S. S. BYAS, J. - (1.) ACCUSED Ditiya alias Durgashanker has been convicted under section 307,, I. P. C. and sentenced to 4 years' R. I. with a fine of Rs. 100/-, in default of payment of fine to further undergo 1 month's like imprisonment by the learned Sessions Judge, Udaipur by his Judgment dated February 12, 1982. By this Jail appeal, he challenges his conviction and sentence.
(2.) SUCCINCTLY stated the facts leading to the prosecution and conviction of the accused-appellant are as follows:- In the afternoon, on 1. 11. 80, P. W. 3 Jamala (the injured victim in the case) was grazing his bullocks near his house situate in village Sondruf, District Udipur. Accused appellant Ditiya accompanied with his father Dhoolia and brother Gopida came there armed with lethal weapons. Accused Ditiya was armed with sword while remaining two had bows and arrows. They addressed abusive words to Jamala and asked him as to how he was grazing his cattle there, Jamala asserted his right and told them that the bullocks were grazing in his own field. Thereupon, all the three persons made an assault on Jamala. Gopia (co-accused) shot two arrows at Jamala, hitting him on his fore-head and ankle. Jamala raised cries. Accused Ditiya struck him a number of blows in quick succession with the sword. As a result, Jamala sustained multiple injuries on the various parts of the body including the head. Hearing the out cries of Jamala, his father P. W. 5 Phoolia, his mother P. W. 4 Mst. Singuri, his wife P. W. 11 Smt. Sundari, his brother P. W. 14 Sahiba and some persons came there. Seeing them, the accused ran away. There was profuse bleeding from the victim's wounds and the clothes, he was wearing, got drenched with it. P. W. 5 Phoolia immediately went to police station, Kotra and presented written report Ex. P/12 of the occurrence. The police registered a case under section 307,, IPC. and proceeded with investigation. The injuries of the victim were examined at about 7. 45 p. m. on the same day by P. W. 1 Dr. O. P. Garg, the then the Medical Officer-in charge, Public Health Centre, Kotra. He found as many as 8 injuries caused by sharp weapon. Out of them, seven injuries were designated as grievous. The X-ray examination of the victim's injuries revealed as many as six fractures including one on the left parietal bone. The accused persons were arrested on 12. 11. 80. While under police custody, accused Ditiya produced the sword alleged to have been used by him in the commission of the offence. On the completion of investigation, the police submitted a challan against the three persons namely; accused Ditiya, his father Dhoolia and his brother Gopida in the court of Munsif and Judicial Magistrate, Kotra. The learned Magistrate in the turn committed the case for trial to the Court of Sessions Judge, Udaipur. The learned Judge framed charges under sections 307 and 307 read with 34, I. P. C. against each of them The accused persons pleaded not guilty and faced the trial. Two of them namely; Dhoolia and Gopida denied their presence at the place of occurrence and alleged that they were falsely implicated. Accused Ditiya, while denying the guilt, averred that it was the victim Jamala, who made an assault on him and shot arrows at him. Jamala had a sword with him When Jamala (P. W. 3) tried to strike the blows to him with his sword, he caught hold of the sword. In this process, P. W. 3 Jamala sustained some injuries by his own sword. During trial, the prosecution examined 18 witnesses and filed some documents. In defence, the accused-persons examined one witness. On the conclusion of trial, the learned Judge dis-believed the prosecution story as against the two accused Dhoolia and Gopida. They were, consequently, acquitted. He, however, held the charge under sec 307, I. P. C. duly brought home to the accused Ditiya. As a result, he was convicted and sentenced as mentioned at the very out set. Aggrieved against the conviction and sentence, accused Ditiya has taken this appeal. Ave heard the learned Amicus Curiae and the Public Prosecutor. I hAve also gone through the case-file, carefully. Before proceeding further, it would be worthwhile to notice the injuries sustained by the victim. The injuries of the victim were examined at 7. 45 p. m. on the very day of occurrence by P. W. 1 Dr. O. P. Garg, the then the Medical Officer, PHC, Kotra. The injury report issued by him is Ex. P/l. Dr. Garg Stated that on examination, he found, the following injuries on the body of the victim:- 1. Fresh transverse incised wound with fracture of left temporal and occipital bone clearly visible in the wound. Hair folicles were cut off. Size 12-1/2 cm. x 2-1/2 cm. bone deep. The wound was situated on the left side of scalp 2" above the triger of the left ear, scalp facia and left temporal and occipital bone were cut. 2. Fresh oblique/ incised wound with fire edges size 8-1/2 cm. x 2-1/2 cm. x 1-1/2 cm. The wound was present on the left side of the face and neck in the lower part of the left face and anterior triangle of the left neck. 3. Incised wound/oblique in direction 3 cm. x1 cm. x1-1/2 cm. was present on the outer angle of the left eye brow. 4. Incised wound longitudinal deep seated. Left ulna bone at the lower l/3rd region about 2" piece from the shaft of the bone has been cut off. Size 18 cm. x 3 cm. x ulna bone deep cutting lower l/3rd piece of the bone visible in the wound. The wound present on the anterio-madial aspect of the right forearm muscles have been cut in the course of the wound. 5. Incised wound transverse in direction with right ulna bone size 5 cm. x 1/2 cm. x bone deep present on the posterior aspect of the right fore-arm 1-1/2" below the albow joint. The right ulna bone was fractured in the wound. 6. Inctsed wound. The right little finger was completed cut off and just hanging by the hand by posterior flap of skin. Size 6 cm. x 1/2 cm. x bone deep was present on the palmer aspect of the right hand at the proximal phalynx of the right little and middle finger. The proximal phalynx of the right little finger was fractured. 7. Transverse incised wound size 9" x 3 cm. x bone deep. The wound was present on the anterior aspect of the left fore-arm. 11 cm. above the wrist joint. The muscle were cut off in the count of the wound. 8. Transferred incised wound 3 in numbers size (1)4 cm, x 1/2 cm. (2)1-1/2 cm. x0. 2 cm. (3)4 cm. x 0. 2 cm. Present on the posterior aspect of the left hand over proximal phalynx of the four fingers (a)middle finger (b)proximal phalynx is in the middle was completely cut off and the finger was just hanging. Left fore-finger was just hanging. Left fore finger proximal phalynx was fractured. P. W. 1 Dr. O. P. Garg stated that injury No. 3 was simple and all the remaining seven injuries were grievous. They were caused by some sharp cutting weapon like sword. The duration of the injuries was 2-3 hours at the time of examination.
(3.) THE injuries were also X rayed on 2. 11. 80 by P. W. 2 Dr. G. L. Verma, the then Radiologist, General Hospital, Udaipur. THE x-ray examination revealed the following fractures :- 1. Fracture on the left parietal bone of skull. 2. Fracture of right ulna. 3. Fracture of proximal phalynx of righ tring finger. 4. Fracture of left radius. 5. Fracture of Proximal phalynx of left finger. 6. Fracture of left middle finger. THE report issued by him is Ex. p/8. The number and nature of the injuries sustained by the victim were neither challenged by the accused in the trial court nor have been challenged before me. In assailing the conviction of the accused-appellant, the first contention raised by the learned Amicus Curiae is that the whole prosecution story was false and fabricated. The prosecution examined as many as 6 eye-witnesses, each of whom alleged to have been seen the occurrence. Five of them were either the victim or his parents and other closed relatives. The only independent witness is P. W. 6 Baheta. He has not lent any support to the prosecution case. As such, the conviction of the accused appellant on the evidence of the interested witnesses, cannot be supported. There were major contradictions inter se in what they stated. It was also argued that the learned trial Judge disbelieved the testimony of these relative witnesses as regards the role played by the two accused-persons Dhoolia and Gopida. In these circumstances, it would not be free from risk in convicting the accused on the evidence of such witnesses. If they could falsely impplicate Dhoolia and Gopida, they could also falsely implicate the accused appellant. In reply, the learned Public Prosecutor supported the conviction of the accused-appellant and sub-mitted that there were no sound reasons to discard the evidence of relative witnesses. ;