BANSAL, J. - (1.) THE instant appeal stems from the judgment dated Sept. 14, 1984 passed by learned Additional Sessions Judge No. 1, Ajmer in Sessions Case No. 13/83 whereby he convicted and sentenced the appellant as under :- Ram Niwas and Bhanwarlal each u/sec. 304 Part 1/34 IPc 10 years rigorous imprisonment and a fine of Rs. 2,000/- and in default of and in default of payment of fine to further undergo 6 months rigorous imprisonment. u/sec. 323 IPc Fine of Rs. 1,000/- and in default to further undergo 3 months' simple imprisonment.
(2.) BRIEFLY stated the prosecution case, is that on Nov. 1, 1982 at 2:00 PM `parcha-bayan' Ex. P5 of PW. 4 Smt. Kajodi wife of Ganga Bisan aged about 50 years by caste Sadhu, resident of Village Manda was recorded by PW. 8 Govind Singh, ASI, Police Station Kekri District Ajmer in General Hospital, Kekri wherein Smt. Kajodi stated that yesterday her son Rameshwar had gone to till his field with plough. In the afternoon Rameshwar released his bullocks and started taking his meals. His bullocks entered into the field of Ram Niwas who is her brother-in-law (Devar) and started grazing there. In that field Smt. Kailashi, daughter-in- law of Ram Niwas also was grazing her buffaloes. Smt. Kailash started abusing Rameshwar but he did not reply. Rameshwar took his bullocks back to his field. In the evening when her husband Ganga Bisan went to Chaarbhuja temple he was abused by Bhanwarlal, Dhan Raj son of Ram Niwas and Ram Niwas son of Dwarka Dass. Today at about 10:00 AM she and her husband were going for grazing their cows. When they reached behind `gadh' all the aforesaid persons armed with lathies came there. They stopped her husband and gave beating to him with lathies. On hearing her and her husband's hue and cry her son Rameshwar (PW. 5) who was ploughing his field situated near the place of incident reached on the spot. When Rameshwar tried to rescue them he was also beaten up by the assailants. It was also stated by Smt. Kajodi in her parcha-bayan Ex. P5 that they were saved by Ratan Singh Rajput, Rameshwar Brahmin and Bheru Gurjar. While intervening Bheru also sustained injury on his forearm. Because of beating her husband and son became unconscious. Thereafter she took them to hospital and got them admitted. On the basis of the parcha- bayan Ex. P5 SHO Police Station Kekri registered a case under Sections 323 and 341 IPC and investigation commenced. Formal FIR is Ex. P. 8. In the course of investigation Investigation Officer Govind Singh, ASI (PW. 8) inspected the place of occurrence and prepared site-plan Ex. P. 1. Both Ganga Bisan and his son Rameshwar were medically examined by PW. 2 Dr. L. K. Bhargava, Medical Officer-in-charge, Government Hospital, Kekri and he prepared injury reports Ex. P. 2 and Ex. P3 respectively. Ganga Bisan expired on Sept. 7, 1982 in the hospital. PW. 2 Dr. L. K. Bhargava conducted post-mortem examination on the dead body and he prepared post-mortem report Ex. P. 4. On the death of Ganga Bisan case was converted from Section 323 & 341 IPC to that of 302 IPC and the investigation proceeded further. Inquest report of the dead-body of Ganga Bisan Ex. P. 13 was prepared on Nov. 4, 1982. Safa (turban) and shirt which Ganga Bisan was wearing at the time of incident there seized and sealed by the Investigating Officer vide Ex. P. 6. Dhoti belonging to injured Rameshwar was also seized and sealed vide Ex. P. 7 statements of the witnesses under Sec. 161 Cr. P. C. were recovered. Lathies were recovered from their house and at their instance vide Ex. P11 and Ex. P12 respectively. On completion of investigation a chargesheet was laid against both the appellants in the court of Judicial Magistrate, Kekri who committed the case to the court of learned Sessions Judge, Kekri. On transfer the file was received by learned Addl. Sessions Judge No. 1, Ajmer. Co-accused Dhan Raj who was below 16 years of age, was challaned in Children Court. Learned Additional Sessions Judge framed charges under Sections 304 Part I read with Section 34 and Section 323 IPC against the appellants who pleaded not guilty and claimed to be tried. In order to prove the charges the prosecution examined as many as 10 witnesses. In their statements recorded under Section 313 Cr. P. C. the appellants pleaded innocence. Bhanwarlal also stated that he was falsely implicated on account of enmity. Appellant Ram Niwas stated that because of land dispute he was beaten up by Ganga Bisan, Rameshwar and wife of Ganga Bisan. When they were giving beating to him his son Dhanraj snatched lathi from Ganga Bisan and rescued him otherwise he would have been killed by Ganga Bisan and others. He got himself medically examined and remained under treatment for 23 days in the hospital. When he was in police custody he requested the police to register his case but the police did not register his case. Thereafter he filed a complaint in the court. In defence 5 witnesses were examined. Learned Additional Sessions Judge after hearing the final submissions convicted and sentenced the accused-appellants as indicated hereinabove. I have heard learned counsel for the appellants, learned Public Prosecutor and have also perused the material on record.
(3.) THERE is no dispute that the deceased Ganga Bisan met with homicidal death and this fact is established by medical evidence on record. PW. 2 Dr. L. K. Bhargava stated that on Nov. 1, 1982 at 12:00 noon he examined Ganga Bisan son of Dwarka Dass aged 50 years resident of Manda in hospital Kekri and found following injuries on his person - (i) Lacerated wound 1/2" x 0. 1" x 0. 1" on the left side of scalp on the frontal line. (ii) Lacerated wound 1-1/2" x 0. 4" x 0. 1" of left side of the parietal line on the scalp. (iii) Lacerated wound 1" x 0. 1" x 0. 1" on the mastoid region. (iv) Swelling 4" x 4" on the mastoid region. (v) Bruise 6" x 1" on the right side of abdomen. (vi) Abrasion 5" x 0. 3" on the left side of left scapular line. Dr. Bhargava also stated that all the injuries were caused but blunt weapon. Injuries No. 4 to 6 were simple in nature. For other injuries X-ray was advised. Duration of injuries was within 24 hours. He prepared injury report Ex. P. 2. Dr. Bhargava further stated that on Nov. 7, 1982 at 8. 45 AM he conducted post mortem examination of the dead body of Ganga Bishan and found the aforesaid injuries mentioned in injury report Ex. P. 2. He also stated that left parietal bone, right parietal bone, frontal bone and mastoid bone were found fractured. Menigeal artery of the brain was also found ruptured. There was haematoma in the brain. In his opinion the cause of death was severe haemorrhagic shock, rupture of the medial Menigeal artery of the left side of brain. He further stated that the aforesaid injuries were sufficient in the ordinary course of nature to cause death. Death had occurred within 10-12 hours before the post-mortem examination. All the injuries were ante- mortem in nature. ;