V.S. Dave, J. - (1.) This appeal is directed against the judgment of Additional Sessions Judge No, 2, Alwar, dated September 7, 1981, whereby he convicted and sentenced the accused-appellants as under : 1. All the accused-appellants were convicted for offence under section 302/149 IPC and sentenced to imprisonment for life and a fine of Rs. 3000/- each, in default whereof to further undergo rigorous imprisonment for one year. 2. All the accused-appellants were convicted for offence under section 148 IPC and sentenced to imprisonment for two years and a fine of Rs. 500/-each, in default whereof to further undergo rigorous imprisonment for three months. 3. The accused-appellant Jumme Khan was convicted for offence under section 323 IPC and sentenced to rigorous imprisonment for one month and a fine of Rs. 100/-, in default whereof to further undergo rigorous imprisonment for seven days. All the substantive sentences were ordered to run concurrently.
(2.) Brief facts giving rise to this case are that on October 20, 1980 at 6.30 p.m. a report was lodged at police station Rajgarh scribed by Vijal Singh at the instance of Smt. Shitabi, PW. 3 and Smt. Deeni PW. 6. This report was presented at the police station by one Soorajmal. The original document scribed by Vijal Singh is Ex.P. 2 while the report taken down in proforma is Ex.P. 25. According to the report a dispute took place in village Bileta between Mussa Khan Meo, Atru Khan Meo, Mallu Khan Meo, Jumme Khan, Subbe Khan and Chhajju. This incident clearly took place at the house of Mussa Khan ; wherein Dhundhal Khan and Sardar Khan lost their lives. The dead body of both the deceased was lying on the spot. The incident is alleged to have been seen by Haiti Khan Meo, Nadru, Kesar Singh etc. who were present at the place of the incident. It was mentioned in the report that report is taken down at the instance of Smt. Shitabi and Deeni wives of Dhundhal and Sardar deceased respectively. On receipt of this report a case was registered for offence under sections 302/147/148/149 IPC. Soorajmal and Rehmat who had taken the report to the police station were interrogated by the police and on interrogation they said that they had also reached the place of occurrence soon-after the incident. They stated that Mussa and Dhundhal were real brothers and are neighbour. They got an engine fitted in their well in partnership and some dispute arose regarding distribution. It is because of this that the incident had taken place in which Dhundhal and Sardara lost their lives. The police sent the deceased Dhundhal and Sardara for post-mortem examination which was conducted by Dr. Rajendra Singh Kaushik, PW. 19, who was In-charge, Medical Officer, Primary Health Centre, Malakheda. He found the following injuries on the person of the deceased Sardara : External Injuries : 1. Lacerated wound with underlying fracture of bone 3" x 1/4" x 3" on skull right side on temporal bone 4" from pinna of right ear. 2 Lacerated wound with underlying fracture of occipital bone 4" x 1" x 3" on skull back side on occipital bone brain matter is coming out front side of injury. 3. Lacerated wound with underlying fracture of occipital bone 4" x 1" x 4" on skull back side on occipital bone. Brain matter is coming out from side of injury, 4. Lacerated wound 3" x 1/4" x 2" at the base of skull at mid line 61/2" from right ear lobulte. 5. Bruise 4" x 1" at bass of skull oblique direction. 6. Lacerated wound 2" x 1" x 2" on right temporal bone 3" from pinna of right ear. 7. Lacerated wound 31/2" x 1/4" x 3" on left side of left temporal bone. Part of temporal bone is coming out from side of injury. 8. Abrasion 1" x 1/2" on the base of index finger of left hand. 9. Abrasion 11/2" x 1/2" on the back of palm of right hand. 10. Multip le bruises 4" x 11/4" incised oblique direction on back right side on right scapula region. 11. Multiple bruises 3" x 1" incised to oblique direction and one is transversely direction on left scapula region. Internal Injuries : 1. Multiple fracture of occipital bone. Fracture of temporal bone of left side. Fracture of temporal bone of right side. Brain matter is out from the site of fracture of occipital bone at two places, Membranes are conjusted. Blood clots present in between skull bone and membrane. 2. Thorax Walls ribs and cartilages. Fracture of fifth rib posteriorly on chest wall on left side. Right lung conjusted, left lung conjusted, Heart right side full & left side empty. 3. Abdomen Stomach and its contents, water contents were present. Small intestines and their contents. Undigested food particles present. In large intestines gases were present Bladder was empty. Organ of' generation present. No product of conception and no mark of injury. In the opinion of the Doctor death occurred due to head injury leading to shock, comma and death. He found the following injuries on the person of deceased Dhundal : 1. Lacerated wound 31/2" x 1/4" x 1" on right temporal bone on skull 21/2" above pinna of right ear,direction. 2. Incised wound 3" x 1/2" x 1" on occipital bone 71/2" from pinna of left ear transversely direction. 3. Incised wound with underlying fracture of occipital bone 21/2" x 1/4" x 11/2" on occipital bone 7" from pinna of right ear, obliquely direction. 4. Penetrating wound 1" x 1/2" x 1" on the base of skull at mid line, obliquely direction. 5. Penetrating wound with fracture of underlying maxilla bone 11/4" x 1/2" x 2" on face left side 2" from left eye towards left ear. 6. Penetrating wound with underlying mandibular bone fracture 11/4" x 1/2" x 11/4" incised 2" below left ear lobule. 7. Bruise 4" x 11/2" on left chest wall, 1" below left nipple with fracture of underlying 5th, 6th & 7th rib anteriorly, 8. Multiple bruises 3" x 1 incise on back of right side. Internal injuries : 1. Granium & spinal cord region:- 1. Fracture of occipital bone of skull. Membranes are congested, Blood clots are present in between skull bone & membrane. 2. Thorax region:- 1. Walls ribs and cartilages-5th, 6th & 7th rib fractured, on chest on left side anteriorly. Right & left lung gorged with blood. Heart right side full & left side was empty. 3. Abdomen 1. Small intestines & other contents-undigested food particles were present. In large intestines matter present. Bladder was empty. Organ of generation present. No mark of injury of genitals & no product of conception. In the opinion of the Doctor death occurred due to multiple injuries leading to haemorrhage, shock and death. During the course of investigation the investigating officer recorded the statements of Mst. Shitabi and Mst. Dhanni on October 21, 1980 and it is borne out from documents filed under section 173 Cr.P.C. that investigating officer also interrogated and recorded the statements under section 161 Cr.P.C. of Harphool PW. 12, Ramjilal PW. 13 and Aniya. After completion of investigation the police submitted charge-sheet against six persons who were committed to Sessions for trial. At trial the learned Sessions Judge framed charges against the accused-appellants alongwith accused Mussa since acquitted for offence under sections 148 & 302 IPC in the alternate Section 302/149 & 323 IPC for inflicting simple injuries on the persons of Gabbu. Accused denied the charges and claimed to be tried.
(3.) The prosecution in support of its case examined 23 witnesses and the accused none. They denied the occurrence when examined under section 313 Cr.P.C. The learned Sessions Judge after appraisal of the evidence acquitted the accused Mussa Khan of all the charges levelled against him, but convicted and sentenced the accused-appellants as indicated above. Aggrieved by the aforesaid conviction and sentence this appeal was preferred.;