- (1.) THIS appeal is directed against the judgment passed by the Additional Sessions Judge, Sirohi, dated 25. 11. 1975 by which appellant Lakhma, Kala, Kusia and Husia were convicted for the offences under section 302/34 and 452 I. P. C. and sentenced to imprisonment for life on the first count and rigorous imprisonment for two years and a line of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for two months on the second count. Appellants Kala and Lakhma were also convicted for the offence under section 324 I. P. C. and each of them was sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 200/- and in default of payment of five to undergo rigorous imprisonment for one month. Appellants Husia and Kusia were also convicted under sec. 323 I. P. C. and sentenced to rigorous imprisonment for three months and a fine of Rs. 100/- and in default to undergo rigorous imprisonment for one month.
(2.) BRIEFLY stated the facts of the case giving rise to this appeal are as under:- Four or five years prior to the occurrence, there was a quarrel between appellant Lakhma alias Luchma and Uda, son of deceased Gema and brother of complainant Kishna. Lakhma is said to have fractured the hand of Uda, in that quarrel. About 20-25 days prior to the date of the present incident, there was again a quarrel between the accused Lakhma and Uda. It is alleged that the accused party wanted to wreck vengeance from Uda. In the after-noon of 24. 7. 75, when Smt. Jaggi (PW. 1), wife of Uda, was at her house, the four appellants went there and inquired about her husband. On her reply that he had gone to Bali, they said that if he had gone away, let she be killed. At that time Kalia was armed with a naked sword, Lakhma with a Dharia, Kusia with an axe and Husia with a Lathi. Kalia inflicted sword blow to Smt. Jaggi. She raised her left hand to ward of the attack and sustained injury on the palm on her hand. Kusia caused axe injury on her right shoulder. Lakhma inflicted dharia blow on her back and thigh. Gema, father of Uda was grazing buffa-llows in the field at a little distance. On hearing the cries of Smt. Jaggi and her children Gema raised an alarm as to what was happening On his doing so, the four assailants ran towards him and fell him down. They gave a beating to him with Dharia, sword and axe. When Gema was being given the beating, Smt. Jaggi, out of fear, went to the field of Kala and concealed herself there. From there she went to the house of Natha. Nobody was available at the house of Natha After some time Kishna brother of Uda went to the house of Natha and Smt. Jaggi narrated the incident to him. She also informed Kishna about Motiya seeing the occurrence from the hillock. Kishna (P. W. 2) went to the field where his father was lying dead with injuries on his body. Kishna, alongwith Bhoora, left the village to lodge the report at police station Nana situated at a distance of 8 miles from the village. Night having fallen, Kishna and Bhoora passed the night in jungle and went to the police station in the morning at about 8. 15 A. N. on 25. 5. 75. Kishna lodged an oral report which was reduced into writing in the Roznamcha-aam by L. C. Bhopal Singh (P. W. 9) and is Ex. P. 1. As he had no power of investigation he sent for H. C. Mangilal (P. W. 8), in-charge of Police Out Post Beda, who registered the case and proceeded to the site for investigation. At the instance of Kishna, Mangilal inspected the site and prepared the site-inspection Memo Ex. P. 2 and site plan Ex. P. 3. He took blood soaked earth from the site and the blood smeared clothes of deceased Gema and conducted other necessary investigation at the site. The dead body was sent for post-mortem examination to Primary Health Centre, Beda. Smt. Jaggi was also sent there for medical examination. On 26. 7. 75 Dr. Noor Mohammed (PW. 10) Medical Officer, Primary Health Centre examined Mst. Jaggi and noted following injuries on her person: - "1. Incised wound 2" 3" x l/2" x l/2" on the back part of left palm. 2. Incised wound 1-1/2" x 1/4" x 1/4" on right parietal region of scalp. 3. Bruise 3" x2" on right shoulder. Sharp cut 1/2" x l/8" x l/8" on outer part of left of eye. Bruise 2" x 2" on left scapular region. Bruise 3" x l" on back part of right thigh.
(3.) BRUISE 2" x l" on upper third part of left leg. " Injuries No. 1, 2 and 4 were simple in nature and caused by sharp weapon. Rest of the injuries were simple and caused by blunt object. In the Injury Report Ex. 15, duration of injuries was mentioned as 3 to 4 days at the time of examination. The Doctor advised X-ray of left palm for opinion about the fracture. 4. On the same date, at 5. 30 P. M. , Dr. Noor Mohammed conducted the autopsy over the dead body of Gema and observed as under: - "external appearance,- Condition of subject. The body was moderate and highly decomposed full of maggots. Mouth, nose and eyes were bitten by maggots. Rigor Mortis passed off from all the limbs. Wounds: - 1. Incised wound 3" x 1/2" x2-1/2" on right occipito parietal region resulted in protusion of brain matter. 2. Incised wound 3" 1/2" x 1/2" on right side of neck. 3. Incised wound 2" x 1/2" x 1/2" on right shoulder. 4. Multiple sharp cuts on back part of fingers of both hands. 5. Incised wound 2" x 1/4" x 1/4" on left thigh. 6. Incised wound 2" x 1/4" x 1/4" on right leg. Scalp full, skull and vertabral: - Incised wound of scalp of right fron to parietal region resulted in compound fracture of frontal and parietal bones of right side. Membranes were torn. Brain: - Laceration on brain on right fron to parietal region. Both lungs were pale and heart was empty. Large vessels were also empty. Liver, Spleen and Kidneys were pale. Bladder was empty. " 5. In the opinion of the doctor,cause of death was coma due to injury to vital organ (brain) and other multiple injuries. Duration of death was about 2-3 days at the time of post-mortem examination. Post mortem examination report is Ex. P. 16. According to the doctor, injury No. 1 was sufficient in the ordinary course of nature to cause death. 6. On 27-7-75, Ganpat Singh (P. W. 7) S. H. O. Police Station Nana took charge of the investigation. On 28-7-75 he arrested appellants Lakhma and Kalia. On 2-8-75 appellant Lakhma furnished information for getting recovered Dharia and axe. The information was reduced into writing as Ex. P. 6. In pursuance of that information Lakhma got recovered dharia Ex. 4 and axe Ex. 5 on 6-8-75, which was taken into possession vide Memo Ex. P. 7. On 2. 8. 75 Kalia furnished information to the S. H. O. that the sword was with Kusia. The said information was reduced in writing as Ex. P. 8. On 3-8-75 Kusia was arrested vide memo Ex. P. 9. He was having sword Ex. 6 with him at that time, which was taken into possession vide Memo Ex. P. 10. On 10. 8. 75 appellant Husia was arrested vide Memo Ex. P. 11. At the time of arrest, lathi Ex. 7 was recovered from his possession. The S. H. O. then entrusted the investigation to Hari Singh. On 29. 7. 75 investigation was again entrusted to Mangilal and he, at the instance of S. H. O Ganpat Singh, went to Beda hospital and took in possession the blood stained clothes of Smt. Jaggi. 7. The articles recovered during the course of investigation were sent for chemical examination. The report of Chemical Examiner is Ex. P. 17 and that of the Serologist is Ex. P. 18. Upon completion of the necessary investigation the charge-sheet against the appellants was filed in the Court of Judicial Magistrate, Bali. The learned Magistrate finding it to be a case exclusively triable by the Court of Sessions committed the appellants to stand their trial in the Court of Additional Sessions Judge, Sirohi. The learned Judge charge sheeted ail the appellants for the offences under sections 302 and 452 I. P. C. Appellant Kala was also charge-sheeted for the offence under section 426 I. P. C, appellant Lakhma for the offence under section 326 I. P. C. and appellants Husia and Kusia for the offence under section 323 I. P. C. On their plea being recorded all them denied the indictments and claimed to be tried. Prosecution examined 10 witnesses, in all, to substantiate its Case All the appellants, in their statements under sec. 313, Cr. P. C. , denied the allegations levelled against them. Appellant Lakhma admitted his quarrel with Uda and Uda's hand being fractured and then 10-15 days prior to the occurrence Uda causing injuries to him and his having remained admitted in the hospital and on being discharged therefrom being in search of an occasion for taking revenge. Lakhma also stated that he had enmity with Moti because she - buffallows of Moti had entered his field and when he was taking them to the Panchayat, Moti obstructed the way with lathi and ran away after him and had threatened to implicate him. Lakhma also stated that because of his quarrel with Uda, his family members were annoyed with him. No defence witness was examined. The learned trial Judge placed reliance on the prosecution evidence and passed the judgment under appeal. Being aggrieved by their conviction and sentences, the appellants have preferred this appeal through the Supdt. Central Jail, Jodhpur. Subsequently Mr. K. C. Gaur, Advocate, put in appearance on behalf of the appellants. We heard Mr. K. C. Gaur, learned counsel for the appellants and Mr. H. N. Calla, learned Public Prosecutor for the State and gave our anxious consideration to the record of the case. ;