RASHID Vs. STATE

JUDGEMENT

(1.) :- This appeal is directed against the judgment dated 21-12-1981 passed by the learned Sessions Judge, Jodhpur, convicting the second appellant Sabir Hussain of the offence under Section 304, Part II, IPC and sentencing him to five years' rigorous imprisonment and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo six months' R.I. Accused appellant Rashid has been convicted for the offence under Section 323, IPC and a fine of Rs. 500/- and in default of payment of fine to undergo three months' simple imprisonment.

(2.) The prosecution story is that second appellant Sabir Hussain and his son i.e. first appellant Rashid were the Jamandar of Bhatta Nos. 5 and 6 respectively situated in village Barna. Deceased Ogad Ram was an employee of Bhatta No. 5 and was doing the work of Mistri. On 10-4-1981, there was a paucity of labour and, as such, accused Sabir asked the deceased to send his labours at Bhatta No. 6 but he refused to do so. Thereafter, Sabir asked the deceased to leave the work and go home and, accordingly, deceased leaving the work went to his quarter. The deceased came back to the office near the Kanta, where accused persons came and gave him beating. It is further alleged that the accused Sabir Hussain caught the deceased Ogad Ram by neck and gave him beating. It is further alleged that Rashid also gave beating to Ogad Ram by hands and fists. Ogad Ram was thereafter taken to the quarter, where his condition sharply deteriorated and, therefore, he was immediately taken to hospital by car at Bilara for treatment. However, he died on the way. The dead body of Ogad Ram was again brought to village Barna. The information of the incident was given by the maternal uncle of Ogad Ram namely Bohra Ram. On the basis of this information, a case was registered for the offence under Section 302/34, IPC against the appellants. The autopsy was conducted by PW 8 Dr. K.N. Mathur. He noticed injuries on the neck and other parts of the dead body. In his opinion, such injuries could be caused if the neck is pressed with great force. After usual investigation, police submitted a challan against the appellants for the offence under Section 302 and 302/34, IPC. The appellants were charged for the offences under Sections 302 and 304/34, IPC. They denied the guilt and claimed trial. The learned trial Court found that it was a case of culpable homicide and not amounting to murder and, as such, convicted second appellant for the offence under Section 304, Part II, IPC and sentenced him as stated above. The first appellant has been convicted for the offence under Section 323, IPC.

(3.) Assailing the judgment, it is contended by Mr. N.M. Lodha learned counsel appearing for the appellants that the entire prosecution story is unbelievable. It is submitted that while according to the prosecution, the incident took place during 11 a.m. to 1 p.m. whereas the doctor in his statement has stated as Ogad Ram must have died three to four hours prior to the time of post mortem. It may be stated that autopsy was conducted on the next day i.e. 11-4-1981 at about 7 a.m. Thus, it is argued by Mr. Lodha that Ogad Ram must not have died on account of the incident, which took place on 10-4-1981 during the period 11 a.m. to 1 p.m. He has pointed out that another incident had taken place in the evening on which a case was also registered as "State v. Bohra Ram". It is submitted that this part of the story has been concealed by the prosecution. It is also submitted that prosecution story does not tally with the post mortem report. Mr. Lodha further submitted that it was only Dr. Verma, who first attended Ogad Ram, and he could have said about his condition but he has deliberately not been produced by the prosecution.