NAWALKISHORE, C.J. - (1.) THE accused Dhanna s/o Jeevraj and Jawana s/o Lakha were tried by the learned Sessions Judge, Bikaner, for causing the death of Dhanna s/o Pema under Section 302/34, Penal Code, and convicted and sentenced to rigorous imprisonment for life each.
(2.) THIS appeal has been preferred by them against the above order of the learned Sessions Judge and argued on their behalf by Mr. J. G. Sethi, Bar -at -law, of the Punjab High Court at considerable length and Mr. Mansharam, the learned Government Advocate has addressed us on behalf of the State. According to the prosecution story, the two accused and a third person, namely, Phoola, Biahnois by caste and residents of neighbouring villages, attacked the deceased Dhamia on the night between the 22nd and 23rd of July 1949 while he was asleep with his son Rajaram in his field which is situate at a distance of about three milea from the village The motive for this attack is stated to be the strained relations between the parties. It is alleged that Jawana and Phoola accused owed Rs. 1400 to the deceased and on their refusing to pay, four or five persons interceded but the accused put forward a cross claim against the deceased to the tune of Rs. 1100 alleged to have bean taken by him from the wife of Jawana and stated that the amount due from them to the deceased will be liquidated as soon as the latter paid his dues. The deceased denied having borrowed any money and thereupon, the accused also refused to pay. The result was that the deceased sued Jawana and Phoola and Dhanna accused appeared as Jawana's witnessea, and the suit was dismissed. Jawana accused prosecuted the deceased under Section 406, Penal Code, and although Dhanna and one Manphool (it is not known whether he is the same person as Phoola accused) appeared as hia witnesses. This prosecution failed and the deceased was acquitted on 13 -7 -1919, that is, 9 days before the occurrence. While the factum of act criminal case is fully established on the record as a copy of the judgment has been produced, the same cannot be said about the civil suit which is alleged to have been instituted by the deceased. A copy of the judgment has not been produced and P. W. 4 chaoga, who deposed to it, admitted that he had only heard about it. P. W. 1, Laloo, referred to this litigation in the first information report and also in his statement on oath but admitted that he had no personal knowledge and had only heard about it, P. W. chhoga also stated that the accused Dhanna and the deceased had fought with each other and Laloo also mentioned in the first information report that the deceased had beaten Dhanna accused five or six days before the occurrence. Beyond admitting that he had made the first information report, he did not depose to this particular matter in his statement. Be that as it may, the prosecution case is that on account of the civil and criminal litigation, the relations between the accued and the deceased were fan from happy and that accordingly, actuated by feelings of revenge, the accused joined hands for the purpose of attacking the deceased. It was a pitch dark night and rain had fallen a few days before. It is stated that sometime during the day, on 22 -7 -1349, the deceased and his son Rajaram, aged 12 years, had gone to the field for the purpose of ploughing it. After finishing with the ploughing, both of them decided to spend the night in the field . Accordingly, after taking their food, they slept on the same cot. At a distance of about 100 Poandas, there is another field belonging to Amiohand who had also gone there in order to plough it and p. w. 3 Ramchand had joined for the purpose of helping him. At about midnight, Dhanna and Jawana, armed with litthia and Phoola armed with a Sela, went to the field of the deceased and inflicted a large number of injuries on his person. It is alleged that as soon as the accused persons reached the spot, they felled both the deceased and his son from the cot and began to be labour the deceased. rajaram began of cry and thereby attracted p. w. 3 Ramchand and Amichand to the spot. They saw that all the three accused were giving blows to the deceased and inflicting injuries on his person and Rajaram was standing nearby and weeping. These parsons reprimanded the accused and thereafter they left. The deceased died at daybreak, According to the evidence, his hands and feet were fractured and he was bleeding and his death was due to shock and haemorrhage caused by multiple grievous injuries. Rajaram was sent to the village and he informed Laloo and Harbhaj of what had happened. P. W. 1 Laloo, Harbhaj and a number of other persons visited the field and after confirming the information about the murder of Dhanna, Laloo went ahead to the Police Station for the purpose of lodging the report. The Thana is about nine miles from the field and this distance was covered on camel back. The first information report, Ex. p -1, which is a detailed document was lodged at 12 noon on 23 -7 -1949. Investigation was taken in hand and the dead body was sent for postmortem which was conducted by Dr. Jogendra Singh on 24 -7 -1949 at 5 -45 P. M. The deceased was a healthy person and 30 years of age and according to the post -mortem report, had received 22 injuries in various parts of the body with a sharp edged weapon, while two injuries had been caused with a blunt weapon. In the opinion of the Doctor, these two injuries could also be caused by a fall on a hard substance. At the time of the post -mortem, decomposition had set in and since there was no injury on a vital part of the body, in the opinion of the doctor, the deceased might have escaped death if he had bean treated properly. The post - mortem report, Ex. P -6, showed the following injuries: (1) Penetrating wound l' x 1/2' at the acute angle of the right eyebrow reaching up to the eye -ball penetrating it resulting in the collapse of the eye. (2) Penetrating wound 1/4' x 1/4' just at the upper been of the sternum reaching up to the bone. (3) Penetrating wound 1/2' x 1/2' x 1/2' on the dorsum of the left hand in its middle. (4) Penetrating wound 13/4' x 1/2' on the left arm reaching up to the bone resulting in its fracture in its middle. (5) Penetrating wound 3/4' x 1/2' at the back of the left elbow reaching up to the bone. (6) Penetrating wounds four in numbers quite near to each other about 3/4' x 1/4' each in the front of the left leg resulting in communicated fracture of both bones left leg near its middle. (7) Penetrating wound 1/4' x 1/4' just below the left knee reaching up to the bone. (8) Penetrating wound 1/2' x 1/2' on the right forearm on the media dorsal aspect resulting in fracture of both bones in its middle. (9) Penetrating wounds eleven in number varying from 1/4' x 1,1/2' x 1/4' in the front, middle and lateral aspect of the right leg resulting in comminuted fracture of both bones in their middle (10) Right side chest lower part in mid axillary region some swelling and some coagulated blood found in the S.C. Tissue -no fracture, (ll) Contusion 2 1/2' x 1/2' just below the right ear in the mastoid region. Some swelling and congested blood in S.0. Tissue -seen no fracture.
(3.) THE three accused were challaned under Section 302, Penal Code, in the Court of the City Magistrate, Bikaner, who committed them to take their trial under that section in the Court of the Sessions Judge. Phoola accused is absconding and accordingly, evidence was produced regarding the participation of the two accused namely, Dhanna and Jawana only in the commission of the offence. The accused denied having committed the offence and Jawana after admitting the litigation with the deceased stated that on the day of the occurrence, he was at Tandurwala. Dhanna accused simply denied having committed the offence. They produced two witnesses in defence. The prosecution produced P. W. 2, Rajaram P W 3, Eamchand, as eye -witnesses and P. W. 7 Mangalji and p. W. 8 Mahabatsingh who had Been the accused before and after the occurrence near the place of occurrence. The prosecution also produced evidence regarding the recovery of lathiea -one from Jnwana's house at his instance and the other from Jawana's fencing at Dbanna's instance. The lathiea were, however, not blood stained. The witnesses alleged having identified these lathies as having been plied by Dhanna and Jawana but the learned Sessions Judge rightly disbelieved them on this point He, however, believed P. W. 2 Rajaram and p. W. 3 Ramchand and also P. Ws. 7 Mangalji and 8 Mahabatsingh and convicted and sentenced the accused as stated above.;