S.C.AGRAWAL, J. - (1.) THIS appeal has been filed by the appellants Achlaram and Dungar Ram against the judgment and order dated January 31, 1977, passed by the Sessions Judge. Jodhpur, in sessions case No. 91 of 1975. In the aforesaid case the appellants were prosecuted in respect of offence under Section 307 IPC. By the judgment and order aforesaid, the Sessions Judge has convicted appellant Dungar Ram under Section 307 IPC and has sentenced him to rigorous imprisonment for a period of two years. Appellant Achlaram has been acquitted of the charge under Section 307 IPC and has been convicted for the offence under Section 323 IPC and sentenced to the period of imprisonment already undergone.
(2.) THE prosecution of the appellants relates to an incident which is alleged to have taken place on August 9, 1975 at about 6 p m. in the field of one Kammu khan and in the said incident, one Mohammed Khan received injuries. Two reports were lodged with the police in relation to the aforesaid incident. One report (Ex. P. 5) was lodged by Subhan Khan P.W. 6 at police station Jhanwar on August 10, 1975 at 3 45 a.m. In the said report it was stated that the informant had been informed by Kadar Khan at about 9 p.m. that at about 6 p. m. he and Mohammed Khan while they were returning, were assaulted by Achlaram and others on the way and that Mohammed Khan was lying at the spot and thereupon the informant Subhan Khan went to the spot and found that there were injuries on the head of Mohammed Khan and he was unconscious. In the said report, Subhan Khan said that he was not aware as to how many persons assaulted Mohammed Khan and with what weapon. After the aforesaid report had been recorded in the police station the Head Constable Desh Raj P. W. 8 left for the scene of occurrence. The other report is the report (Ex. P. 1) given by Kadar Khan P.W. 2 to Head Constable Desh Raj at 6 p.m. on August 10, 1975 when he reached the scene of occurrence. In the said report it has been stated that on August 9, 1975 at about 6 p.m. the informant Kadar Khan and Mohammed Khan were keeping a watch over the crops standing in the field of Kammu Khan in khasra No. 169. Appellants Achalaram and Dungar Ram as well as Mangalram. Bhiyaram, Kbimaram, Pataram, the wife of Achlaram, the wife of Pataram and daughter of Achlaram while taking their cattle to their house, drove the cattle into the field of Kammu Khan. When Kadar Khan and Mohammad khan objected to it, appellant Dungar Ram, who was armed with a lathi, entered the field of Kammu Khan and inflicted three or four blows with lathi on mohammed Khan as a result of which Mohammed Khan fell down. The informant Kadar Khan has further stated that on seeing this he ran away and that the appellants Dungar Ram and Achlaram pursued him but he was able to escape and he gave the information about the incident to Subhan Khan. On the basis of the aforesaid report (Ex. P. 1) which was recorded at police station, Jhanwar, on August 10, 1975 at about 2 p.m. a case under Section 447 and 323 IPC was registered and the investigation was started. The injuries of Mohammed Khan were examined by Dr. P. Dayal P.W. 7 on August 10, 1975 at 9.15 a.m. and according to the injury report (Ex. P. 6) the following injuries were found on his person: - - 1. Abrasion 1.5 cm x o.2 cm on the left frontal eminence. 2. Abrasion 5 cm x 2 cm with ill -defined haemotoma on the light fronto -parietal region of scalp. 3. Ill -defined swelling over the left shoulder region. 4. Bruise 3 cm x 2 cm over the lumber region with tenderness. On X -ray examination depressed and comminuted fracture of right parieto occipital region of scalp was found, Appellant Dungar Ram was arrested on August 17, 1975 and appellant Achlaram was arrested on August 18, 1975. After completing the investigation, the police filed a charge sheet against the appellants and they were committed for trial to the court of Sessions and charge under Section 307 IPC was framed against both the appellants.
(3.) THE prosecution, in support of its case, examined eight witnesses, out of whom Mohammed Khan P.W. 1, Kadar Khan P.W. 2, Khumaram P.W. 3 and Ramuram P.W. 5 are the eye witnesses of the occurrence. The appellants, in their statements recorded under Section 313 Cr PC, pleaded that they have been falsely implicated. Appellant Achlaram has stated that they field in khasra No. 169 was his and that he had sown 'bajra' crops in the said field and that a false case had been made against him for the purpose of obtaining the possession of the field. Appellant Dungar Ram has stated that he was living in the Keru Khania for the past three years and that he was not present at the scene of occurrence. The appellants also examined four witnesses. The Sessions Judge has held that on the basis of the evidence adduced by the prosecution, it was established that both the appellants had assaulted Mohammed Khan with lathis. The Sessions Judge has further found that the injury on the parietal region of Mohammed Khan was inflicted by appellant Dungar Ram and that according to the evidence of Dr. P. Dayal, P.W. 7, the said injury on the parietal region was grievous and dangerous to life. The Sessions Judge, therefore, held that the offence under Section 307 IPC was made out as against appellants Dungar Ram. The Sessions Judge was, however, of the view that the occurrence had taken place suddenly without preconcert and the provisions of Section 34 IPC could not be invoked and that the accused persons could not be convicted under Section 307 read with Section 34 IPC. The Sessions Judge, therefore, convicted appellant Dungar Ram alone of the offence under Section 307 IPC and convicted appellant Achala Ram of the offence under Section 323 IPC. Hence this appeal.;