KANTA BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment passed by the learned Sessions Judge, Balotra dated 28th April, 1975 by with the learned trial judge convicted the appellants for the offences under Section 325/149 and 147 Indian Penal Code and sentenced them each to undergo three years rigorous imprisonment and a fine of Rs. 300/ in default to undergo three months (sic)rlgorous (sic)imprlsonment on the first count and one years rigorous imprisonment on the second count with a further order that the substantive sentences shall run concurrently.
(2.) BRIEFLY stated the facts of the case giving rise to this appeal are that on 2 -6 -64 in the morning the five appellants gave a beating to Amrekhan infront of the house of Sona Sutbar at village Kesula Somu (PW 2) on seeing Amrekhan being beaten went to the Dhani of Mojikhan (PW 1) brother of Amrekhan and informed him about his brother being beaten. Mojikhan went to the house of Mehru (PW 3) and took him with him to the place of the incident Mojikhan and Mebru found Amrekhan in injured condition outside the home of Sona Suthar beneath a tree. They brought Amrekhan to his house, where his wife Mat, Asiyat (PW 4) fomented his injuries. Babulal (PW 14) the Vaidhya, Incharge of the Ayurvedic Hospital of village - -Padam singh treated Amerkhen. On 9 -6 -74 Amerkhan expired. On the next day when he was being taken to the burrial ground, Magharam (PW 9), Incharge of out -post Kasula stopped the people taking the dead body and obtained a report Ex.P. 1 from Mojikhan brother of the deceased. That report was sent to Police Station Gida through Amraram Head Constable Jetsingh (PW 10) registered a case under Section 302 Indian Penal Code, on the basis of the report Ex P.1. He proceeded for the site. In between Kesula and Gida he met the Station House Officer Dhiraram (PW 16), Incharge of the Police Station Gida and handed over the investigation to him. In the morning of 11 -6 -74 the Station House Officer went to the site and conducted the necessary investigation. Dr. Nembraj Tolaram Heerani (PW 13) conducted the autopsy on the dead body of Amrekhan on 12 -6 -74 at 7 00 a.m. at village -Kesula and preparad the post mortem examination report Ex P. 17. All the five appellants were arrested. Three of them xiz Rewata, Dharma and Jodhan furnished information to the police for getting the lathies recovered and in pursuance of the information furnished by them the lathis were recovered. After the completion of investigation the charge sheet against the five appellants was filed in the court of Munsif and Judicial Magistrate, Barmer under Section 302/147/148 and 149 Indian Penal Code. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions, committed all the appellants to the Court of Sessions Judge, Balotra to stand there trial. The learned Sessions Judge, charge sheted the appellants for those offences and recorded their plea. All of them defied the charges and claimed to be tried. To substantiate its case prosecution examined 16 witnesses in all. The accused in their statements denied all the allegations levelled against them and raised the plea of alibi. They examined four witnesses to substantiate their contention. The learned Sessions Judge placed reliance on the prcsecutkn witnesses so far as the allegations about the appellants giving a beating to Amrekhan was concerned. He, however did not hold them guilty for the offence of murder. In view of his findings, he passed the judgment under appeal convicting and sentencing the appellants as stated earlier.
(3.) MR . v. S. Dave, learned Counsel for the appellants; has assailed the Judgment of conviction on a number of grounds It has been strenuously contended by him that no First Information Report was lodged till 10 -674 when Mojikhan, lodged the report Ex P. 1 at the instance of Magheram Incharge Out -Post, Kesula. It has been urged that there is no explanation for the in ordinate delay in filing the First Information Report nor is there any thing to suggest as to why the deceased was not taken to the hospital for treatment If he had sustained so many injuries.;