S. S. BYAS, J. -
(1.)ACCUSED Lal Chand, Manphool, Net Ram and Bhadar were convicted under sections 302 and 342, I P. C. and each was sentenced to imprisonment for life on the first and three months' rigorous imprisonment on the second count by the learned Additional Sessions Judge (1), Hanumangarh vide his judgment dated 21. 9. 78. Both the sentences were directed to run concurrently. They have come-up in appeal to challenge their conviction and sentence.
(2.)SUCCINCTLY stated, the prosecution case is that deceased-victim Birbal Jat was the real nephew (brother's son) of accused Lal Chand. Accused Manphool and Netram are the sons of accused Lal Chand. Accused Bhadar is also their near relative. They all are residents of village Dhilkijatan P. S. Nohar district Ganganagar. Birbal had two daughters Kamla and P. W, 2 Krishna. Accused Lal Chand wanted that they should be married to the brothers-in-law of his another son Nathu. Birbal did not carry out his wishes and got his daughters married to some other persons in village Rampuriya. This sowed the seeds of discordance between Birbal and the accused persons. The accused started harbouring the ill-will against Birbal. At about 8. 00 or 9. 00 A. M. on 22. 4. 77, Birbal was going to his field. When he reached near the Nohara of Manphool, accused Netram and Bhadar came from the opposite direction with Lathies in their hands. They challenged Birbal and cried aloud that they would finish him. Birbal, apprehending danger, on towards South in a street. Accused Manphool and Lal Chand came out from their house with Lathies in their hands. They encircled Birbal Meanwhile accused Netram and Bhadar also reached there. All the four accused opened an on-slaught on Birbal and struck blows to him with their Lathies. Birbal fell down out-side the house of Ramswaroop, as shown in site plan Ex. P. 13. Accused continued to strike blows to him. Smt. Krishna (PW 2) who was going to throw rubbish, raised cries PW 3 Surjaram, PW 4 Inder Raj, PW 6 Chhelu Ram, Hansraj and Ram Swaroop cams there. They tried to intervene. PW 4 Inder Raj, in his efforts to protect the victim, received an injury on his person. The accused dragged Birbai and took him to their house. There they dropped him in a roofless Chhapper, shown by mark 'b' in site plan Ex. P. 1. Birbal's mother Smt. Mathuri (PW 6) and his wife Smt. Bhuri, on hearing the noise, reached there. Mst. Mathuri tried to protect her son but she too was not spared. She also sustained some injuries. The accused continued to strike blows to Birbai there also in the roofless Chhapper. Thereafter they dispersed away taking their lathies with them. PW3 Surjaram left the place, reached Police Station Nohar at about 11. 15 A. M. and verbally lodged report Ex. P. 8 of the occurrence. The police registered a case under sections 307/34 and 342, I. P. C. and proceeded with investigation. Birbai become unconscious on the spot and there was profuse bleeding from his wounds. He was taken to his house by Inderraj, Chhaluram and others. The Investigating Officer Umed Singh (PW 7) arrived on the spot on the same day and sent Birbai to Nohar Hospital, where his injuries were examined. The Investigating Officer inspected the site and seized the blood-stained soil. The injuries of Bitbal were examined at Nohar Hospital and from there he was taken to Bhadra where he was admitted for treatment in the Government Hospital. His injuries were again examined at about 8. 10 P. M. by PW 1 Dr. J. P. Swami, the then Medical Officer Incharge, Government Hospital, Bhadra. He found the following injuries on the person of Birbai : - 1. One lacerated wound 3-/12" x 1/4" skin and muscle deep. Bone is exposed on the scalp on right fron to parietal bone obliquely. 2. One lacerated wound 3-1/2" x 1/4" skin and muscle deep, bone is exposed on the scalp, on left fronto parietal region horizontal. 3. One lacerated wound 2" x 1/2" cartilage exposed left pinna from near the helix upto the lobule. 4. One big bruise with swelling 4" x 2" superficial with swelling on the dorsum of left wrist with deformity. 5. One superficial abrasion 1/4" x 1/4" on the left malareminance. 6. One bruise with abrasion superficial margins not well defined on the left shin on the centre. 7. Four bruises each 6" to 8" x 1/2" superficial crossing each other on the back across the vertebra at the level of the r/12 to L/l. 8. One bruise superficial margins not well defined on the dorsum of right wrist. 9. One bruise with abrasion 4" x 1/2" superficial on left gluteal region posterior aspect 4" below posterior iliac supine. 10. One bruise with abrasion 2" x 1/2" superficial left gluteal region oblique. 11. One bruise with abrasion 2" x 3/4" superficial on right thigh poste-rial lateral on the upper l/3rd. Injuries No. 1,2,3 and 4 were classified as grievous and the remaining as simple. The injuries were stated to have been caused by some blunt object like lathi. The duration of the injuries was held to be within 12 hours. The injury report prepared by Dr. Swami is Ex P. 1. He also took the skiagram of parietal region of the victim's body and found both parietal bones, temporal and occipital bones fractured. The x-ray plates are Ex. P. 2 and Ex. P. 3. Despite medical help. Birbai did not survive and succumbed to the injuries at about 2 10 P. M. on 23. 4. 77 in the hospital. The police added section 302, I. P. C. during investigation. The post-mortem examination of the victim's deadbody was conducted at about 5. 30 P. M. on the same day by the same Doctor Swami (PW 1 ). He noticed the following injuries on the victim's deadbody: - External as stated in injury report Ex. P. 1. Internal Cranium and spinal cord - there was big haemotoma below the fronto-occipital muscle and below the skin of the scalp. The scalp bone is fractured starting from left temporal going across the interparietal junction and then to right temporal and then to the left occipital bone with depression. The skull is fractured on the top not at the base. Membrance were congested and having areas of big heamorrhages Brain lacerated at both the parietal lobes near the great centrat longitudel sinus the left and right occipital lobes were also lacerated with the base with big haemorrhagic areas and fluid blood. Thorax- Both the lungs were pale and on cutting air comes out. Heart-right side full of fluid blood, left side empty. Large vessels- full of fluid blood. Muscles- bones and joints-the epicranium and fronto occipital is muscle were torn badly alongwith the muscles of the dorsum of left wrist and band with great.-haemotomas. The scalp bones were fractured at the top with depressions. The metacarpal of 1st and 2nd fingers were fractured at the shaft in the centre with discloaation of metacarporal phalangeal joint of the same fingers on left side.
Dr. Swami was of the opinion that the cause of death was brain laceration, haemorrhage brain compression, consequent shock, respiratory and circulatory failure due to neuronal injury. The postmortem examination report prepared by him is Ex. P. 4. The accused persons were arrested and in consequence of the informations furnished by some, lathies were recovered, some of which no chemical examination-were found stained with human blood. The blood-stained clothes of the deceased-victim were seized and sealed. Human blood was detected on them on Chemical Examination. It may be mentioned that accused Lal Chand was arrested on 25-4-77. At the time of his arrest a scratch was found on his left ankle below the knee. After when the investigation was over, the police presented a challan against the accused persons in the Court of Munsif and Judicial Magistrate, Nohar, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 302/34 and 342, I. P. C. against all the four accused persons, to which they pleaded not guilty and faced the trial. Accused Lal Chand, in his statement under section 313, Cr. P. C, stated that he was sitting at his house and the deceased-victim Birbal came there with a lathi in his hand. Birbal struck him five or seven blows with his lathi. Seeing this, his son Nathu (not an accused) came with a lathi and struck blows with it to Birbal in order to ward-off further beating. The remaining three accused denied their presence on the spot. They stated that they have been falsely roped in. During trail, the prosecution examined eight witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge found no merit in the defence put forward by the accused-appellants. The charge against them were held duly proved. They were consequently convicted and sentenced as mentioned at the very out-set. Hence this appeal.
We have heard Shri B. R. Purohit, learned counsel for the accused-appellants and the learned Public Prosecutor Shri R. P. Dave assisted by Shri MX. Garg, counsel for the complainant. We have also gone through the case file carefully.
In assailing the conviction of the appellants, the learned counsel for the appellants raised various grounds, which for the sake of convenience may be classified as under: - 1. The investigation was unauthorised; 2. the testimony of PW 2 Krishna, PW 3 Surjan Ram and PW 6 Smt. Mathuri has been wrongly relied upon to convict the accused persons. Their evidence is discrepant, self contradictory and inconsistent. They should not be taken to be the witnesses of truth in view of the fact that PW 4 Inder Raj and PW 5 Chhelu Ram have lent no support to the prosecution and turned hostile. The prosecution has also withheld independent eye witnesses; 3. the right of private defence put forward by accused Lal Chand has been wrongly rejected; and 4. even if the prosecution case is taken as true, the offence made out would not be covered by section 302, I P. C. The offence made out is that under section 325, or utmost under section 304 Part II, I. P. C.
It would be proper to take up these contentions at seriatim.
(3.)IT was argued by Mr. Purohit that the investigation was made by PW 7 Umedsingh who was not posted at Police Station, Nohar The case was registered at Police Station, Nohar Shri Umedsingh was working as Sub-Inspector in Reserve Police Lines, Ganganagar. He had, therefore, no jurisdica-tion to carry out the investigation in the instant case. Since the investigation was carried out by an unauthorised person, the whole trial stands vitiated. We find no force in the contention. IT is true that PW 7 Umedsingh was not the Station House Officer of Police Station, Nohar on 22. 4. 77. He was then posted as Sub Inspector in Reserve Police Lines at district Headquarters Ganganagar. He stated that he came from Ganganagar on 22 4. 77 in connection with the investigation of a criminal case No. 15/77 under the direction of the District Superintendent of Police. At Nohar, he was directed by Circle Officer of Police to make investigation in the instant case also. He, therefore, took up the investigation in his hand.
Under Section 156 (2), Cr. P. C. occurring in Chapter XII relating to the Powers of the Police Officer for Investigation, no proceeding of a police officer can be called in question at any stage on the ground that the case was one which such officer was not empowered under this section to investigate. We may point out that PW 7 Umedsingh was posted in Ganganagar District and Nohar is a part of it. As such Umedsingh being posted in District Ganganagar was competent to make investigation at any place within the district. He carried out the investigation under the orders of the Circle Officer of Police, Nohar. As such the investigation does not become bad in law. The investigation is not illegal and does not stand vitiated. No authority was brought to our knowledge by the learned counsel that the investigation of the nature in the instant case vitiates the trial and the accused should be acquitted on that count alone. The first contention, thus, has no substance.
It was next argued that the evidence of PW 2 Mst. Krishna. PW 3 Surja-ram, PW 4 Inder Raj, PW 5 Chheluram and PW 6 Smt. Mathuri was wrongly relied upon by the court below in convicting the appellants It was argued that none of them is a witness of truth and their testimony is wholly insufficient to warrant the conviction of the appellants. Now, each of these witnesses has claimed to have seen the occurrence.