K.D.SHARMA C.J. - (1.) THIS is an appeal filed by Rana and Teja against the judgment of the learned Sessions Judge, Udaipur, dated June 22 1977, by which each of the appellants was convicted under Section 304 part II, read with Section 34, Sections 380 and 323, I.P.C. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 300/ -, in default of payment of fine to further suffer rigorous imprisonment for three months on the first count, on the second count to undergo rigorous imprisonment for one year and on the third count to suffer rigorous imprisonment for six months and to pay a fine of Rs. 200/ -, in default of payment of fine to further undergo simple imprisonment for two months. The substantive sentences of rigorous imprisonment awarded to each appellant on all the three counts were, however, ordered to run concurrently. The trial Judge further ordered that out of the amounts of fine, if recovered, a sum of Rs. 200/ -, be given to Surta and Bhera witnesses each as compensation.
(2.) THE incident that led to the arrest and prosecution of the two appellants may be briefly stated as follows: - Bhuriason of Surta Bhil resident of village Mohalla accompanied by Dhira and Eja went to Police Station, Bikarni, District Udaipur on August 17, 1975, and lodged a verbal report with the police that in the night between August 15 and 16, he was sleeping inside his house wherein his cattle were tied with a rope. In the night his two she -goats were stolen away by the miscreants after cutting the rope with which they were tied. In the morning when he woke up he saw his two she -goats missing from his house and the rope lying cut therein. There upon, his father Surta and his brothers Bhera and Chena went in search of the she -goats. While searching she -goats they reached village. Tinchara following the foot -prints of the she -goats. The foot -prints were not visible beyond the house of Pura. They asked Pura about the where abouts of the she -goats Pura informed them that Rana and Teja appellants along with Rama and Eja had brought two she -goats in the village. Upon receiving this information Bhuria's father Surta and his brothers went to the house of Rama and saw his she -goats there. Surta and his two sons caught hold of the she -goats but they were beaten by Rama, Teja, Rana and Eja with lathis. As a result of the beating, Chena, Surta and Bhera sustained multiple injuries on their bodies. Enda and Pura came to the rescue of the appellants. One Galla, who had gone along with the father of Bhuria came running to village Mahalla and informed Bhuria about the incident. Bhuria then brought the injured to the Police Station. On the basis of the verbal report lodged by Bhuria the police registered a criminal case under Sections 457, 380, and 392, LP C. and took up usual investigation into the matter. As the condition of Chena was precarious, Head Constable Dula Khan recorded his statement Ex. P. 11 and obtained his thumb impression on it in the presence of Chena and Kera Motbirs. Dula Khan inspected the house where from the she -goats were stolen and prepared a sits plan Ex. P. 40. The investigation was then handed over by him to Takhat Singh, Station House officer on August 18, 1975. Takhat Singh received an information from Medical Officer Kotlra that the condition of Chenia was serious Takhat Singh rushed to the Hospital, Kotlra, but before he reached there Chenia breathed his last. Takhat Singh prepared a Panchnama Ex. P. 4 on the dead body and thereafter reached village Tinchara. There he inspected the site and prepared a site plan Ex. P15 and recovered blood stained earth from the spot. He arrested liana appellant vide memo of arrest Ex.P. ft. Teja also was arrested vide memo of arrest Ex. P. 7. After his arrest Rana, while in police custody, gave Takhat Singh an information on August 30, 1975, that he had concealed one lathi in his house and that he was ready and willing to get it recovered at his instance. The above information was recovered by Takhat Singh in a memo Ex.P 16. Later on, Takhat Singh recovered a lathi from the house of Rana appellant at his instance and in consequence of his above information. At the time of arrest Teja appellant had a lathi with him. So the lathi was taken into possession by Takhat Singh.
(3.) AFTER the death of Chenia post -mortem examination was performed on his dead body by Dr. Om Prakash on August 18, 1975. The Doctor found the following external injuries on his body. (i) Condition of subject - stout emaciated, decomposed: Rigor mortis was present all over the body. Mouth was open and hands were flexed at wrists. (ii) Wounds -position, size character. Large laceration was found on the whole length of right occipital region and right temporal region of the scalp. Size 7,, x 3' to 3 1/2'. (iii) Bruises - position, size, nature. Abrasion circular shape was present on the left perietal bone of the scalp. Size 5 mm in diameter. (iv) Mark of ligature on neck, dissection and c. -Nil - (v) Condition of pupils. Dilated, eye -lids of the left eye were swollen bluish. Cornea opaque. Upon dissection of the dead body, the following internal injuries were detected by the Doctor: (a) Scalp, skull and vertebrea. Large haematoma of the scalp was found beneath the right occipital, Right temporal and left temporal region of the scalp. Skull was fractured on the right side. The linear fracture line was extended from the right occipito -parietal suture, commencing in the middle reaching upto the right maxilla beneath the right zygomatic bone of the face. Size 7' long linear. 10 1/2 long fracture was also found on the right -occipital bone longitudinal in direction, occipital -parietal suture on the right side were separated. b. Membranes. Healthy but showing congestion over its surface that gave rise to ecchymosis in the left temporal region due to extra dural haemorrhage. c. Brain and spinal cord. Charged congestion was present on the surface of the brain. ;