M.L.JOSHI, J. - (1.) THE Sessions Judge, Udaipur, has convicted Bhagwan Das son of Jagroop Das by caste Kamad resident of Dhol under tion 302 I.P.C., and sentenced him to death. He has, therefore, made this reference for the confirmation of death sentence passed on him. The appellant Bhagwan Das has also filed an appeal against the judgment of conviction and prayed for his acquittal. The murder reference (No. 2 of 1972) and the appeal preferred by the appellant (Criminal Appeal No. 135 of 1972) arise out of the same judgment and are being disposed of together by this judgment.
(2.) THE incident out of which the above mentioned cases have arisen is illeged to have taken place in the night intervening 25th and 26th of April,1971. Relevant facts are that Chun Das and Manna were real brothers. Bheru Das is son of Chun Das and is nephew of Manna Bheru Das was married to Mst. Vardi (D W. 1) who is the sister of accused Bhagwan Das. Mst. Dhulki is brother's widow of Manna and is grand mother of Bheru Das. Accused Bhagwan Das is residint of village Dhol which is at a distarce of 4 miles from Sancheli. Bheru Das and his relations used to reside at Sanchli. Relations between Bheru Das and his wife Mst. Vardi were not cordial, as Mst. Vardi used to run away to her parents house without informing her husband and she also neglected to attend to bouse hold duties. This led to Quarrels not infrequently between Vardi on one hand and Bheru Das, his uncle Manna and grand -mother Mst. Dhulki on the other. The prosecution story is that in between the night of 25th and 26th April, 1971, accused Bhagwan Das came to the house of Mst. Dhulki and knocked the door Manna thereupon opened the door and lit the lamp. At that time Manna and Mst. Chunki, whom we shall refer later, was sleeping on the roof of the house. Manna arranged a bedding for Bhagwan Das and both Manna and Bhagwan Das slept outside the house on the Chabutari (platfrom). Mst Dhulki, however, slept inside the house. The main door of the house opens on the Chabutari.
(3.) AFTER sometime Mst. Chunki beard cries 'mare -re mare -re' from outside the house. She got up and saw accused Bhagwan Das inflicting knife blows on Manna, The cries also seem to have attracted Mst. Dhulki, who opened the door and came out of the house and a ked as to what had happened. Thereupon accused Bhagwan Das told her that Manna was simply raving under the influence of intoxication. This, however, did not convince Mst Dhulki and she went near Manna to verify the fact for herself. As soon as she come on Chabutari, she was felled down by accused Bhagwan Das, who inflicted knife blows to her also. Thereafter the accused gave a call to Mst. Chunki as to whether she was asleep or awake and whether there was grass available on the roof. Mst. Chunki thereupon told the accused that she was awake and hat there was no bundle of grass on the roof. The accused at once went on the roof and caused stab wounds with a knife on the person of Mst. Chunki also. Mst. Chunki thereupon shouted and that attracted Heerka, whose house is at a distance of about 30 paundas from the house where Mst. Chunki, Manna and Mst. Dhulki were sleeping Heerka inquired as to what had happened. There upon Mst Chunki told that they had been stabbed by the accused and he should call for the villagers Bhagwandas having heard this left Mst. Chunki and rushed towards Heerka. In the mean time Mst Chunki managed to slip out of the house and concealed herself behind the stack of firewood, which was lying at a little distance from the house in question She, however, heard Heerka saying to the accused to spare him and assured him that he would not call villagers, but that Lad little effect on the accused. It is alleged that Mst. Chunki saw the accused inflicting blows on the person of Heerka from the place where she had concealed herself. Mst. Chunki remained behind the stack of firewood till the day break, as she had been frightened. Early in the morning she went towards village and came accross Dhanna Sharkar (P.W. 2), to whom she narrated the whole incident that had taken place in the night. Dhanna Shankar came on the spot and saw Mst. Dhulki and Manna lying dead and Heerka gasping for life. He left for the police station where he lodged first information report which is Ex P/6. The police registered a case under Section 302 and 307, I PC. Having done that, the S.H.O. Jabbar Singh came on the spot for investigation He found Mst. Chunki seriously injured and Manna, Dhulki and Heerka lying dead on the spot. On the 'Tehrir' received from the S.H.O. Jabbar Singh, Dr. Mahendra Singh, Incharge of the Primary Health Centre, Saira, had also accompanied the S.H.O. to the spot. S.H.O. Jabbar Singh prepared the inquest reports (Exs. P/7, P/8 and P/9) of Manna, Mst. Dhulki and Heerka. Mst. Chunki was taken by Dr. Mahendra Singh to the Primary Health Centre Saira, for her examination and rendering medical assistance. In the same afternoon Dr. Mahendra Singh (P.W. 10) performed the postmortem examination on the dead bodies of Manna, Mst. Dhulki and Heerka. He found 8 external injuries on the body of Manna, which are as follows: 1. Incised wound 1/2' x' x' in the left side of the upper lip near the angle of the mouth 2. Incised wound ' x' x' near left side of the angle of the mouth 3. Incised wound 2' x' x' on the lower lip right side from the mid line 4. Incised wound 1' x' x 2' on the right cheek 5. Punctured wound 1' x' x6' in the right side of the chest 3' lateral to the midsternum line just below clavicle 6. Punctured wound 1' x 1' x 7' in the the mid clavicular line 2 ' from the midsternum line 7. Incised wound 3/4' x1/8' x4' on the right side of the chest below the right nipple in the nipple line 8. Punctured wound 1' x' x5' on the right side of the chest posterior axillary line and 10th rib was found fractured. On opening the body he found the following: 1. The 10th rib was found fractured on the right side. 2. The pleura was found injured and cut and filled with blood clots. 3. Right lung was punctured having a cavity 3' X 1' X' filled with blood clots and right lung was collapsed. 4. The left lung was also found collapsed. 5. Peritonial cavity was filled with blood clots. 6. Stomach was empty. 7. Liver was injured showing 1' x' x1/4' cavity. In the opinion of the doctor the injuries were ante mortem caused by sharp edged weapon and injuries Nos. 5 and 6 were, according to him, individually sufficient in the ordinary course of nature to cause death. ;