K. BHATNAGAR, J. - (1.) APPELLANT Dama was tried by the learned Sessions Judge, Udaipur u/s. 302 I. P. C. By the judgment dated April 10, 1980, the learned Sessions Judge convicted the appellant Dama for the offence u/s. 302 I. P. C. and sentenced him to imprisonment for life and a fine of Rs. 500/-, in default of payment of fine to undergo one years' R. T.
(2.) BRIEFLY stated, the facts of the case are as under:- On October 21, 1979, the day next to Deewali deceased Bhera son of Kanha Mina, appellant Dama and seven or eight other persons assembled beneath a mango tree and after singing the songs known as 'hidke geet'. Daula put off the 'dhoti' of Dalla (P. W. 2) which annoyed Dalla and be reprimanded him for doing so. Bhera son of Kana gave two or three kicks to Dalla. At this appellant Dama rushed near them and contorted the neck of deceased Bhera son of Kanha and threw him aside. Bhera son of Kanha died instantaneously. Bhera son of Poonja, also present there, went to the Sarpanch who scribed the report and sent him to the Police Station. Bhera son of Poonja took that report to the police station Salumber and presented it before S. H. O. Nathusingh (P. W. 6) on October, 22, 1979 at 7. 00 A. M. The S. H. O. registered the case and proceeded for investigation. On reaching the site, he conducted necessary investigation. Dr. R. C. Sharma, Medical Officer, Primary Health Centre, Salumber conducted the autopsy over the dead body and noted four bruises and certain abrasions on the neck of the deceased. He also noted bruises and abrasions on other parts of the body of the deceased. The postmortem examination report prepared by the Doctor is Ex. P/7. In the opinion of the Doctor, cause of death was throttling and mode of the death was asphyxia. After completion of necessary investigation, chargesheet against the appellant was filed in the Court of Munsif Magistrate, Salumber. The learned Magistrate finding it to be a case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge, Udaipur to face his trial there. The learned Sessions Judge charge sheeted the appellant for the offence u/s. 302 I. P. C. On his plea being recorded, the appellant denied the indictment and claimed to be tried. Seven witnesses were examined by the prosecution to substantiate the case against the appellant. The appellant in his statement under section 313 of the Code of Criminal Procedure denied the allegations levelled against him and stated that Dalla and Daula were quarreling with each other and in that Bheru got crushed by the feet of the peoples. The learned Sessions Judge placed reliance on the prosecution evidence and convicted and sentenced the appellant as stated earlier. Feeling aggrieved by his conviction and sentence, the appellant has preferred this appeal in this Court through the Superintendent, Central Jail, Udaipur. As the appellant was unrepresented, Mr, Rajendra Singhvi was appointed Amicus-Curiae to plead on his behalf. We heard Mr. Rajendra Singhvi, learned Amicus-Curiae and Mr. L. S. Udawat, learned Public Prosecutor for the State and carefully examined the record of the case. Upon perusal of the evidence on record, we are convinced that prosecution has established the case by convincing evidence that Bhera son of Kanha met his death at the hands of the appellant Dama.
(3.) LEARNED Amicus-Curiae confined his arguments to the point that even if the prosecution evidence is taken to be true, still offence u/s. 302 I. P. C. is not made out and the conviction of the appellant on that count deserves to be set aside. Mr. Singhvi emphatically argued that from the eye witnesses it is evident that the people assembling beneath the mango tree were cutting jokes with each other and Bhera son of Kanha deceased gave kicks to Daula. That Dama appellant went near them and contorted the neck of Bhera son of Kanha and threw him aside. According to Mr. Singhvi, the appellant had no intention to commit murder of Bhera son of Kanha nor had he any intention to cause such bodily injury likely to cause his death. Learned Public Prosecutor admits that there was no serious matter or quarrel at the time. He however, supports the conviction u/s. 302 I. P. C. on the ground that an innocent man has lost his life. In order to appreciate the arguments advanced by the learned Amicus-Curiae, the statements of the eye witnesses will have to be seen carefully. ;