N.K. JAIN, J. - (1.) BOTH the appeals are directed against the impugned judgment dated 18.12.1981 passed by the Additional Sessions Judge, Kishangarh Bas, Camp Behrod, in Sessions Case No. 46/1980, therefore, they are being disposed of by this common judgment.
(2.) BRIEFLY stated the facts of the case are that on 05.06.1980 an oral report was lodged by Rajpal (PW1) at Police Station Mandhan, District Alwar, which was entered at S.No. 134 in Roznamcha (Ex.P12). It was alleged in the report that he is the resident of Mauza Basai Bhopal Singh. On 04.06.1980 at about 10.00 PM, his Uncle Omprakash asked as to who had removed the stones, then he told that they have removed as they belong to them and they have also won the case. Thereafter Omprakash told that he had given the same to Ramkumar. Omprakash and Ramkumar were standing near the wall of his Uncle and his Bhabhi (Sister-in-law) Rajbala, his mother Gindori, his Grandmother Sharwan and his Aunt Kaushalya started quarreling. His mother Gindori was beaten by Omprakash, Kaushalya, Sharwan and Bhani by fists and kicks. He was also beaten by all the four persons by stones and lathi. After hearing hue and cry, number of villagers came at the spot. On the basis of above report, the police registered a case under Section 323 IPC. Smt. Gindori was medically examined on 05.06.1980 by PW6 Suresh Chandra Meena and her injury report (Ex.P10) was prepared, wherein the following injuries were mentioned:- (1) Abrasion with swelling 4cmX1cm on lower part of the chest right side. (2) Patient also complaining of pain abdomen, but no sign of external injury. Abdomen is distended and tender also giving h/o not passing flatus. Smt. Gindori died on 07.06.1980 at 07.45 PM and her post-mortem was conducted on 08.06.1980 at 08.30 AM. Post-mortem report is Ex.P7 wherein it was observed that patient was examined by the Medical Officer, Mandhan, who referred the case here for X-ray and treatment and brought by the police of Police Station Mandhan on 06.06.1980. She was very serious and thus expired in the hospital on 07.06.1980. As per post-mortem report (Ex.P7), the following external and internal injuries were found:- External injuries 1. Abrasion with scab 5cm.x1/2 cm. On right side chest lower ribs anteriorly 14 cm. Below nipple. Internal injuries (1) Peritoneal cavity contains foulsmelling discharge of feculent matter with adhesions: the loops are covered with flacks. There is big perforation of small gut 1-3/4 cm.x 1-3/4 cm. in size and right side upper part of abdomen. As per the opinion of the doctor, the cause of death was as under:- In my opinion death occurred due to blunt injury abdomen with perforation of gut + peritoneum with septicemia, ante-mortem in nature. After death of Smt. Gindori, chalked FIR No.21 was registered on 08.06.1980 under Section 302 IPC at 03.30 PM. After completion of investigation, the police filed a charge-sheet against two accused persons, namely, Omprakash and Smt. Kaushalya W/o Omprakash. The learned Judicial Magistrate committed the case to the Court of Sessions Judge, Alwar, who transferred the case for trial to the Court of Additional Sessions Judge, Kishangarh Bas, Camp Behrod.
(3.) LEARNED trial Court framed charge against accused Omprakash under Sections 302 and 323 IPC and against accused Smt. Kaushalya under Section 302 or in the alternative under Section 302 read with Section 34 and 323 IPC. The accused persons denied the charges and claimed trial. The prosecution in support of its case examined PW1 Rajpal, PW2 Rajbala, PW3 Mst. Kela, PW4 Amar Singh, PW5 Dr. P.S. Agarwal, PW6 Dr. Suresh Chandra Meena, PW7 Munnalal Srivastava, PW8 Gordhan Singh, PW9 Rawat Singh, PW10 Ramkumar Singh, PW11 Jagdish Prasad, PW12 Radhey Shyam, A.S.I., PW13 Dhan Singh, PW14 Ramniwasi and PW15 Deenaram Khatana, S.H.O.. Thereafter the statements of the accused persons were recorded under Section 313 Cr.P.C., wherein a plea of alibi in respect of accused Omprakash was taken. In defence, the statements of DW1 Dr. Suresh Chandra Meena, DW2 Shaitan Singh and DW3 Kaluram were recorded. The learned trial Court after considering the submissions of the parties and examining the record of the case, acquitted both the accused persons from the charge under Sections 302 and 302/34 IPC. Accused Mst. Kaushalya was also acquitted from charge under Section 323 IPC. However accused Omprakash was convicted and sentenced under Section 323 IPC to one year's rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months' additional rigorous imprisonment. Being aggrieved with the same, accused Omprakash preferred D.B. Criminal Appeal No. 19/1982 and the State preferred D.B. Criminal Appeal No. 157/1983. ;