L.S.MEHTA, J. -
(1.)THIS appeal emerges from the judgment of Shri B.K.D, Badge, the then Additional Sessions Judge No, 1, Jodhpur, dated July 20, 1966, convicting the accused Bhikla, Roopla, Lachmaina and Kishnia, sons of Bhera, Jat, residents of Abu, under Section 302, read with Section 34 IPC, and sentencing them each to imprisonment for life.
(2.)THE prosecution story is like this. Maharaj Bhaktiram, a Guru of the Jat community, lived in the village Ahu, Police Station, Bhojasar. His servant, P.W. 4. Nahera Ram also resided with him. The accused Lachmania was alleged to have kept his own sister, as his mistress. This act of Lachmanina enraged the Jat community. Subsequently, the Jats of the surrounding villages assembled together, Maharaj Bhaktiram also praticipated in the deliberation of the community meeting. The Jats eventually excommunicated Lachmania along with his three brothers, Bhikla, Roopla, and Kishnia. For this reason the accused persons began to bear grudge against Maharaj Bhaktiram. On October 12, 1965, Bhaktiram went along with his camel to his agricultural land, known as Sunaronwala field, for fetching Bajra stalks. When he was returning with his camel, loaded with Bajra stalks, he passed through the land of the accused. There he was confronted defiantly by the accused. They all administered severe beating to him with sticks. Amana Ram s/o Asu P.W. 6, and Amana Ram, s/o Kistura P.W. 8, witnessed the occurrence. Amana Ram P.W. 6 beseeched the accused not to beat the Maharaj Thereupon Bhikla told him that the Maharaj would not be left alive and that if he intervened, he too would meet the same fate. Amana Ram, P.W. 6, then informed of this happening to Bhera Ram, P.W. 9 the 'Chela' of the Maharaj. Dana Ram was also apprised of the whole incident. Bhera Ram went to the spot. He saw the accused throwing earth on the nose of the Maharaj to find out whether he was still alive and perceiving that there was same life left in him, the accused again belaboured him relentlessly with sticks till he breathed his last. P.W. 1 Dana Ram approached the Police Station, Bhojasar and lodged first information report Ex. P, on October 13, 1965 at 9 A.M. In the meantime accused Bhikla and Roopla went to the 'Dhani' of the Maharaj and entrusted Maharaj's camel to Nahera Ram. P.W. 4 stateting that the Maharaj had already been uprooted and was lying in the field and that he should be brought home in a cart. In the course of investigation, P.W. 12 Devilal, S.H.O. Bhojasar, went to the spot and prepared site inspection memo Ex. P.5, site plan Ex. P.6 description memo of the corpse Ex. P.7, inquest report Ex. P.8, seizure memo of blood stained clothes and shoes of the deceased Ex. P.10. Accused Bhika was arrested on October 13, 1965. A blood stained 'Bandi' was seized from his possession vide Ex. P.11. The rest of the accused person were arrested on October 16, 1965. In the course of investigation Bhika furnished information in regard to his concealing the weapon of the offence. The information was reduced into writing and is marked Ex. P. 17. In consequence of this information the police recovered a blood stained lathi at the instance of the accused Bhika memo Ex. P. 12. Both the 'Bandi' and the lathi were examined by the Chemical Examiner and the Serologist. The report of the Chemical Examiner was that both the articles were positive for blood; vide Ex. P.23. According to the Serologist, the two articles were stained with human blood vide Ex. P.24. Autopsy of the dead body of Bhaktiram was conducted by Dr. Ram Narain Parihar, Medical Officer, Phalodi. The following injuries wefe noticed on his person:
1.Contusion 1' x3/4 on front of middle of head -Simple and by blunt weapon. 2. Contusion 11/2' x 1' on left temporal bone with fracture of the temporal bone - -Grievous and by blunt weapon. 3. Lacerated wound 1' x1/2' on left elbow outer part. Simple and by blunt weapon. 4. Contusion 2' x1' on outer side of left arm. Simple and by blunt weapon. 5. Lacerated wound 1/2'x1/4'x skin deep on inner side of left ring finger and a contusion on little finger. Simple and by blunt weapon. 6. Lacerated wound 1/2'x1/4 x skin deep on web of the left index finger. Simple and by blunt weapon. 7. Five contusions 1/2'x1/4', 1/2'x1/2', 1/2'x1/4' and 1/4'x1/4' on dorsum of hand left. Simple and by blunt weapon. 8. Lacerated wound 2/3' x1/2' on medial side of right index finger with contusion on the middle finger. Simple and by blunt weapon. 9. Two contusions 11/2'x3/4' and 1 x1/2' on dorsum of the right forearm. Simple and by blunt weapon. 10. Two contusions 1/4'x1/6' and 1/6'x1/3' on back of right elbow. Simple and by blunt weapon. 11. Contusion on front and outer side of right elbow 1' x3/4' x bone deep with blunt weapon. 12. Lacerated wound 1'x3/4' x bone deep with compound fracture of the right tibia on front of upper 1/3rd of the right leg. Grievous and by blunt weapon. 13. Lacerated wound 1'x3/4'x1/2 on outer side of the left knee. Simple and by blunt weapon. 14. Contusion 1' x 1' no outer side of left leg obliquely. Simple and by blunt weapon. 15. Two laceratad wounds 3/4'x1/4'x1/4. and 1/2'x1/4 x1/5' on front of left leg. Simple and caused by blunt weapon. 16. Three contusions on back of left hip in the middle simple and by blunt weapon. 17. Contusion 4'x1' no back of right hip. Simple and blunt weapon. 18. Two contusions 3'x1' and 2x1' on back of the body on the ribs. Simple and by blunt weapon.
According to the Doctor, the above injuries were caused by blunt objects, External injury No. 2, the Doctor adds, was individually sufficient to cause the death of the Maharaj. The Doctor is further of the opinion that all the injuries together could also result in the death. After the investigation was concluded, the police put up a challan in the court of the First Class Magistrate, Phalodi. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207 -A, Cr. P.C. and committed all the four accused to the court of Sections Judge, Jodhpur, to stand trial under Section 302, read with Section 34, I.P.C. The case was subsequently transferred for disposal to the court of Additional Sessions Judge No. 1, Jodhpur. The accused pleaded not guilty to the charge under Section 302/34 I.P.C. In support of its case the prosecution examined 12 witnesses. In their statements recorded under Section 342, Cr. P.C, the accused denied to have committed any offence. In their defence they did not produce any evidence. Eventually the learned Additional Sessions Judge No. 1, Jodhpur, convicted and sentenced the accused, as aforesaid. Hence this appeal.
Contention of learned Counsel for the accused is two fold. His first contention is that no offence under Section 302, read with Section 34. I.P.C, has been brought home to the accused Roopla, Lachmania and Kishnia. According to him, P.W. 8 Amana Ram, son of Kistura, was not present on the spot and P.W. 6 Amana Ram, son of Asu, could not be said to be wholly reliable. The trial court, the counsel adds, went wrong in convicting the above three accused persons on the basis of the testimony of the above named two witnesses. The next point raised by him is that the trying Judge could not have convicted Bhikla under Section 302 read with Section 34, I.P.C. He ought to have been acquitted or in the alternative, if his statement recorded by the committing court is taken in vidence in accordance with Section 287, Cr. P.C., he could have been convicted either under Section 304, Part I or under Section 325, I.P.C. and not under Section 302 read with Section 34, I.P.C. He referred to an unreported decision of this Court, Nathu v. State, D.B. Criminal Appeal No. 122 of 1958. Learned Deputy Government Advocate, on the other hand, by and large supported the judgment of the trial court.
(3.)WE first take up the case of Roopla, Lachmania and Kishnia. First information report Ex. P.1 was filed by Dana Ram P.W. 1 on October 13, 1965 at 9 a.m. On interrogation made by the Police, Dana Ram first named only Bhikla etc. as had been disclosed to him by Amana, son of Asu, and not other accused persons. Amania had informed Bhera Ram, P.W. 9, of the happening and not Dana Ram. P.W. 1 Amana Ram, P.W. 6, has categorically stated that he gave information to Bhera Ram and not to anybody else. Both Bhera Ram and Dana Ram have pointedly stated that they were not the authors of the first information report and that it was written by one Vaidhyaraj. Bhere Ram has further said that he did not give its contents to the Vaidhyaraj. The alleged scribe of the report Vaidhyaraj has not been examined by the prosecution. Danaram has also stated that he was at a distance of about 100 paundas from the place where the report was got written. It is thus not clear as to who was the author of the first information report. No adverse inference, therefore, can be drawn against the accused Roopla, Lachmania, and Kishnia on the basis of the contents of Ex. P.1. It may also be mentioned that the object of the provisions as to first information report is to obtain early information of the alleged criminal activities, to record the circumstances before there is time to be forgoten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so, vide Emperor v. Khawaja Nazir Ahmad A.I.R. 1945 P.C. 18. In this case Ex. P.1 being the earliest version of the the event is not of very material help to the prosecution in so far as the involvement of the accused Roopla, Lachmania, and Kishnia in the crime is concerned.