M.L. Joshi, J. - (1.) ACCUSED Khetsingh, Seshkaran, Umedsingh and Mohan singh were tried by the Sessions Judge, Merta, under Section 302 I.P.C. or, in the alternative, under Section 302 read with Section 34 I.P.C. for the murder of Gordhan. Khetsingh was convicted of culpable homicide not amounting to murder under Section 304 Part I I.P.C. and toe remaining three accused under Section 304 Part I lead with Section 34 I.P.C. and each one of them was sentenced 10 undergo rigorous imprisonment for seven year, and to pay a fine at Rs. 300/ -. Dissatisfied with the order of the learned Sessions Judge, Merta, the accused have preferred an appeal challenging their conviction and sentence and me State have filed an appeal against the acquittal of toe accused for the offence under Section 302 or Section 302 read with Section 34 I.P.C. As both these appeals arise out of the same judgment, they are being deposed of together.
(2.) THE prosecution story in this case is to the effect that one Gordhan who was a victim and who died as a result of the injuries in the incident in question on the day of the Holi festival, that is, 28 -2 -72, at about 8 p.m. in the company of PW 6 Bhagirath alias Bhagaram, PW 7 Jalamsingh PW 10 Andaram and PW 11 Kansingh, all residents of village Bhawara, went to neighbouring village Kalvi on a chhakra, that is, a cart driven by camel. They wet to a village Kalvi that night to pay respects to the Thakur of Kalvi and also to request him to mediate and make it sorts for compromise in respect of a criminal complaint which had been lodged by Gordhan against the accused. The Thakur of Kalvi was not found there as he had gone out. Gordhan and his companions met Thakur's uncle Shyamsingh and about 11 p.m. left village Kalvi. On way back to village Bhawara, when Gardhan and his companions were passing near Miyaninadi situate at the distance of 200 pawandas from village Bhawala, the four accused armed with lathes and who were lying in wait, came near the chhakra. Umaidsingh stopped the chhakra by holding the string of the camel. Khetsiagh dealt a blow with lathi on the head of Gordhan as a result of which Gordhan fell down from the chhakra. The four accused thereafter showered lathi blows causing several injuries to Gordhan PW 6 Bhagirath intervened to rescue Gordhan, but he too received an injury on his little finger. When the accused stopped beating Gordhan and Sad away from toe scene of the occurrence, PW 6, 7, 10 and 11 brought Gordhan to his house in the state of unconsciousness and disclosed the names of the assailants to his wife Mst. Radha P.W. 13 and his cousin or other PW 12 Madanlal. On the next morning, Gordaan was taken to Kuchera Dispensary but no doctor was available there. He was therefore taken to the Government Hospital Nagaur. Gordhan, however, breathed his last on the way between Kuchera and Nagaur. PW 13 Mst. Radha, who was accompanying Gordhan went to the Police Station at Nagaur and verbally lodged the First Information Report which was recorded by PW 15 Ratansingh, SHO, Police Station, Nagaur. The post -mortem examination on the dead body of Gordhan was conducted by PW 5 Dr. Parasram at Nagaur Hospital on 29 -9 -72. The doctor found the following external injuries on the corpse of Gordhan: 1. Punctured wound 1/3" x 1/3" x 1 1/2" on the left leg medially middle. 2. Bruise 3" x 1/2 on medial side of left leg horizontally. Bruise 3" x 2" on posterior side of left leg middle. 3. BRUISE 3" x 2" on left thigh posteriorly middle 1/3." 4. BRUISE 3" x 1" on posterior side of left thigh lower 1/3", Bruise 2 1/2" x 1/4" horizontal on medial aids of right ankle 5. BRUTES 3" x 1/2" oblique and vertical on posterior -medial side or tight leg lower 1/3". 6. BRUISE 3/4" x 1/4" x 3 1/2" x 1/2" horizontal on right call area. Bruise three parallel with a gap of 1/3" on posterior side of right leg upper one -third near knee 2" x 1" each 7. BRUISE 5" x 1" on medial side of right knee oblique. 8. THREE bruises oblique on posterio -medial side of right thigh lower 1/3" x 3'x 1" each with a gap of 1/2" Bruise 2" x 1" of right leg upper 1/3" laterally. 9. PUNCTURED wound 1 1/2 x 1" x 2" deep on right tubial tuberosity. 10. BRUISE 3" x 2" on the left fore -arm posteriorly lower one third just above wrist, and also lacerated wound 1/2" x 1/2" x bone deep on posterio -medial end. Bruise 2" x 2" on front side of left fore -arm lower one -third. 11. BRUISE 3" x 1" below left ear and blood from ear. 12. BRUISE 1" x 1/2" on posterio -lateral side of neck left side. Bruise.'2" x 1/2" below occipital protuberance on left side. 13. LACERATED wound 2" x 1/2" x bone deep on right parietal region anterior middle and side by side. On opening the dead body, the doctor found the following fractures: 1. Fracture of lower end of right tibia medial side under injury No. 8. 2. Fracture of right tibia upper end under injury No. 13. 3. Fracture of left radius end left ulna under injury No. 14. 4. Fracture of both parietal bones from right to left parieto -temporal joints at the anterior 1/3 and posterior Order 2/3 of parietal bones under injury No. 19. According of the doctor, the cause of death of Gordhan was coma and shock due to multiple fractures and injuries on the body, He further opined that injury No. 19 with corresponding fractures was individually sufficient in the ordinary course of nature to cause death. The doctor further deposed that except external injuries Nos. 1 and 13. all the injuries were caused by lathis. He further stated that injuries Nos. 1 and 13 could be caused by pointed nail of any pointed object fitted to a cart.
(3.) ON 2 3 72 PW 6 Bhagirath was examined by PW 4 Dr. Pratapsingh at Kuchera Dispensary. The following injuries were noticed on his person by the doctor: 1. Haematoma with bruise 1/2" x 1/2" back of left second interphalangeal joint of left ittle finger. 2. Abrasion 1/4" x 1/4" on dorsum of first phalangeal of fourth fingers of left hand. Both the injuries were simple and were caused by a blunt weapon. Since the incident took place within the jurisdiction of the Police Station, Khatu, , all the relevant papers along, with the articles recovered by the SHO, Nagaur, were forwarded to the SHO, Kbatu. The latter arrested accused Mohansingh on 3.3.72, Khetsingh and Seshkaran on 9.3.72 and Umedsingh on 10.3.72. All the four accused on being interrogated by SHO gave info, mat ions leading to the discovery of the lathis. In pursuance of the information, a lathi was recovered at in intake of each accused. The prosecution, however, failed to connect those lathis with the crime. None of them was found stained with blood and none of the witnesses identified them as having been used by the accused at the time of the incident The evidence relating to the discovery of the lathis, in the circumstances, was of no avail to the prosecution and the same was rightly ignored by the learned Sessions Judge.;