(1.)BY his Judgment dated April 23, 1979, the learned Additional Sessions Judge, Sirohi has convicted the appellant Savia and Chuna under Section 302, IPC and sentenced each of them to imprisonment for life with a fine of Rs. 200/ -, in default of the payment of fine to further undergo four months' rigorous imprisonment. The appellants have come up in appeal to challenge the conviction and sentence.
(2.)PUT briefly, the prosecution case, which is short and simple, is as follows: PW 5 Mst. Marga and PW 6 Patiya are the parents while PW 1 Babu is the nephew of the deceased Tejiya. The deceased was living with the parents in the town of Pindwara while Babu (PW 1) and his parents were living separately from them. Teja and his father had a field shown by mark 'D' in site plan Ex. P. 30. Contiguous to it, in the North, is situate the field of the appellant Savia. There was a Jhumpa in the field of the deceased. The appellants are also residents of town Pindwara. In the noon of October 20, 1979, Tejiya was working in his aforsaid field. His nephew PW 1 Babu was working in his field alleged to situate nearby. The Arhar crop was standing in his field. The appellants came where Tejiya was working Accused Savia had a gun with him while Chuna had two axes in his hand. Accused Savia fired two shots with his gun at Tejiya. Tejiya fell down. Thereafter both the accused -appellants struck multiple blows to him with the axes. There was profuse bleeding from his wounds and the clothes he was wearing got drenched with it. The appellants thereafter made good their escape. Babu (PW 1) got terribly frightened and he hid himself in the Arhar crop. When the accused went away, Babu came out and went towards Pindwara. In the way, he met his grand mother Mst. Marga (PW 5). He told her that Tejiya was done to death by the appellant. He proceeded further and met his grandfather Patiya (PW 6). Babu (PW 1) informed him also of the incident. Mst. Marga and Patiya came to the place of incident and found Tejiya lying in a pool of blood. He was groaning and moaning with pain but he was unable to speak. He passed away within some minutes. Patiya went to Police Station, Pindwara and verbally lodged report Ex. P. 2 of the occurrence at about 2.30 P.M. The police registered a case and the usual investigation ensued. The Station House Officer Bhagwan Dass (PW 15) immediately reached the scene of occurrence where the deadbody of Tejiya was lying. He inspected the site, prepared the site plan and the inquest report of the victim's dead body. He also seized blood stained soil from there. The medico -legal autopsy of the victim's dead body was conducted at about 9.50 A.M. on October 21, 1978 by PW 7 Dr. V.R. Bhandari, who was then working as Medical Officer Incharge, Government Dispensary, Pindwara. The doctor noticed the following ante -mortem injuries on the victim's dead body:
External 1. Through and through incised wound of 10.7 cm. on the right hand starting from lateral side of wrist to base of ring finger cutting scaphold and 2nd and 3rd metacarpal bones from middle of 2nd and lower part of 3rd meta carpal. 2. Circular wound of 1 cm. x 2 cm. on lateral sid -5 of upper part of right chest just below axilla. Skin of edge of wound was black. 3. Incised wound of 1 cm. x 1 cm. x 1 cm. on middle of dorsum of left thumb of hand. 4. Incised wound of 1 cm. x 1 cm. x 1 cm. on dorsum of base of middle finger of left hand 5. Multiple abrasions of 3 cm. x 2 cm. to 1.5 cm. x 7 cm on upper and outer part of the left upper arm 6. Incised wound of 1.5 cm. x 5 cm. x 2 cm. on middle of medial side of right thigh 7. Abrasions of 2.5 x 2.2 cm. on front of left knee 8. Incised wound of 5.2 cm. x 1.2 cm. x 2 cm. on middle of lateral side of right chest 9. Circular wound of 7 cm. diameter and 4 deep on the upper part of right scapular region. 10. There was swelling of 7 cm. x 6 cm. just medial to the wound No. 9, which was incised and splinter was removed and preserved. 11. A horizontal incised wound of 5.2 cm. x 2 c m. x 1 cm. just above the medial end of right clavicle. 12. Incised wound of 2.6 cm. x 2 cm. 1 cm. on middle of anterior part of neck 13. Incised wound of 13.5 cm. x 3.7 cm. at the mid -line and either side more on right side of lower part of back cutting skin, muscle, 12 thorasic vertebrae, spinal cord inferior venaceva and right kidney 14. Oblique incised wound of 11.9 cm. x 5.2 cm. on left side of abdomen lateral to umbilicus cutting all layers of abdominal wall. Small and large intestines were lying out side abdominal wall. Internal 1. 8th rib fractured 2. Tear of right pleurae of 1.7 x 6 cm. at the level of 8th rib 3. Tear of right lung 4. Incised wound 2.5 cm. x 0.5 cm. on small intestines 5. Lacerated wound 3.2 cm. x 2.5 cm. x 0.8 cm. on superior surface of right lobe 6. Incised wound 4.7 x 1.6 x 1.3 cm. on inferior surface of spleen 7. Incised wound 3.7 cm, x 0.9 cm. x 5 cm. on posterior surface of middle of kidney
Injuries No. 2 and 9 were caused by gun shot. Injuries No. 5 and 7 were caused by some blunt weapon while the rest were caused by sharp edged weapon. A splinter (pellet) was found embedded in the victim's dead body. The doctor was of the opinion that the cause of death of the victim was haemorrhage and shock due to injuries to vital organs i.e. lever, spleen, large vessels and spinal cord. He was further of the opinion that injuries No. 8, 13 and 14 were individually sufficient in the ordinary course of nature to cause death. The post mortem prepared by him is Ex. P. 3. The appellants were arrested and in consequence of the disclosure statements made by them, a gun, a sword and axes were recovered. Some blood -stained clothes were also recovered at their instance, which they were wearing. The seized articles were sent for chemical examination. Blood was found on most of them. On the completion of investigation, the police submitted a challan against the appellants in the Court of Judicial Magistrate, Abu Road, who in his turn committed the case for trial. The learned Additional Sessions Judge framed a charge under Sections 302, IPC against each of the appellants, to which they pleaded not guilty and faced the trial. Denouncing the whole prosecution story as false and fabricated piece of concoction, they claimed absolute innocence. In support of its case, the prosecution examined 15 witnesses and filed some documents. In defence, the accused examined one witness, viz. DW 1 Dr. B.K. Khatri, the then Chief Medical and Health Officer, Sirohi. On the conclusion of trial, the learned Sessions Judge found the charge duly brought home to the accused. They were consequently convicted and sentenced, as mentioned as the very out set. Aggrieved against their conviction and sentence, the accused have taken this appeal.
(3.)BEFORE proceeding further, we may state that the opinion of Dr. Bhandari (PW 7) pertaining to the cause of death of the victim was not challenged before us. We have carefully gone through the testimony of Dr. Bhandari and found no reasons to distrust his opinion. We, therefore, need not detain ourselves on this point It stands proved that the death of Tejiya was not natural. It was homicidal.