S. S. BYAS, J. - (1.) THIS joint appeal by accused Poosaram, Kojaram and Deeparam is directed against the judgment of the learned Sessions Judge, Jodhpurdated July 16, 1977 convicting the appellants under Section 304 Part II read with Sec. 34, IPC and sentencing each of them to five years rigorous imprisonment.
(2.) PUT briefly the prosecution case is as follows :- Accused Kojaram and Deeparam are the real brothers, while accused Poosaram is the son of accused Kojaram. They are residents of village. Baru P. S. Bap, District Jodhpur. The deceased-victim Bhakhraram aged about 20 years was also a resident of this village. He was related to them at some distance. But the relations between them were not happy. A few days before the occurrence, accused Poosaram had lodged report Ex. D/l against the deceased-victim and some other persons at Police Station, Bap for an offence under section 323, I. P. C. The accused also drove their catties in the field of the victim nearly a month before the incident. On 24-12- 6, in the morning, victim Bhakhra Ram went in search of his missing camels. When he was in the jungle of Moza Durjani, the accused-persons met him there and opened a joint and concerted attack on him They struck blows to him with lathis. The victim raised cries. Hearing his outcries, P. W. 3 Ramsingh, who was with his live-stock nearby, went towards that side and saw the accused-persons striking blows to the victim. He entreated them not to beat the victim, but his request fell on deaf ears The accused threatened him not to come near, lest he would also meet the same fate. The victim fell down but the accused did not stop beating him. The beating resulted in multiple injuries. There was profuse bleeding from his wounds. The accused after beating him went away. P. W. 3 Ramsingh went to the victim and found his hands tied with a turban. The turban was also found wrapped round his neck. He untied his hands. Bhakhraram requested him to inform his parents. Ramsingh went to the 'dhhani' of the victim and found his mother P. W 4 Mst. Anchhi there. He told her that her son was beaten by the three accused-persons. She came with him to the place of occurrence. Bhakhraram was still alive. On being asked by her as to who had beaten him, he said that Deeparam, Kojaram and Poosaram had belaboured him. He asked for water. She went to the 'dhhani' of P. W. 6 Fateh Khan and brought water and sugar from there. She poured some water in his mouth. The victim did not survive thereafter and breathed his last. P. W. 4 Mst. Anchhi and P. W. 3 Ramsingh came back to her dhhani. She sent him to inform her husband, who had gone to village Baru. P. W. 3 Ramsingh went to Baru and informed her husband P. W. 5 Tejaram that his son was done to death by the three accused-persons. Tejaram took Ridmal (P. W. 7) and Jeewan (P. W 8) with him and came to the place of occurrence. Keeping his companions near the dead body, Tejaram went on foot to police station, Bap, which is nearly 85 miles away from there. He reached there at about 7 p. m. on 25/12/76 and verbally lodged report Ex. P/2 of the occurrence. The police registered a case and proceeded with investigation. The Station House Officer Jagmalsingh took P. W. 11 Dr. P. D. Modi, the then Medical Offlcer-in-charge, Primary Health Centre, Bap with him and arrived at the site in the noon of 26-12-76. The investigating officer prepared the inquest report of the victim's dead-body and seized the articles lying there. The autopsy of the victim's dead-body was conducted on the spot by Dr. Modi. He noticed the following injuries on his body:- EXTERNAL:- (1) Contusion 5" x 4" over left lateral and back side of skull. (2) About 8 small abrasions over front of neck. (3) A lacerated wound 3" x 2" xl" over back of skull in longitudinal direction. (4) Three round contusions about 1|" in diameter over left chest near nipple. (5) Contusion 1-1/2 " xl" on right arm above elbow joint lateral side. (6) Contusion 4" x4" over right hand dornal side. (7) Contusion 7" x4" over left lower forearm wrist joint and dorsal side of hand. (8) Contusion 3" x2" over left middle of arm a lateral side. (9) Contusion all over serotum. (10) Contusion 4" x4" over left gluteal region in the front extending to lateral side. (11) Contusion 4" xl" over left thigh lateral side in upper portion. (12) Contusion of size 2" x2" over middle of left thigh lateral side. (13) Lacerated wound 1-1/2 " x1" x1" over left ankle joint. (14) Lacerated wound 2" xl" x 1/2" over left leg in front side. (15) Contusion of 3"x1-1/2 " over gluteal region upper portion near wrist in front extending to lateral side. (16) Contusion of size 1" xl" over upper portion of right leg. (17) Lacerated wound 1" xl" over middle side of right thumb leg. (18) Contusion of size 3" x2" over middle of right thigh in front side. (19) Contusion in back over left supra scapular region size 3" x2". INTERNAL: (1) Separation of left parietal and occipital sutures with linear fracture of left temporal bone and intra cerebral haemorrhage underneath. (2) Laceration with cloths mingled with testicular tissues on both sides. (3) Simple fracture of lower end of left ulna. All the injuries were ante mortem. The Doctor was of the opinion that the victim had died on account of shock caused by the aforesaid injuries to head and testicles, fracture of bones and other soft tissue injuries. The post mortem report prepared by him is Ex. P/17. The accused-persons were arrested on 30-12-76. When arrested, accused Poosaram was found wearing baniyan, turban and sweater. They were found stained with blood. These clothes were seized and sealed. In consequence of the information, furnished by accused Poosaram, whilst under police custody, a dhoti and a lathi were recovered. Blood was found on them. The seized articles were sent for the chemical examination to the Forensic Science Laboratory, Jaipur and the Serologist, Calcutta. All the articles were found stained with human blood. On the completion of investigation the police submitted a challan against three accused persons in the court of Munsif and Judicial Magistrate, Phalodi who in his turn committed the case for trial to the Sessions. The learned Sessions Judge framed a charge under Sec. 302 read with Sec. 34, IPC against each of them. The accused pleaded not guilty and claimed absolute innocence. Two of them viz. Kojaram and Deeparam pleaded alibi and averred that they were at a far distant place from the site of occurrence at the time of the alleged incident. Accused Poosaram advanced the plea of private defence. According to him, the victim made an assault on him and struck blows to him with a lathi. He snatched away that lathi from the victim and the victim fell down. When he was arrested on 30-12-76, the injuries were found on his person. In the course of trial, the prosecution examined 11 witnesses and filed some documents. In defence, the accused examined five witnesses. On the conclusion of trial, the learned Judge found the prosecution story substantially true. The pleas of alibi and the private defence were rejected as being not established. The learned Judge held that the offence made out was one under section 304 Part II , and not under Section 302, IPC. The accused were, consequently, convicted and sentenced as mentioned at the very out set. Aggrieved against their conviction and sentence, the accused have come up in appeal. I have heard the learned counsel for the accused-appellants and the Public Prosecutor. I have also gone through the case file carefully.
(3.) IN assailing the conviction of accused persons, learned counsel for the appellants raised the following contentions:- (1) P. W. 3 Ramsingh was wrongly taken to be a witness of the occurrence. His conduct showed that he had not seen the occurrence. The court-below cropt into an error in putting implicit faith on his testimony. (2) Dying declaration alleged to have been made by the victim could not be made by him. It was wrongly called in aid to convict the accused. (3) The evidence of alibi was wrongly rejected by the court-below. (4) The learned Judge had crept into an error in rejecting the plea of private defence, and (5) Even if, the prosecution story is accepted as true, the offence made out is that under sec. 325, IPC and not under section 304 Part II, IPC. In reply, the learned Public Prosecutor supported the conviction of the accused-persons and submitted that there were no reasons to disbelieve the testimiony of P. W. 3 Ramsingh. So also, the evidence relating to the dying declaration was firm and solid. The victim had received as many as 19 injuries, some of which were on the vital parts. The accused had died instantaneously on the spot. The offence made out would, therefore, be covered by section 304 Part II, IPC. I have taken the respective contentions into considerations and propose to deal with them at seriatim. Taking the first contention, it was argued that the testimony of P. W. 3 Ramsingh was wrongly relied upon. He was not a witness of truth and his conduct showed that he had not seen the occurrence. It was contended that he was on inimical terms with the accused. There was litigation between them. He was no more than a chance witness. He did not intervene to help the victim, His conduct, thus, being unnatural, it would not be safe to convict the accused on the basis of what he testified. ;