a cry of woman and saw that one person was passing by her side. When that person coming towards her building and he came near the building of this witness she asked him as to what had happened because she was under impression that, that person might have snatched gold chain of that woman and, therefore, the woman might have cried. The person did not give any response and she saw that he was wearing white pyjama and white shirt, he was about 50 years of age and he had a dagger in his hand. She has identified the accused to be the same person in the identification parade.

12.In the cross examination the witness fairly admitted that she did not see the accused actually stabbing the woman. Apart from this, there is nothing in the cross examination which could affect the testimony of this witness. The evidence of this witness is also assailed on the ground that there is delay in recording her statement and; also on the ground that when the police came to the spot she did not volunteer to come and depose to the police.

13.We do not find any substance in the argument. This witness corroborates the evidence of P.W.2 and, recovery of white pyjama and white shirt from the accused and, finding of the body on the place near her house strongly support her contentions. The witness has stated in cross examination that the police came to the spot along with accused. This also corroborates the entire prosecution case.

14.Since the entire attack of the advocate for the accused is on the testimony of these two witnesses and, we do not find any substance in the submissions made in that regard, we have to reject the submissions made by the advocate for the accused. As a result the judgment of conviction has to be upheld. The advocate for the accused contended that if one dagger was seen by P.W.2 at the spot, then dagger produced by the accused could not be taken into consideration or, benefit of this anomaly has to be given to the accused. We are in disagreement with this submission. The prosecution has examined one Gomaji Namdev Pagare (P.W.6). He was a retired PSI. He has stated that on 15.2.92 he was attached to Yamunanagar Police Chowki, on that date at about 11.00 a.m. the accused appeared at the police chowki, he was possessing a knife and his clothes were stained with blood, the accused gave information about the murder of his keep by means of knife, there after the police went to the spot, dead body was seen in the pool of blood, then he prepared inquest panchanama, photographer was called and, the body was then sent to Sassoon Hospital for postmortem. Thereafter, spot panchanama was prepared, then accused was brought to the chowki, then blood stained clothes and dagger were seized under panchanama Exhibit 12 and, then F.I.R. was registered vide Exhibit 23. Panchanama of the clothes shows that they were white clothes i.e. payjama and shirt. They corroborate the testimony of P.W.3.

15.From the scene of offence earth soiled with blood was recovered. Clothes of the deceased were recovered and thereafter all these items including dagger were sent to Chemical Analyser. Postmortem of the body of Nagarabai was carried and it reveals that there were five incised wounds and some internal wounds and, the cause of death was shock and haemorrhage due to multiple stab-wounds.

16.Considering all the aspects the conviction of the appellant has to be upheld and maintained and, the appeal has to be dismissed. However as requested by the witness examined by us who was working in Forensic Science Laboratory and by the learned APP we issue following directions to be followed by the Investigating Officers while sending the samples for examination to the CA and ascertaining blood group and whether blood is of human. Hence the order :

ORDER

Appeal is dismissed.

Conviction of the appellant is upheld and maintained.

All Investigating Officers should follow the directions mentioned herein under;

(i) Blood samples should be sent immediately to the Forensic Laboratory;

(ii) The blood sample should be mixed with preservative.

(iii) The blood sample should be taken in bottle which is fully sterile and mixed with preservative;

(iv) In addition, blood sample of the deceased should be taken on dry and clean cloth i.e. bandage cloth available in hospital or bandage available in pharmaceutical shops can also be used;

(v) If the blood stains are obtained on a dry cloth, that cloth should be dried not only in the sun or by applying heat, but they should be dried under fan or open air.

(vi) Precautions regarding drying of the samples also equally applies to earth mixed with blood, blood stained grass, stones or weapons or other articles;

(vii) Apart from this, the circular and the guidelines issued by the Forensic Laboratory Bombay to all the police officers should also be followed strictly.

Copy of this judgment be forwarded to the Commissioner of Police, to be circulated amongst all the P.S.I./ Investigating Officers.