Decided on March 06,1984

Bhanwariya Appellant


S.S.BYAS, J. - (1.)THESE are two appeals arising out of the judgment of the learned Sessions Judge, Merta dated August 2, 1979. By the said judgment the learned Sessions Judge convicted the accused Bhanwariya under Sections 302 and 458, IPC and sentenced him to imprisonment for life on the first and three years rigorous imprisonment under the second count. The accused has come -up in appeal to challenge his conviction and sentence while the State has come up in appeal for enhancement of the sentence on, the ground that the accused is a previous convict under Section 304 Part II, IPC.
(2.)IN brief, the prosecution case is that the deceased -victim Ghasi and the accused are relatives inter se being the descendents of a common grandfather. The relations between the two families were not happy. On the contrary they had become extremely strained. The accused had earlier caused the death of the victim's mother, for which he was tried and, convicted under Section 304, Part II, IPC. At about 10.00 P.M. on September 30 1978,the deceased victim Ghasi was sleeping in the Chausala of his house in village Dharu Tehsil Nagaur. PW 2 Smt. Gopuri, PW 3 Smt. Sourti, PW 7 Tikuram, PW 8 Mangal and PW 9 Laxman Ram were also sleeping nearby in the court -yard of the same house. The accused all of a sudden secretly came with a Jambhiya in his hand and thrust it in the abdomen of Ghasi. Ghasi sustained a wound and there was profuse bleeding from it. He raised cries, hearing which the above -named persons got awoke. They saw the accused running away from the place of occurrence. Some other persons of the village also assembled there. PW 4 Damaram who is a Sarpanch of the village Panchayat, prepared written report Ex P 2 and sent it with PW 7 Tikuram to Police Station, Khinvsar. Tikuram reached there at about 1.30 A.M. in the same night and presented it. The police registered a case under Sections 307 and 448, IPC against the accused and proceeded with investigation. Before the police could arrive on the spot, Ghasi succumbed to the injury. Section 302 IPC was, therefore, added during, investigation. The Station House Officer Kalu Ram arrived on the scene of occurrence on October 1, 1978 and prepared the inquest report of the victim's dead body. He also inspected the site and seized the blood -stained soil from then. The Gudra, Rali, Dhoti etc. which were found bloodstained were also seized and sealed. The post mortem examination of the victim's dead body was conducted on October 1, 1978 by PW 1 Dr. P.P. Gandhi, the then Medical Jurist, Government Hospital, Nagaur. He noticed the following injury:
Incised wound 4' x 1.5' x whole thickness of anterior abdominal wall placed on the epigastric and upper umbilical regions to the left of mid plane running obliquely from above downward and laterally. Whole of gut and omentum were seen coming out of it.
In the opinion of Dr. Gandhi, the cause of death was internal haemorrhage due to rupture of liver and gastric and intestinal (transverse colon) perforations due to injury with a sharp weapon. The post mortem examination report prepared by his is Ex. P1. The accused was arrested and in consequence of the information furnished by him Jambhiya was recovered. On chemical examination blood was found on it. Kana Ram, the father of the accused, was also arrested as it transpired daring investigation that he was standing a little distance away from the site of the occurrence. On the completion of investigation the police presented a challan against the accused appellant and his father Kanaram in the Court of Judicial Magistrate, Nagaur who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charges under Sections 458 and 302, against the accused -appellant and under Sections 458 and 302/34, IPC against accused Kanaram. Both the accused denied the guilt and claimed to be tried. In support of its case the prosecution examined ten witnesses and filed some documents. In defence the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found no incriminating material against accused Kanaram. He was consequently acquitted. The learned Sessions Judge held the changes duly proved against the accused -appellant Bhanwariya. He was consequently convicted and sentenced as mentioned at the very out set. Hence this appeal by the accused. Aggrieved with the quantum of sentence imposed on the accused -appellant the State has come -up in appeal for enhancement.
We have heard Shri Doonga Singh, learned Counsel for the accused appellant and the learned Public Prosecutor Shri Niyazuddin Khan. We have also gone through the case file carefully.

(3.)IT would be proper and convenient to take up the appeal of accused Bhanwariya first. Learned Counsel for the accused did not challenge the cause of death as stated by Dr. P.P. Gandhi (PW 1). We have also gone through his testimony and find no good or cogent reasons to distrust his opinion about the cause of death of Ghasi. It may be noticed that according to Dr. Gandhi, the injury found on the victim's body was Sufficient in the ordinary course of nature to cause death. This fact will 'have to be borne in mind while deciding the nature of offence.

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