MILAP CHAND JAIN, J. - (1.) THESE two appeals through jail arise from the judgment dated July 18, 1974 of the Additional Sessions Judge, Jalore. The learned Additional Sessions Judge, Jalore convicted the appellant Adiya of the offence Under Section 302 IPC and sentenced him to suffer imprisonment for life. The appellant Veesa was found guilty of the offence Under Section 302/34 IPC. He, too was awarded sentence of imprisonment for life. Both of the them were also sentenced to a fine of Rs. 100/ - in default of payment of fine to under go one month's rigorous imprisonment.
(2.) THE prosecution story briefly stated is that on April 7, 1973 at about 6 P.M. the informant Narsa (PW 2) was working in his field along with two labourers Amariya and Lachhiya, Deceased Tariya visited the field of Narsa in connection with fetching water. He brought with him an earthen pitcher and asked Narsa to run the well so that he may fill water in his pitcher. Narsa thereupon told him that he will just start his well. At that point of time Visa visited the field of Narsa, and demanded Rs. 4/ - from Tariya which were due to him for the labour done by Veesa for Tariya. Thereupon, Tariya replied that the he will make payment in the morning. Visa told let it be a charity. It appears that these words infuriated Tariya and he caught hold of Veesa by his shirt and told him to accompany him for making payment. At this stage Adiya also appeared and on seeing him the accused Veesa caught hold of Tariya in his arms and exhorted to inflict a blow on Tariya. Thereupon, Adiya inflicted a blow on his head with the log of wood, which was in his hand. Tariya fell down as a result of the blow. When the accused Adiya raised his hands again for making a blow on Tariya second time, the witness Narsa intervened and caught hold of the log of wood. Thereafter, the family members of the accused persons as well as the father of the deceased viz., Chimna appeared. Narsa went to the Police Station Ummedpur lodged and a report Ex. P 2 at 10.00 P.M. The injured Tariya was first removed to Takhatgarh Hospital, where he was examined by PW 1 Dr. Shyam Singh. Thereafter, Tariya was removed to Jodhpur Hospital where he succumbed to the injury. Dr. P. Dayal conducted the autopsy of the dead body of Tariya. We may mention the injury which was found on the person of the deceased Tariya by PW 1 Dr. Shyam Singh, which is as follows: (1) A lacerated wound of about 1 -1/4' x 1/8 in the left half of the scalp of full skin thickness in fronto parietal region about 5' away from bridge of the nose. There was slight bleeding from the wound. After sustaining of the injuries, the injured remained unconscious and continued to remain unconscious till his death. In the autopsy, Medical Jurist Dr. P. Dayal noticed the following injuries: (1) Lacerated wound 3 cm. long it was stitched and was skin deep. It was stitched 14 cm. from the bridge of nose on left side of scalp; (2) There was a lumber puncture mark; (3) Haemotama over the whole surface of skull on left side and in vertex region of the skull; (4) Comminuted fracture of left temporal and parietal bone. The fracture continued as fissured fracture in the frontal region along the fronto parietal suture to the right side; (5) Extra dural Haemotama over the left temporal region of brain; (6) Extra dural haemotama over the right parietal region of brain; (7) Fissured fracture about 1.5 cm. long in the anterior crevical fessa on left side; (8) Fissured fracture about 1 cm. long in the anterior cervical fessa on right side. After usual investigation, charge sheet was presented against the accused -persons, who were committed for trial to the court of Addl. Sessions Judge, Jalore. The learned Addl. Sessions Judge charged the accused Adiya of the offence Under Section 302 IPC and the accused Veesa of the offence Under Section 302/34 IPC. The accused -persons denied the charge and claimed to be tried. At the trial, the prosecution examined as many as 6 witnesses. The statements of the accused persons were recorded, in which, they denied the prosecution case. Adiya in his statement stated that witnesses have falsely implicated them. His brother Veesa is handicapped. His both arms do not work since birth. Similar is the statement of the accused Veesa. On the basis of the evidence of PW 2 Narsa and PW 3 Amariya coupled with the medical evidence, the learned Additional Sessions Judge found the accused Adiya guilty of the offence Under Section 302 IPC and accused Veesa of the offence Under Section 302/34 IPC. We have heard Shri Doonger Singh, learned counsel for the appellants and Shri L.S. Udawat, learned Public Prosecutor for the State.
(3.) MR . Doonger Singh, learned counsel for the appellant submitted that the appellant Veera has been wrongly found guilty of the offence under Section 302/34 I.P.C. The evidence relating to exhortation assigned to him consisting of Narsa and Amariya is discrepant. What exhortation was given by the accused Veesa, the version given by the witness Narsa in his trial statement in examination -in -chief stands completely negatived by the version of the FIR and by the version given by this witness in his previous statement (Ex.D. 1) recorded under Section 164 Cr.P.C. Even in Ex. D. 1 in cross -examination he categorically stated that the accused Veesa did not exhort to inflict a blow on the head of Tariya. Even exhortation assigned to Veesa by the witness Narsa is to cause a blow. He submitted that even witnes Amariya does not support Narsa on the version as appearing in the examination -in -chief. Besides that, Mr. Doonger Singh also pointed out that looking to the physical condition of the arms of Veesa, it was not possible for him to hold the victim Tariya in his arms. He also pointed out that the evidence of exhortation has been considered to be a very weak type of evidence by the Courts. Apart from that, so far as the present case is concerned, the evidence of Narsa is rendered incredible because of his different version at different stages and Amariya too, has not supported him.;