- (1.) BOTH these appeals are directed against the judgment dated Nov. 29, 1973, passed by the Sessions Judge, Bikaner in Sessions case No. 10/1973. In the Sessions case aforesaid five persons viz., Bhaguram, Sitaram, Rughdass Chandaram and Ghasiram were prosecuted on charge Under Sections 302/149 and 147 IPC relating to the murder of one Laduram. The Sessions Judge by his judgment dated 29th November, 1973 acquitted the accused persons of the charge Under Section 302/149 IPC and convicted them for the offences Under Sections 323 and 147 IPC. He sentenced the accused persons to rigorous imprisonment for one year and to pay a fine of Rs. 50/ -, in default of payment of fine so further undergo rigorous imprisonment for three months Under Section 323 IPC and to undergo one year's rigorous imprisonment and to pay a fine of Rs. 250/ -, and is default of payment of fine to further undergo rigorous imprisonment for three months Under Section 147 IPC. D.B Criminal appeal No. 271/1973 has been filed by the State against the acquittal of the accused persons for the charge Under Section 302/149 IPC and D.B. Criminal appeal No. 205/73 has been tiled by the accused persons against their conviction and sentence for the offence Under Sections 323 and 147 IPC.
(2.) , The case of the prosecution is set out in the report Ex.P.17 lodged by Laduram deceased at Police Station, Nokha, District Bikaner on 13 -11 -1972 at 1.30 p.m. In the said report Laduram stated that he has a barber shop at Katla Nokha Mandi and that in the morning at 9.00 a.m. when he was going to his shop from his house he saw the wife of Sitaram Harijan throwing refuse in front of the Sofia Primary School, Nokha Mandi. On seeing this Laduram told hex that inspite of being told not to do so on several occasions she had not refrained from throwing the refuse there and he asked the wife of Sitaram to take back the refuse from there and thereupon Sitaram's wife had threatened him that he would be taught a lesson for this. In the report it was further stated that after working at the shop he had gone to have his meal to his house and while returning from his house at about 12.30 p m when he reached the Gandhi Chowk, he saw the accused persons viz , Bhaguram, Sitaram, Chandram and Ghasiram, all were armed with Lathis and they said that they will teach him a lesson for getting the refuse lifted in the morning In the report it was further stated that all the five accused persons came together to attack him and that Ghasiram gave a blow on his back and Chandram gave a blow on the wrist of his left hand also pushed him as a result of which he fell down and thereafter all the five accused persons assaulted him with Lathis. He raised an alaram. On hearing which Bastiram Bishnoi and Shantilal Oswal arrived there and intervened. In the said report it was further stated that all the five accused persons had come with the common intention to assault him with Lathis. On the basis of the said report a case Under Sections 147/323 IPC was registered. The injuries of Laduram were examined by Dr. Motilal Mishra (PW 6) Medical Officer, Primary Health Centre, Nokha on November 13, 1972 at 2. 25 p.m vide injury report Ex. P.4. According to the said injury report Laduram had the following injuries on his person: (1) Lacerted wound 1 1/2' x 1/2' x 1/6' deep on the simple lower 1/2 of the left forearm laterally (2) Lonear abrasion 3' x 1/2' on the middle 1/3 of the left forearm lateraly (3) Heamatoma 2' x 1' on the appear 1/2 of the left forearm laterally (4) Bluish red line 7' x 1' on lower 1/2' of the left side and back 6' above the alise erest (5) Two bluish red lines 7' x 1' on the right side of lower scapular region (6) Bluish red line 6' x 1' on the upper 1/2 of back horizontally (7) Bluish red line 7' x 1' on the upper 1/2 of the thigh entered anedally. As injury No. 6 was suspected to be grievous. X -ray examination was advised and the X -ray examination was conducted by Dr. Gopiram Agarwal (PW 7) Radio logist -cum -Lecturer in S.P. Medical College and P.B M. Hospital, Bikaner. The X -ray report Ex.P. 6 indicated a fracture of the lateral and of clavicle and scapula scare. Since the condition of Laduram was not good he was admitted for treatment in the P.B.M. Hospital, Bikaner. While he was an indoor patient at P.B.K. Hospital, Bikaner, an operation was done on November 16, 1972 and during the course of the operation it was found that there was a perforation of small intestine which was closed and further he found that on the spleen there was a tear injury and, therefore, the spleen was removed. After the operation had been performed Laduram expired in the hospital on 15th November, 1972 at 8.05 p.m. The post mortem examination of the dead body of Laduram was conducted by Dr. Dhirender Singh (PW 8) vide post mortem report Ex. P 7. During the course of post mortem examination it was found that there was fracture of 9th, 10th and 11th ribs or left side anteriorly extraverted blood was present in the region of fracture. According to the opinion of the medical officer, the death was on account of sheek and heamorrhage caused by the injuries mentioned in the said report. After the death of Laduram the case was converted from one Under Section 323 IPC to 302 IPC. After completing the investigation, the police filed a charge sheet against the accused persons and the Addl. Munsif Magistrate, Bikaner committed them for trial to the court of Sessions and charges Under Sections 307 140 and 147 IPC were read over to the accused persons who pleaded not guilty and claimed to be tried.
(3.) THE prosecution in support of its case examined 13 witnesses. Bastiram(PW 1) and Shantilal (PW 2) have been examined as the eye witnesses of the occurrence. Malaram (PW 3) has been examined as the witness of the incident which took place in the morning at about 9 a.m. involving the deceased and the wife of Sitaram Harijan in front of the school. Dhanraj (PW 4) is the attesting witness of the seizure memo Ex. P 2 regarding the recovery of the shirt of the deceased, Ganpatram (PW 5) is the attesting witness of the 'Pard Surat Real Haal' Ex. P 1 and the seizure memo Ex. P. 2. Dr. Motilal Mishra is the medical officer, Primary Health Centre, Nokha who has examined the injuries of Laduram and has proved the injury report Ex.P4. Dr. Gopiram Agrawal (PW 7) was the Radiologist -cum -Lecturer in S.P. Medical College and P.B.M. Hospital, Bikaner, who had made the X -ray examination and has proved the X -ray report Ex. P 6 and the X -ray plate Ex.P.6. Dr. Dhirendra Singh (PW 8) was the Medical Jurist at P.B M. Hospital, who had conducted the post mortem examination of the dead body of Ladu Ram and has proved the post mortem report Ex. P 7. Jagmal (PW 9) is the attesting witness of the seizure memos Ex. P 8, P 9, P 10, P 11 and P 12 with regard to the recoveries of Lathis at the instance of the accused persons from their houses. Dr. S. K Jhandi (PW 10) was posted as Reader in Surgery in S.P Medical College, Bikaner who had operated upon Laduram on November 15, 1972. Br. Anoop Bothra (PW 11) was posted as Registrar at P.B. M. Hospital Bikaner and was doctor incharge for the medical treatment of deceased Laduram while he was indoor patient in the said hospital, Bhagwan Singh (PW 13) was posted as S.H O. Police Station Nokaa nn November 13, 1972 and recorded the report Ex. P 17 lodged by Laduram in the police station and conducted the investigation in the case. Remdayal (PW 13) took over as S.H O. Police Station Nokha on 16 -11 -1972 and he conducted the rest of the investigation in the case.;