S. S. BYAS, J. - (1.)THESE two appeals by five appellants are directed against the judgment of the learned Sessions Judge, Merta dated July 30, 1979 convicting and sentencing them as under:- S. No. Name of Accused Offence U/s Sentence Awarded 1. Jai Ram 302/149, IPC Imprisonment for life 147. IPC Six months' rigorous imprisonment. 447, IPC Three months rigorous imprisonment. 323, IPC Six months rigorous imprisonment. 379, IPC One year's rigorous imprisonment. 2.Smt. Premli 302/149, IPC Imprisonment for life. 147, IPC Six months rigorous imprisonment. 447, IPC Three months rigorous imprisonment. 323, IPC Six months rigorous imprisonment. 379, IPC One year's rigorous imprisonment. 3. Bharta Ram 302/149, IPC Imprisonment for life. 147, IPC Six months rigorous imprisonment. 447, IPC Three months rigorous imprisonment. 323, IPC Six months rigorous imprisonment. 379, IPC One year's rigorous imprisonment. 4. Khinya Ram 302/149, IPC Imprisonment for life. 147, IPC Six months rigorous imprisonment. 447, IPC Three months rigorous imprisonment. 325, IPC Six months rigorous imprisonment. 379, IPC One year's rigorous imprisonment. 5. Ugma 302/149, IPC imprisonment for life. 147, IPC Six months rigorous imprisonment. 447, IPC Three months rigorous imprisonment. 323, IPC Six months rigorous imprisonment. Since both these appeals arise out of one and the same judgment, they were heard together and are disposed of by a common judgment.
(2.)BRIEFLY stated, the facts and circumstances leading to the prosecution and conviction of the appellants are as under. There are two deceased-victims and a number of injured persons in the case. The deceased-victims are Baksa-Ram and his son Surja Ram.
Pw 6 Hardeen is the son. Pw 9 Mst. Sohini is the daughter, Pw 7 Mst. Maluri is the widow of the deceased victim Baksaram while Pw 8 Mst. Kamla is the widow of the other deceased-victim Surjaram. They were living together in their Dhani situate in their field in Mauja Rol Chandawata Tehsil Merta District Nagaur. There were strained relations between the appellant Jairam and the deceased-victim Baksaram. Appellant Jairam had filed a suit against Baksaram which was pending at the relevant times when the incident took place. The appellants are also residents of the same village Rol Chandawata. At dawn-break on June 23, 1978 the deceased-victim Surjaram was ploughing his field situate continuous to the Dhani. The appellants accompanied with three more persons namely Khinyaram, Ramsukh and Hemaram came there where Surjaram was working. They were armed with lathies and other lethal weapons. They made an attack on Surjaram. Surjaram ran towards his Dhani and raised cries. Hearing his cries his father Baksaram (deceased-victim) his mother Smt, Maluri (Pw 7,) his brother Hardeen (Pw 6), his wife Smt. Kamla (Pw8), his sister Mst. Sohini (Pw9) came out. The appellants and their companions started landing blows with their weapons to Surjaram. Surjaram fell down. Baksaram tried to intervene and he too was not spared. Surjaram and Baksaram were given severe beatings, as a result of which they fell down and passed away instantaneously on the spot. Hardeen, Smt. Maluri, Smt. Kamla and Mst. Sohini were also not spared and they too were beaten. There was no adult male member in the family except the two deceased-victims. Pw 6 Hardeen was a boy of 10-11 years at the time of the incident. It is alleged that the culprits, while leaving the place of occurrence, forcibly took away a gold chain, a gold Bor and the gold Loongs of the injured victims. The news of the murders spread in the village. Pw 15 Hanumansingh went to Police Station, Merta Road and reported that as per rumour in the village, Baksaram and Surjaram were murdered. The information was recorded in "rojnamcha" of the Police Station. It is Ex. p. 45. Since the information was vague and disclosed nothing material, Pw 16 Shaitansingh Head Constable Police immediately left for the spot. He there found the victims' deadbodies lying in the field outside the Dhani. He also found Mst. Sohini and other injured victims sitting there. He recorded the statement of Mst. Sohini which is Ex. P. 40. Mst. Sohini in her statement Ex. p. 40, narrated the whole incident, Ex P. 40 was treated as the FIR and a case was registered thereon The investigation was taken up by the Deputy Superintendent of Police Shri Baktawarsingh (Pw 17 ). He immediately arrived on the spot and prepared the inquest reports of the deadbodies. He also inspected the site and prepared the site plan Ex p. 2. He seized and sealed the blood-smeared soil from the place of occurrence. The blood-stained clothes of the deceased-victims were seized and sealed. The post-mortem examination of the victims' deadbodies was conducted by Pw 5 Dr. Tulsaram, the then Medical Officer In-charge, Government Hospital, Merta Road. He noticed the following injuries on the deadbody of Baksaram:- 1) Lacerated wound 1-1/2" x 1/2" x bone deep on the left parietal region of head. 2) Lacerated wound 1/4" x 1/2" x muscle deep on the lateral and lower part of left arm, with haematoma. 3) Bruise 3" x 2" on the front and upper part of the left arm. 4) Lacerated wound 3/4" x 1/2" x muscle deep on the front and lower part of right arm. 5) Lacerated wound 2" x 1-1/2" x bone deep on the lateral aspect of right arm with huge haematoma. 6) Bruise with swelling 3" x 2" on the dorsal aspect of right hand causing fracture of underlined 3rd and 4th metacarpal bones. 7) Bruise 3-1/2" x 2" on the postero-medial aspect of middle part of right fore-arm. 8) Bruise on the front and middle part of the left thigh 9) Cylinderical bruise on the left side of abdomen 9" x 1-1/2". 10) Bruise 4-1/2" x 1-1/2" on the right side of chest on middle part. 11) Lacerated wound 1-1/2" x 1/3" skin deep on the lateral and middle part of left leg causing fracture fibula. 12) Bruise with haematoma on the lateral and lower part of right leg 3" x 2" causing the fracture of right fibula. 13) Multiple clyinderical bruises scattered irregularly and intermangling each other on the left side of back extending from scapular to lumber region. Their length varying 3" to 9" and width 1-1/2" and about 7 in number. The underlined 6th to loth ribs were fractured near the angles. 14) Four cylinderical bruises on the right of back over infra-scapular region inter mangling each other causing fracture of 7th to 9th ribs. Their lengths varying from 3" to 5-1/2" and width 1-1/2" of each. INTERNAL 1) There was fracture of 3rd and 4th right metacarpel bones under injury No. 6. 2) The fracture of left fibula bone under injury No. 11. 3) Fracture of left 6th to 10th ribs under injuries No. 13, causing laceration consequent extensive homo-thorax from the ruptured left lung, middle and lower lobe. 4) Fracture of right 7th to 9th ribs under injury No. 14 causing laceration lower lobe of right lung and consequent haemotherax. In his opinion the cause of death of Baksaram was sudden shack and syncope due to extensive bilateral haema-therax in both therasic cavities on account of multiple fractures of both sided ribs leading to rupture of lung substance and thereafter asphyxia and death. The injuries No. 13 and 14 were individually found sufficient in the ordinary course of nature to cause the death. The post mortem report issued by him is Ex. p. 34.

The doctor noticed the following injuries on the body of Surjaram:- 1) Lacerated wound 2" x 1/2 x bone deep on the left occipital region of head with clotted blood over it. 2) Lacerated wound l-1/2"x 1/2"x bone deep on the right front-partial region of head. There was depressed fracture of right parietal bone at its junction with frontal bone under this injury. 3) Lacerated wound 2" x 1/2" x bone deep on the right occipital region of head. 4) Two, cylinderical bruise on the postero-occipital aspect of middle and lower part of right arm each about 3" x 2". 5) Two bruises on the poster-medial aspect of right forearm on middle part each about 2-1/3" x 1-1/2". 6) Two bruises on the lateral aspect of middle part of left arm 2-1/2" x 1-1/2" each. 7) Lacerated wound 2" x 1/2" x bone deep on the postero-lateral aspect of left elbow. 8) Three bruises scattered on the posterior part of middle part of left forearm. 9) Four lacerated wounds on the front of left leg from upper to middle and lower each about 3/4" x 1/3" muscle deep. 10) Bruise 2-1/2" x 2" on the lateral and lower part of left leg causing fracture of fibula bone. 11) Five lacerated wounds on the front of right leg from upper to lower part each about 3/4" x 1 /3". 12) Multiple about 6 to 7 cylinderical bruises intermingling each other and scattered on the both sides of back from scapular to lumber area. 13) Multiple cylinderical bruises on the both buttocks. INTERNAL 1) Fracture of right parietal bone under injury No. 2 causing subarachaoid haemorrhage and haemotoma leading to compression of brain substance. 2) Fracture of left fibula bone under injury No. 10 The injuries were antemartem. In the opinion of Dr. Tulsaram, the cause of death of Surjaram was shock and come due to intracranial haemorrhage leading to compression of brain substance. Injury No. 2 was found sufficient in the ordinary course of nature to cause the death, The post martem report issued by him is EX. P. 33.

Dr. Tulsaram also examined the four injured victims and found the following injuries:- On the person of Smt. Maluri 1) Lacerated wound 1-1/2" x 1/3" bone deep on the right frontal region of head with clotted blood over it. 2) Reddish bruise with abrasion on the postero-lateral aspect of left forearm on middle part 3" x 2". 3) Lacerated wound 1-1/2" x 1/2"x muscle deep on the lateral aspect of lower part of right arm. 4) Lacerated wound 1-1/2" x 1/3" bone deep on the back and upper part of right forearm with clotted blood over it. 5) Reddish bruise 2-1/2" x 2" on the posteromedial aspect of right forearm middle part. 6) Six cylinderical reddish bruises irregularly scattered on the right infra-scapular and lower part of back of varying length intermangling each other. 7) Reddish cylinderical bruise on the left scapular region of back 4-1/3" x 1-1/4. 8) Bruise (reddish) on the left side back over lumber region 4 -1/4" x 1-1/2". 9) Three elongated reddish bruises scattered on the left buttock of varying lengths and inter-mangling each other. 10) Two cylinderical bruise each about 3-1/2" x 1-1/2" on the right buttock. 11) Lacerated wound 1-1/2" x l/2"x bone deep on the front and upper part of left leg with clotted blood over it. 12) Reddish bruise 3-1/2" x 1-1/3" on the lateral aspect of right leg over middle part with tender swelling. On the person of Smt. Kamla 1) Lacerated wound 2-1/2" x 1/3" x bone deep on the right front parietal region of head with clotted blood over it. Wound was stitched by me. 2) Reddish bruise with laceration of skin on the front and middle part of left leg 2-1/2" x 2" with tender swelling. 3) Reddish bruise with tender swelling on the dorsum of left foot 2-1/2" x2-1/2". 4) Reddish bruise 2-1/2" x 2-1/3" on the left lower thigh on the postere-medial aspect. 5) Lacerated wound 1" x 1/3" x bone deep on the front and middle part of right leg with swellinga round it. 6) Abradded area of skin 1-1/4" x 1/2" on the front of right knee. 7) Reddish bruise 2-1/2"x 1-1/4" on the back and middle part of fore-arm. 8) Lacerated wound l"xl/5" muscle deep on the back of right fore-arm. 9) Lacerated wound 1" x 1/3" on the back and upper part of right forearm, having bone depth. 10) Reddish bruise with tender swelling on the dorsum of right hand 3-1/4" x 2". 11) Reddish bruise with tender swelling on the back of right arm on lower part 3" x \y. 12) Reddish bruise 5-1/2" x 1-1/2" on the right scapular region. 13) Two reddish cylinderical bruise on the left scapular region each about 7-1/2" x 1-1/2" transversely oblique. On the person of Smt. Sohini 1) Lacerated wound 2-1/2" x 1/3" muscle deep on the left frontal region of just 1/2" lateral to mid-segital line with clotted blood over it. 2) Reddish bruise with tender swelling on the dorsum of right hand 4" x 2". 3) Reddish bruise 3" x 1-1/2" x on the back and middle part of right fore-arm. 4) Reddish bruise 2-1/2" x 2" on the lateral aspect of left elbow. 5) Reddish bruise 4" x 1-1/2" on the right shoulder. 6) Lacerated wound on the front and middle part of right leg 1-1/4 " x 1/5" x muscle deep. 7) Lacerated wound 1" x 1/3" on the front and upper part of left leg. 8) Two cylinderical bruises on the postero-lateral aspect of right thigh on upper part each about 4-1/2" x 1-1/2". 9) Reddish bruise on the lateral aspect of lower part of left leg 2-1/2" x 1-1/2. 10) Two cylinderical bruises on the scapular and infra-scapular region of back on left side each about 5" x 1-1/2". 11) Three cylinderical reddish bruises scattered irregularly on the right scapular infra-scapular and lunber area of back intermangling each other. On the person of Hardeen- 1) Reddish bruise with abrasion of skin over it with tender swelling measuring 3-1/2" x 2" on dorsum of right fact on middle part. 2) Reddish bruise with abrasion of skin over it on the front and middle part of left leg with tender swelling around it 2-1/2" x 2". 3) Reddish bruise with tender swelling on the lateral aspect of lower part of left leg 5" x 2". 4) Reddish bruise with tender swelling on the dorsum of the left hand measuring 4" x 2".

The injuries of all these four injured victims were found simple caused by blunt object. The injury reports are EX. P. 35. P. 37, P. 38 and P. 39. The appellants and their associates were arrested and in consequence of the disclosure statements made by them lathies, knife and the stolen gold ornaments were recovered. The clothes of some of them, were also found stained with blood. These clothes were seized and sealed. The blood stained articles were sent for chemical examination and human blood was detected on most of them. On the completion of investigation the police presented a challan against the appellants and their companions Bhinyaram, Ramsukh and Hemaram, in the Court of the Munsif and Judicial Magistrate, Merta, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 147. 302/149, 307/149, 394. 447 and 323/149, I. P. C. against all of them, to which they pleaded not guilty and faced the trial. Appellant Bharta Ram admitted his presence on the spot but denied that he landed blows to any of the victims. The stand taken by them was that of peaceful by-stander. The remaining seven accused denied their presence on the spot and stated that they were falsely implicated due to their enmity with the complainant party. In support of its case the prosecution examined 19 witnesses and filed some documents In defence the accused examined one witness. On the conclusion of trial the learned Sessions Judge found no incriminating material against Bhinyaram, Ramsukh and Hemaram. They were consequently acquitted of the offences they were charged with. The prosecution case was taken substantially true and proved against the five appellants. They were, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction and sentence, the 5 appellants have come up in appeal.

(3.)WE have heard Mr. M. R. Bhansali and Shri M. M. Singhvi. learned counsel for the appellants and the learned Public Prosecutor Shri Niyazuddin Khan for the State. WE have also gone through the case file carefully.
Before proceeding further, we may point out that the cause of death of the two victims Baksaram and Surjaram was not challenged before us by the learned counsel. So also the number and nature of injures sustained by the four surviving injured victims. Smt. Sohini, Smt. Kamla, Smt. Maluri and Hardeen were also not challenged before us. We have also carefully gone through the testimony of PW 5 Dr. Tulsaram and find no good and cogent reasons to distrust bis opinion about the cause of death of the victims and the number and nature of injuries sustained by the aforesaid four surviving persons. It, therefore, stands established that the death of Baksaram and Surjaram was homicidal. The aforesaid surviving victims sustained multiple injuries in the occurrence.

The prosecution has examined four eye witnesses of the occurrence, namely PW 6 Hardeen, PW 7 Smt. Maluri, PW 8 Smt. Kamla and PW 9 Smt. Sohini. These four witnesses are also injured persons who received injuries in the very incident. As stated at the very out-set they are the close relatives being the son, widows and daughter of the two deceased victims. The learned Sessions Judge has accepted their testimony as true and reliable against the five appellants and convicted them thereon.