- (1.) AS many as five accused were put up for trial before learned Additional Sessions Judge, Baran in Sessions Case No. 52/93. The accused Basania, Moriya and Kajod were acquitted of all the charges framed against them but accused- appellants Ghisia and Ghanshyam were convicted and sentenced vide judgment dated January 6, 1996 as under:- Ghisia & Ghanshyam both. U/sec. 302 IPC for causing death of Rameshwar Life Imprisonment with a fine of Rs. 100/-, in default to further undergo one month's simple imprisonment. U/sec. 307 IPC for causing injuries to Brijmohan 5 years' Rigorous Imprisonment with a fine of Rs. 100/-, in default to further undergo one month's rigorous imprisonment.
(2.) THE said judgment has been assailed by the appellants in the instant appeal. State has not challenged the acquittal of the remaining accused by filing an appeal. The brief facts of the prosecution case are that `parchabayan' Ex. P. 1 of Brijmohan was recorded by PW-22 Ratan Singh, ASI, Police Station, Baran on April 6, 1993 at 7:15 a. m. in Surgical Ward of Government Hospital, Baran. In his statement Brijmohan (PW1) inter alia, stated that yesterday at about 9. 00 - 10. 00 p. m. he alongwith his younger brother Tolaram was going to his new house from old house. On way when they were drinking water at hand-pump situated in front of a School, they found that Kalyan Saharia, Kajod Saharia and Ghanshyam Saharia were taking liquor at the house of Basania Saharia. They were exchanging abuses also. It was further stated by Brijmohan that as soon as they left hand-pump, Ghanshyam, Kajod, Basania, Moria and Ghisia son of Kalyan came and started giving beating to them. Ghisia was armed with a sword, Ghanshyam with Gandasi, Kajod with Londi, Basania with axe and others were armed with lathies. Ghisia and Ghanshyam caused injuries with their respective weapons on his head and left shoulder. The remaining accused also caused injuries. On hearing his cries, his younger brother Rameshwar and Shrikishan came at the spot. They were also caused injuries by the accused, Brijmohan also stated that when Sardar Fakeer, his wife, Gopilal and Birdhilal reached at the place of occurrence, the accused fled away. His mother also came at the spot. It was also stated by him that his younger brother Tolaram also sustained injuries in the incident. They were brought to the hospital where they were admitted. Brijmohan also stated in his `parchabayan' that in winter season the accused had killed his goat and because of this enmity, they attacked and caused injuries to them. On the basis of `parchabayan' Ex. P. 1, a formal First Information Report Ex. P. 10 was written and a case was registered u/sec. 307, 147, 148 & 149 IPC by SHO, P. S. , Nahargarh (District - Baran) and investigation commenced. Injured Rameshwar expired whereupon Police added Section 302 IPC. Investigation Officer Kanhaiya Lal (PW23) reached on the spot and prepared site plan Ex. P. 3. Blood smeared soil and control soil was seized and sealed vide Ex. P. 4. Inquest Report Ex. P. 16 of the dead body of Rameshwar was prepared. Before death Rameshwar was medically examined by Dr. N. K. Tiwari (PW-14) on April 6, 1973 and he prepared injury report Ex. P. 15. Shrikishan and brijmohan were also examined by Dr. Tiwari and injury reports Ex. P. 16 and Ex. P. 17 were prepared. Autopsy on the dead body of Rameshwar was conducted by Dr. Umesh Sharma (PW-12) on April 7, 1993 at 10. 00 p. m. Post-mortem report is Ex. P. 14. Blood stained `kurta' which the deceased was wearing at the time of the alleged incident, was also seized and sealed vide Ex. P. 17. Statement of the witnesses were recorded u/sec. 161 Cr. P. C. Appellant Ghisia and Ghanshyam were arrested and on their information in police custody u/sec. 27 of the Evidence Act and at their instance, a Sword and a Gandasi were recovered from their houses respectively. Sword and Gandasi were sealed and the Investigating Officer prepared the Recovery Memos Ex. P. 6 and Ex. P. 5 respectively. Accused Basania, who has been acquitted was also arrested and on his information and at his instance, an axe was recovered from his house which was sealed and Seizure Memo Ex. P. 7 was prepared. On completion of the investigation, a charge-sheet was laid against the above named five accused in the court of Special Judicial Magistrate (Mobile), Baran, who committed the case to the Court of Sessions Judge, Baran. On transfer, learned Additional Sessions Judge, Baran received the file and proceeded further. Learned Additional Sessions Judge framed charges u/secs. 147, 148, 302, 302/149, 324, 323, 324, 323/149 IPC against all the accused, who denied the charges and claimed trial. The prosecution examined as many as 23 witnesses. In their statements recorded u/sec. 313 Cr. P. C. , the accused claimed innocence and stated that they were falsely implicated because of enmity. In defence two witnesses were examined. Learned trial Judge, after hearing the final submissions, convicted and sentenced the appellants Ghisia & Ghanshyam as indicated here-in-above. The remaining accused have been acquitted by learned Additional Sessions Judge.
(3.) WE have heard learned counsel for the appellants, learned Public Prosecutor, scanned and scrutinized the material on record. Pw-14 Dr. N. K. Tiwari stated that on April 6, 1993 as Medical Jurist, Government Hospital, Baran, he examined Rameshwar S/o Birdhi Lal, Aged 30 years, by caste-Meena, R/o Lindi, P. S. Nahargarh and found the following injuries on his person:- (1) Incised wound (bow shaped) 15 c. m. x 1-1/2 c. m. x bone exposed & fractured on parietal region of scalp extending from left temporal region to right side of scalp. (2) Incised wound 3-1/2 c. m. x 1 c. m. x bone deep over right frontal region. (3) Incised wound and swelling 2-1/2 c. m. x 1/2 c. m. x 1/2 c. m. over left forearm. All the injuries were caused by sharp weapon. Injuries No. 1 & 2 were sufficient to cause death. Opinion about the nature of injury No. 3 was kept reserved till X-Ray report was received. Rameshwar was admitted in Surgical Ward. He was unconscious. He (Dr. Tiwari) prepared injury report Ex. P. 15. Duration of injuries was within 12 hours. ;