GOYAL, J. - (1.) THIS appeal under Section 374 Cr. P. C. is directed against the judgment dated 17. 4. 2001 whereby the learned Sessions Judge, Sawaimadhopur convicted the accused appellants Girraj, Makadya @ Hari Ram Radha Kishan and Morpal u/s. 302, 325 and 324 IPC and sentenced them as under: All the accused appellants. U/s. 302 IPc Imprisonment for life and a fine of Rs. 5,000/- to each of them. In default of payment of fine, to further undergo simple imprisonment for three months; U/s. 325 IPc R. I. for two years and a fine of Rs. 5000/- to each of them; in default of payment of fine, to further undergo simple imprisonment for three months. U/s. 324 IPc R. I. for one years and a fine of Rs. 1,000/- to each of them; in default of payment of fine, to further undergo simple imprisonment for one month. All the sentences were ordered to run concurrently.
(2.) THE relevant facts in brief giving rise to this appeal are that PW-1 Vishnu Sharma submitted a written report (Ex. P. 1) to Station House Officer, P. S. Bonli at Village Pipalda at about 7. 45 p. m. on 26. 11. 99 with the averments that at about 6. 30 p. m. when he was coming from village Jastana some persons at the bus stands were talking that some persons having beaten one Kailash went away and he was lying near the canal. A formal FIR No. 268/99 (Ex. P. 24) was registered u/s 341, 323 and 307 IPC. Investigation commenced and during the course of investigation, the injured Kailash expired on 27. 11. 1999. Hence, Section 302 IPC was added. During the course of investigation, the police inspected the site and prepared site plan (Ex. P. 3 ). Kailash was firstly got examined by the Medical Officer, Bonli vide injury report (Ex. P. 22 ). Another injured Bharat Lal was also got medically examined and his injury report is Ex. P. 6 and x-ray report is Ex. P. 12. After death of Kailash, he was subjected to post mortem examination and his post mortem examination report is Ex. P. 9. During the course of investigation, blood stained soil and simple soil was also seized and the seizure memo (Ex. P. 4) was prepared. The accused persons were arrested and on the information given by the accused persons u/s. 27 of the Indian Evidence Act, weapon of offence i. e. , Lathies were also recovered. After usual investigation, charge sheet was submitted before the learned Judicial Magistrate, Bonli, who committed the case to the court of learned Sessions Judge, Sawai Madhopur. The Trial Court framed charges against accused Morpal for offences u/s. 302, 307, 323 and 325 IPC and against rest of the three accused persons Radha Kishan, Makadya @ Hari Ram and Girraj, charges were framed for offences u/s. 302, 307, 325/34 and 323 IPC. They pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined as many as 24 witnesses namely PW-1 Vishnu, PW-2 Kamlesh, PW-3 Chhotu Lal, PW-4 Bharat Lal, PW-5 Mitha Lal, PW-6 Bathram, PW-7 Ramesh, PW-8 Ramdhan, PW-9 Durga Lal, PW-10 Dhoolchand, PW-11 Dr. Suman Dutta, PW-12 Hari Prasad, PW-13 Ramkesh, PW-14 Dr. Abdul Aziz Kagzi, PW-15 Tejram, PW-16 Shiv Dayal, PW-17 Maghram, PW-18 Ramraj, PW-19 Ram Bharosi, PW-20 Dr. Ramphool Meena, PW-21 Mohd. Alim, PW-22 Naseer Khan, PW-23 Prabhu Lal Meena and PW-24 Mali Ram. Thereafter, accused persons were examined as per the provisions of Section 313 Cr. P. C. They denied the entire prosecution story and also denied their presence at the time of the occurrence and stated that the deceased Kailash and two other persons i. e. Bharat Lal and Ramkesh who were relatives,. used to extort money from the government employees and bus passengers. Thus, they were beaten by the public in which they (the appellants) were not involved. In defence, three witnesses-DW-1 Bhagwati Prasad Gupta, DW-2 Sabudeen and DW-3 Mukesh Mishra were examined. We have heard learned counsel for the accused appellants and the learned Public Prosecutor and have perused the entire record. Pw-20 Dr. Ramphool Meena, Sr. Medical Officer examined Kailash at 8. 30 p. m. on 26. 11. 1999 and prepared the injury report (Ex. P. 22) and found following injuries: " 1. Lacerated wound 4 x 1/2 x 1/3 cm post and lateral part of temporal region of skull caused by blunt weapon with red bright clotted blood and x-ray. 2. Lacerated wound 3 x 1/2 x 1/3 cm on the right side of skull 1 cm above the injury No. 1 caused by blunt weapon and x- ray Advised for nature. 3. lacerated wound 5 x 1/4 x 1/4 cm on the upper occipital region of skull posteriorly caused by blunt weapon and x-ray advised for nature. 4. Bruise and swelling 5 x 4 cm. on the dorsal mid part of left hand-Blunt-x-ray advised for nature. 5. Bruise 7 x 2 c. m. with redness on the antero lateral part of right hip. simple, Blunt. 6. Bruise 8 x 2 and half cm with redness on the mid dorsal part of right hip-simple-Blunt. 7. Incised wound 7 and half x 3/4 cm bone depth on the left side of occipital region of skull-sharp weapon-X-ray advised for nature. 8.Incised wound 2 and half x 1/2 cm bone depth on the post lower part of skull caused by sharp weapon-X-ray adv. for nature. "
(3.) AFTER his death, post-mortem on the body of Kailash was conducted by PW-11 Dr. Suman Dutta, Medical Jurist, SMS Hospital, Jaipur on 27. 11. 1999 and he prepared the post-mortem report (Ex. P. 9) and noted the following external and internal injuries on the person of deceased: 1. Stitched wound 3 cm right temporal reddish clotted blunt. 2. Stitched wound 4 cm right parietal reddish colour clotted blunt. 3. Stitched wound 4 cm right parietal, reddish colour. 4. Lacerated wound 3 cm left temporal 1/4 cm x scalp bone deep reddish colour. 5. Stitched wound 3 cm right temporal reddish clotted blood. 6. Bruise 10 x 3 cm right shoulder reddish blue colour. 7. Two parallel bruise 9 x 12 cm each with a gap of 1/2 cm in between elbow ends reddish colour right flank. 8. Two parallel bruise three in number each 8 x 1/2 cm 7 x 1/2 cm and 8 x 1/2 cm each on right buttock reddish colour with entering gap of 1/2 cm. 9.3 Bruise 10 x 5 cm right leg calf reddish colour dinch deep haemotoma reddish colour. 10. Bruise 2 x 2 cm left hand reddish colour, deep muscle haemotoma. 11. Abrasion 1/2 x 1/2 cm right elbow reddish colour. 12. Abrasion 1/2 x 1/2 cm 2nd, 3rd finger domlly reddish colour. 13. Bruise 4 x 3 cm left down hand reddish colour. 14. Abrasion 1 x 1 cm left knee cap reddish colour. 15. Diffuse swelling right leg middle on direction deep haemotoma. In the opinion of Dr. Suman Dutta, death of Kailash occurred due to severe head injuries which were ante mortem in nature and were sufficient to cause death in ordinary course of nature. It is made clear that the cause of death of Kailash has not been disputed by learned counsel for the appellants. Now, the important question for consideration before us is as to who caused these injuries on the body of Kailash? ;