S.S.VYAS, J. - (1.) THIS is an appeal by accused Fattu Khan against the judgment of the learned Sessions Judge, Merta dated September 29,1977 convicting the appellant under Sections 304 part 11 and 323, IPC and sentencing him to three years' rigorous imprisonment under the first and three months' like imprisonment under the second count. The sentences were directed to run concurrently.
(2.) AT about 3.30 A.M. on 23 -7 -76, PW. 4 Manni Khan of village Girodakhara appeared at Police Station Deed wana (District Nagaur) and verbally lodged report Ex. P.2 It was stated therein that at about 7.00 P.M. on the previous day, he saw Jabdin of village Hindasariwala (the deceased victim) coming from the house of DW. 3 Mst. Saftidan: He was crying for help. Jabdin entered the house of DW I Chatura' Ram to take shelter therein. He was closely followed by the accused having a Lathi in his hand PW. 3 Jabdikhan also went in the house of Chatura Ram to intervene and separate the two. The accused struck a bross on the head of PW. 3 Jabdikhan. Jabdikhan got frightened and left the place. Jabdin of village Hindasariwala struck two or three blows to the accused with a Lathi. The accused thereafter struck a blow of his Lathi on the head of Jabdin (victim). Jobdin fell down arid became unconscious. He was immediately taken to Government Hospital, Deedwana for treatment. He, however, did not survive and passed away at about 3 10 A.M. The police registered a case under Section 302, IPC and proceeded with investigation. TW post -mortem examination of the deceased -victim was conducted at about 10.50 A.M. on 21 -7 -76 by PW. 7 Dr. Laxman Singh, the then Medical Officer Incharge, Government Hospital, Deedwana. The doctor noticed the following injury on the dead body of the victim. Lacerated wound 3' x 1/2' x 1' oh the left side of occipital region of scalp obliquely. There was extra Vesation of blood in subcutaneous issue around tae wound. In the opinion of the doctor, death of the victim had occurred due to intra cranial haemorrhage caused by the blow on the head. The post mortem report is Ex. P.14. At the same time, the accused was medically examined and the following injuries were found on his body: (1) Lacerated wound 1 1/2' x 1/4' x 1/2' horizontally on the occipital region of scalp. (2) Lacerated wound with swelling 1' x 1/2 x 1' on medial side of right leg 4' above ankle. (3) Abrasion 1 1/3' x 1/2' on anterior side of right leg 4' above ankle. (4) Bruise 4' x 1 ' oh right scapular region. The injury report is Ex. P.15. At about 11.45 A.M., on the same day (23 -7 -76), the doctor examined PW. 3 Jabdikhan and found the following injury on his person. - Lacerated wound 1 1/2' x 1/2' x 1/2' on the right occipito parietal region, antero -posteriorly. The injury was simple and caused by blunt weapon. The duration was about 12 to 24 hours. The accused was arrested and in consequence of the information, furnished by him whilst under custody, Lathi Article 9, alleged to have been used, by him in inflicting the blows, was recovered. The Investigating Officer inspected the site and seized the blood -stained earth from there. He also seized the blood -stained clothes of the deceased -victim and the accused. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Deedwana, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302 and 323, IPC against the accused, to which pleaded not guilty and claimed absolute innocence. According to him, the prosecution has put forth only a lop -sided and truncated version of the occurrence. The real facts have been concealed. He set up a counter version of the incident in his statement under Section 313, Cr. PC. He stated that PW. 3 Jabdikhan was on inimical terms with him. On the day of occurrence, he went in search of his missing cow and reached the house of Chatura Ram Jat. There, while he was smoking the CHILAM with Chatura Ram, somebody came behind him and struck blows of Lathi on his herd and neck. He became unconscious. During trial, the prosecution examined eight witnesses and filed some document. In defence, the accused examined three witnesses, On the conclusion of the trial, the learned Session Judge held the accused to be an aggressor and found him guilty for causing the death of the victim Jabdin. However, in his opinion, the offence, committed by the accused, was covered not by Section 30 but by 304 Part II, IPC. He further held that the accused had caused a simple injjrytoPW. 3 Jabdikhan. The accused was consequently convicted and sentenced as mentioned at the very out -set.
(3.) I have heard Shri O.C. Chatterji, earned Counsel for the accused and the learned Public Prosecutor Shri 1 Section Udawat. I have also gone through the case file carefully.;