SHYM SUNDER BYAS, J. - (1.) SINCE these three appeals are directed against one and the same judgment of the Additional Sessions Judge, Sirohi dated July 4, 1980 they were heard together and are decided by a common judgment. Accused Mehriya and Daliya were tried on a charge under Section 302 while accused Bhuri was tried on a charge under Section 302/34, IPC. By the judgment aforesaid, the learned Additional Sessions Judge acquitted the accused Daliya and Bhuriya of the offence they were charged with, but convicted and sentenced them and accused Mehriya as under: JUDGEMENT_410_TLRAJ0_1985.htm
(2.) THE accused have come -up in appeal to challenge their conviction and sentence, while the State challenges the acquittal of accused Daliya and Bhuriya from the offence they were charged with. Briefly stated, the prosecution case, which is short and simple, is as follows. Accused Mehriya and Diliya are father and son while accused Bhuriya happens to be their relative. They are all residents of village Badarpura P.S.Abu Road, district Sirohi. The deceased Shanta was a resident of village Girwar. The distance between these two villages is approximately of two miles. Nearly ten years before the occurrence, the wife of accused Mehriya deserted him and started living with the deceased Shanta in his village. This sowed the seeds of discordance between Mehriya and Shanta. Accused Mehriya started nursing an ill -will against Shanta. In the night between ]0th and 11th April, 1979, the deceased Shanta along with PW 6 Roopa went to attend the 'Gor' in the fair held at Vagera Mata. Many other persons from village Girwar were also present there in the fair. There was a huge collection of nearly five -hundred persons in the fair. The three accused persons Mehriya, Daliya and Bhuriya were also there. After mid -night, Roopa and the deceased Shanta left the fair to return to their village. When they reached near the bus stand of village Chandala, they left the tarred -road and took -up the Kacchi Pagdandi, which goes to their village. They had hardly covered a distance of twenty -five paces that the three accused persons came and restrained them from proceeding further. Accused Mehriya had a sword while accused Daliya had a Lathi. Accused Bhuriya was empty handed. Accused Mehriya and Daliya made an assault on Shanta and struck blows to him with their weapons. Accused Mehriya inflicted blows on the head, neck and other parts of Shanta. As a result, Shanta sustained multiple injuries and he fell down. Accused Mehriya still then did not leave him and struck two or three more blows with sword to him. Roopa (PW 6) raised cries and shouted for help. The accused managed to run away. There was, profuse bleeding from the wounds of Shanta and clothes he was wearing got drenched with it. Shanta succumbed to the injuries instantaneously on the spot. A few minutes later, Kaliya (PW 7) of village Girwar happened to pass that way. Roopa (PW 6) narrated the incident to him and asked him to inform the members of the family of Shanta. Kaliya and to his village and contacted Shanta's nephew Chamna (PW 4), Kaliya also contacted the Sarpanch. who advised him to approach the police. When Chamna (PW 4) was apprised of the incident he collected some persons of his village and went to the place of occurrence. They there found Shanta lying dead and Roopa (PW 6) sitting by his side. Roopa narrated the incident to him as to how the occurrence had taken place and how Shanta was put to death by the accused persons Chamna left the place and reached Police Station, Abu Road at about 7.00 a.m. on April 11, 1979, where he verbally lodged report Ex. P 6 of the occurrence. The police registered a case and proceeded with investigation. The Station House Officer Harisingh (PW 10) arrived on the spot. He inspected the site and prepared the site plan Ex. P 11. He also prepared the inquest report of the victim's dead body. Blood stained soil from the place of occurrence was seized and sealed. The post -mortem examination of the victim's dead body was conducted at about 1.30 p m. on April 11, 1979 by PW 11 Dr. Gupta, the then Medical Officer Incharge, Primary Health Centre. Abu Road. The doctor noticed the following injuries on the victim's dead body : (1) Incised wound 9' x 4' 2 -1/2' over left side of neck oblique in direction extending on front up to middle of chin upwards, 1/2' below left ear, then near the back of the neck up to 1' right to mid -line cutting blood vessels, tissues, muscles, trachea and bones i.e. Mandible and vertebrae. The margins were regular: (2) Incised wound 5' x 1/2' x 2' 1' below the injury No.1. The margins were regular and clotted blood was present; (3) Incised wound 4 -1/2' x 1/2'xl' oblique over left temporal region of skull, Middle part of injury lay on left ear cutting the ear in the middle into two portions, cutting tissues, blood vessels and ear; (4) Lacerated wound 1' x 1/4' x 1/2' behind the left ear; (5) Incised wound 2 -1/2' x 1' x 1/2' on the middle of right forearm cutting the bone about 1/4' superfically; (6) Incised wound 1 -1/2' x 1' x 1/2' over base of left index finger cutting the bone and blood vessels; (7) Incised wound 5' x 2 -1/2' x 1 -1/2' over left shoulder joint cutting blood vessels, tissues and bone; (8) Lacerated wound 1/2' x 1/4' x 1/2' and 1/2' x 1/4' x 1/2' with a gap of 1/2' over left parietal region of skull, 1 -1/2' left to midline; (9) Abrasion 2' x 2' over left knee joint; (10) Lacerated wound 1' x 1/2' x 1/2' over right frontal area of skull, 1' above the middle of right eye brow.
(3.) THE injuries were ante -mortem. Injuries No. 1 to 3 and 5 to 7 were stated to have been caused by some sharp edged weapon like sword while the remaining injuries opined to have been caused by some blunt object. In the opinion of Dr. Gupta, the cause of death of Shanta was shock and haemorrhage due to multiple injuries. He was also of the opinion that injuries No. 1, 2 and 3 were individually and collectively sufficient in the ordinary course of nature to cause death. The post -mortem examination report prepared by him is Ex. P 20. The blood stained clothes of the deceased were seized and sealed after the post -mortem examination was over. Accused Bhuriya and Daliya were arrested on April 11, 1979. In consequence of the disclosure statement made by them, a Lathi and a sheath of the sword were recovered. Accused Mehriya surrendered himself at about 11 a.m. on April 11, 1979 before the Investigating Officer. He was then having a sword with him. The clothes he was wearing were also found stained with blood. He was arrested and aword and his clothes were seized and sealed. The articles were sent for chemical examination. As per reports Ex.Ps 18 and 19 received respectively from the State Forensic Science Laboratory, Jaipur and the Serologist, the clothes of accused Mehriya and of the deceased Shanta were found stained with human blood. On the completion of investigation, the police submitted a challan against the three accused -appellants in the Court of the Chief Judicial Magistrate, Birchi, who in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed a charge under Section 302, IPC against accused Mehriya and Daliya while a charge under Section 302/34 IPC against accused Bhuriya. The accused pleaded not guilty and faced the trial. They denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. According to them, they have been falsely implicated. In support of its case the prosecution examined 14 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge held the charge under Section 302, IPC proved as against accused Mehriya. As regards accused Daliya and Bhuriya, he held that they did not share a common intention with accused Mehriya to kill Shanta. He was of the opinion that as accused Mehriya was armed with sword, it can be well inferred that accused Daliya and Bhuriya shared a common intention with accused Mehriya to cause grievous hurt to Shanta. He, therefore, acquitted them of the offence under Section 302 or 302/34 but convicted them under Section 326/34, IPC. The three accused were thus convicted and sentenced as mentioned at the very outset. The accused persons challenge their conviction while the grievance of the State is that accused Daliya and Bhuriya were wrongly acquitted of the offence under Section 302/34, IPC.;