SINGH, J. - (1.) ACCUSED appellants Keekiya and Rama have filed this joint jail appeal against the judgment and sentence dated 9. 1. 1997 delivered by Special Judge, SC/st Act Cases, Udaipur in Sessions Case No. 52/95, By the impugned judgment both the accused appellants have been convicted u/sec. 302 read with Sec. 34 IPC and were awarded life imprisonment alongwith a fine of Rs. 1000/- each. In default five months' simple imprisonment was also awarded.
(2.) THE short facts are that on 30. 5. 1995 at about 6. 00 P. M. at village Mandkala one Smt. Amri placed cow dung on a disputed land which was objected to by both the accused appellants. When Amri did not heed to their request they gave besting to her, the hue and cry raised by Amri attracted her son Kania (since deceased) as also her husband Bhagla PW-2. Both the accused appellants met Kania infront of the house of Bhera and gave lathi blows to him by which kania fell down. In the meantime, Bhagla PW-2 also reached nearby. He too was given beating by both the accused appellants. After the occurrence both the accused appellants proceeded to their residence. At that time PW-4 Gautam, another son of Amri, was constructing his new house nearby and was informed about the occurrence by some child who came running on the site and found Kania and Bhagla lying injured on the site. As Kania was unconscious and was seriously injured, he was taken to the house and PW-4 Gautam lodged lodged information report EX. P/1 at police station Dhariawad. Both injured were immediately taken to hospital and were medically examined. As condition of Kania was serious he was referred to Government Hospital, Udaipur where he died at 10. 20 A. M. on 1. 6. 1995. Autopsy on the dead body was conducted. Accused appellant Rama was arrested on 3. 6. 1996. He gave a voluntary disclosure statement and got a lathi recovered from his residential house. Similarly accused appellant Keekiya was arrested on 28. 6. 1995. He also gave a voluntary disclosure statement and got a lathi recovered from his residential house. Both the Articles were sealed at the time of seizure. After usual investigation both the accused persons were put up for trial before the trial court. Accused appellant Keekiya was charged u/sec. 302 IPC whereas accused appellant Rams was charged u/sec. 302 read with Sec. 34 IPC for the injuries cause to deceased Kania. He was also charged u/sec. 323 IPC for injuries caused to Bhagla. The prosecution examined 18 witnesses in all and have exhibited 19 documents. In statement given u/sec. 313 Cr. P. C. both the accused appellants have denied the incriminating evidence appearing against them and pleaded ignorance. Learned trial court, after analytically discussing evidence has convicted both the accused appellants as stated above. The first contention of learned amicus curiae was that there were material contradictions between the statements of both the eye witnesses PW-1 Amri as also PW-2 Bhagla and implicit reliance cannot be placed on their testimony. Similarly, the recoveries of lathis so made at the instance of the accused appellants do not connect them with the crime. Only one lathi was sent to the Forensic Science Laboratory in which also origin of the human blood could not be ascertained. To which of the accused appellants that lathi belonged, has not been proved. Lastly, it was argued that it has not come in the prosecution evidence which of the accused appellant gave a fatal blow on the head of deceased Kania. There was no intention to commit murder because accused appellant Keekiya was real uncle of deceased Kania and younger brother of PW-2 Bhagla. There were sudden quarrel on a petty matter and at the must they wanted to teach PW-1 Amri a lesson as she was putting cow dung on a land which was claimed by both the parties.
(3.) ON the contrary, learned Public Prosecution has supported the judgment and sentence awarded by the trial court. We have given our thoughtful consideration to the rival contentions of the parties. Undoubtedly accused appellants are members of the same family. PW-2 Bhagla is elder brother of accused Keekiya. Admittedly PW-1 Amri was putting cow dung on a piece of agricultural land which was under dispute between the accused appellant and Bhagla. Upon the resistance made by the accused appellants Amri PW1 did not deter, therefore. She was given a threshing. Her cry for help attracted Kenia and Bhagla and they too were given beating. Immediately after the occurrence the matter was reported to the police by PW-4 Gautam which bears a detailed version of occurrence. Immediately thereafter Kania and Bhagla were medically examined by PW-14 Dr. Mahendra Singh Yadav who had found three injuries on the head of Kania and one injury on the person of Bhagla and has proved injury memos Ex. P/11 and Ex. P/12. As Kania was in coma, his condition was very serious, therefore, PW-14 Dr. Mahendra Singh Yadav referred him t Government Hospital, Udaipur where he passed away on 1. 6. 1995. PW-15 Dr. Yogesh Sharma has conducted autopsy on the dead body and found following injuries:- 1. Stitched would 4 cm, obliquely placed on left parietal part with swelling of the left parietal region. 2. Stitched would 1. 5 cm on the right parietal region of scalp. 3. Stitched operational would 26 cm inverted "u" shaped on the right scalp. 4. Stitched would 1 cm on the right eye brow just superimposing over lateral aspect of right eye brow over its long axis. ;