GOYAL, J. - (1.) APPELLANTS Mahendra and Bhadar @ Bahadur were tried for offence under Section 302 read with Section 34 I. P. C. by the learned Additional Sessions Judge, Khetri, district Jhunjhunu. The learned Additional Sessions Judge convicted and sentenced both the accused-appellants under Section 302 read with Section 34 I. P. C. to life imprisonment and a fine of Rs. 1000/-, in default thereof to further undergo rigorous imprisonment for 6 months. Against their conviction and sentence, they filed this appeal.
(2.) THE facts in brief giving rise to this Appeal are that PW1 Shri Mool Chand, brother of the deceased Shri Nathuram submitted a written report Ex. P. 1 at Police Station, Khetri at about 2. 30 p. m. on 27. 3. 1994 with the averments that at about 1. 30 p. m. the informant was going towards the houses of the persons of Kumhar caste. He heard hue and cry and then he saw that Mahendra s/o Balu Ram was inflicting knife blows to his brother Nathu Ram and Shri Bhadar was causing injuries with a broken glass bottle. On a call made by him, his cousin brother Shri Bhagirath also came there and when they came to intervene, both the accused ran away. THEreafter, they proceeded to Khetri Hospital by a Jeep. Shri Nathu Ram died near hospital. A formal FIR Ex. P. 2 No. 82/94 was registered under Section 302 read with Section 34 IPC. Investigation commenced and charge- sheet came to be filed against both the accused-appellants. The learned Additional Sessions Judge, Khetri framed the charge under Section 302 read with Section 34 IPC and it was explained to the accused-appellants. They pleaded not guilty and claimed trial. Seven witnesses were examined on behalf of the prosecution. The circumstances appearing against the accused- appellants in the evidence were explained to them as provided under Section 313 Cr. P. C. Both the accused-appellants pleaded innocence. No witness was examined on behalf of the accused. Having heard final submissions, both the accused were convicted and sentenced as stated above. We have heard learned counsel Shri R. S. Agarwal for the appellants, learned Public Prosecutor Shri R. P. Meena and have carefully considered the entire evidence. The Post Mortem on the dead body of Nathu Ram was conducted by P. W. 3 Dr. B. S. Dadarwal on 27. 3. 1994. He was posted as Senior Medical Officer Khetri and prepared Post-mortem report Ex. P. 12, and found following ante-mortem injuries on the person of deceased. 1. One stab Wound :- 2'' x 1/2'' x 6'' deep on between the space, 1 and 2 left ribs just lateral to the left border of sternum, slightly oblique, clothes blood present at the mouth of wound. 2. One Incised Wound :- 1/2'' lateral to the injury No. 1 and 1 and 1/2'' from the left border of sternum. Slightly oblique. Size one and half inch x half inch x half inch. 3. One Stab Wound :- Just above the left fourth rib and between third left rib, two inch from the left border of sternum. 4'' below the left clavical bone. Horizontal Size 1/2'' x 5'' deep. All the above three wounds are medial to left mid- clavicular line. 4. One Incised Wound :- 1 and 1/2'' x 1/2'' x 1/2'' at ant axillary fold of left axilla, at the space of 4th rib. Horizontal. 5. One Stab Wound :- 1 and 1/2'' x 1/2'' x 5 and 1/2'', 1 and 1/2'' below the Injury No. 4, Horizontal. Lungs :- Left Lung :- 1. One Incised Wound : - 1/2'' x 1/2'' x 1'' lob oblique. 2. One Incised Wound :- 3/4'' x 1/2'' x 4'' on lateral part of left lower lob, Horizontal. Corresponding Area of the above wounds, incised wound also present in Left Pleura. Heart :- (i) Left ventricle :- 1/4'' x 1/4'' x whole thickness of left ventricle (incised wound ). Laterally. (ii) Right ventricle :- One incised wound on ant-part of right ventricle size 1/2'' x 1/2'' x whole thickness of right ventricle. Corresponding area of pericardium to the wounds on ventricle also shows incised wounds. Thorasic cavity full of blood. All wounds are anti-mortem in nature.
(3.) IN his opinion the cause of death was haemorrhage and shock due to stab wounds on heart and lung. Dr. Dadarwal further opined that these injuries could be caused by knife or broken glass bottle and were sufficient to cause death in ordinary course of nature. IN cross-examination Dr. Dadarwal stated that these injuries were not possible due to fall on stone. On the basis of this medical evidence the learned trial Judge has rightly came to this conclusion that deceased Nathu Ram died because of these injuries which were sufficient to cause death in ordinary course of nature. Now, the most crucial question in this appeal before us is as to who caused these injuries on the body of deceased Nathu Ram. Two witnesses i. e. P. W. 1 Mool Chand and P. W. 2 Bhagirath were examined as eye-witnesses. According to the prosecution story, P. W. 5 Suresh Kumar Swami also came to the place of occurrence just after the incident. This occurrence, according to the prosecution, took place on the next day of Holi. P. W. 1 Mool Chand stated that at about 1. 30 p. m. on that day, he was going to the houses of Girdhari and Sanwata and at that time he witnessed that the accused Mahendra was inflicting knife blows and accused Bhagirath was causing injuries by broken glass bottle to his brother Nathu. Nathu fell down and even thereafter both the accused inflicted injuries upon Nathu Ram. Upon raising hue and cry by him, his cousin brother Bhagirath reached there, who was three or four steps behind him. Thereafter Girdhari, Suresh Swami, Girdhari Thakar and Sawat Ram also reached there. P. W. 1 Mool Chand has been subjected to detailed cross-examination but nothing adverse has come out. P. W. 2 Bhagirath has fully corroborated the statement of P. W. 1 Mool Chand. He stated that he was also going to the houses of Sanwata and Girdhari and when he reached near their houses, he saw that accused Mahendra and Bhadar were causing injuries to Nathu Ram respectively by knife and broken glass bottle. He has also stated that Mool Chand was going ahead of him and when they reached near Nathu, both the accused ran away and at that time Suresh, Girdhari Thakar, Sawata Kumahar and Girdhari Kumhar also reached there. Thereafter they took Nathu to Hospital but near hospital Nathu died. It is also stated by P. W. 1 Mool Chand and P. W. 2 Bhagirath stated by P. W. 1 Mool Chand and P. W. 2 Bhagirath that Ex. P. 1, written report, which is in the hand of P. W. 5 Suresh Swami was submitted by them at the Police Station P. W. 2 has also been cross-examined in detail. P. W. 5 Suresh Kumar Swami stated that on 27. 3. 1994, he was in his room. On hearing hue and cry, he came out and saw that Nathu was lying there. There was profuse bleeding from his wounds and both the accused persons were running from the place of occurrence. He also saw that Mool Chand and Bhagirath were coming there from the opposite side. Thereafter Nathu was being taken to hospital in a jeep of Rameshwar Kumahar but on the way Nathu died. In cross-examination, he stated that his house is situated about 15-10 steps away from the place of occurrence and Girdhari and Sawata were also seen coming to the place of occurrence. It is also stated by him that he did not see the actual occurrence. He further stated that houses of both the accused persons are side by side, one km. away from the village. ;