MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 21. 6. 2002 passed by the learned Additional Sessions Judge, Banswara convicting the first appellant Shankerlal of offence under Section 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 5000/- and in default, to further undergo two years' rigorous imprisonment. Appellants Suresh alias Sanju and Lalu have been convicted of offence u/s. 302/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 5000/- each and in default, to further undergo two years' rigorous imprisonment.
(2.) THE facts as emerged during the trial are that the wife of deceased Mst. Geeta (P. W. 3) is the daughter of third appellant Lalu and sister of first and second appellants Shankerlal and Suresh. Geeta had married to one Ravi at Indore. Out of the said wedlock, she gave birth to three children. It is alleged that Ravi was drunkard and he used to beat Mst. Geeta, as such, she deserted him and contracted second marriage with deceased Ajai Singh Rathore. THE parents and brothers were not happy with the second marriage. it is alleged that on 8. 1. 2001 at about 8. 50 p. m. , P. W. 2 Abid gave an oral report to P. W. 12 Rajendra Singh, ASI, to the effect that on the same day, while he along with P. W. 7 Babu were in a marriage procession and had reached near Chhatripada, they noticed deceased Ajai Singh being assaulted by the assailants Shanker, Sanju and Lalu. Appellant Shankerlal inflicted injury by a weapon known as `gupti' on the back of deceased Ajai Singh, on account of which he fell down. THEy intervened and rescued him. THE brother of deceased Ajai Singh viz. , P. W. 8 Manoj Singh Rathore also arrived on the spot. THEy informed of the incident to P. W. 3 Geeta, wife of deceased Ajai Singh. Ajai Singh was brought by them to the hospital for treatment. It was also disclosed that the marriage of Geeta with Ajai Singh was a Court-marriage. Her parents were not happy with this marriage. It was also stated that Sanju and Lalu also gave beating to deceased by kicks and fists. On this information, Ex. P. 3, the police registered case for the offence u/ss. 307, 341, 323 and 34 IPC. P. W. 12 Rajendra Singh also recorded the statement of injured Ajai singh vide Ex. P. 18. Ajai singh succumbed to the injuries, as such, the police added the offence under Sec. 302/34 IPC. After usual investigation, the police laid the charge-sheet against the appellants for the offence u/s. 302/34 IPC. THE appellants denied and charges levelled against them and claimed trial. THE prosecution adduced oral and documentary evidence to prove the charges levelled against them. THE appellants denied the correctness of the evidence appearing against them. However, the learned trial Court having found the prosecution case proved, convicted and sentenced the appellants in the matter stated above. Challenging the conviction, it is contended by the deceased counsel for the appellants that the entire case rests on the testimony of two eye-witnesses viz. , P. W. 2 Abid and P. W. 8 Manoj Singh Rathore. A careful reading of the testimony of the said eye-witnesses shows that they have not witnesses the incident. Learned counsel has also criticized the alleged dying declaration recorded by the police. In alternate, it is submitted that the case against the appellant Shankerlal does not travel beyond Section 304 Part II IPC and as against Suresh and lalu, the offence u/s. 323 IPC. Learned Public Prosecutor has supported the judgment of the trial Court. We have scrutinized the entire evidence on record and considered the rival contentions. P. W. 1 Dr. Omprakash Upadhyaya conducted the post-mortem of the dead body of deceased Ajai Singh vide Ex. P. 2. He noticed the following injuries on his person: 1. Lacerated wound 2 x 1/2cm left side forehead; 2. Lacerated wound 5 x 1-1/2 cm bridge of nose; 3. Abrasion with bruise 3 x 2cm left side chin; 4. Abrasion 1 x 1-1/2cm Rt. side neck; 5. 2 abrasion 1 x 1/2cm on left side neck 3cm apart; 6. Abrasion 3 x 2-1/2cm Rt. forearm middle 1/3"; 7.Abrasion 2 x 1cm left side knee; 8.Abrasion 1 x 1/2cm medial malleolus Lt; 9.Abrasion 1 x 1/2cm Rt foot medially; 10. Perforating incised wound, elliptical in shape 3 x 2- 1/2 cm, margins were clean cut and inverted margin with bruising situated at Rt. infra scapular region at mid scapular line (wound of entry ). Direction of the stab wound was obliquely extending from 6th inter costal space and perforating the upper part of Rt. lobe to left lobe posteriorly perforating the lung Rt. lower 1/3rd, exist of stab wound at antr. Abdominal wall size 2 x 1cm left side infra region of chest below 11th internal costal rib mid clavicular line (nearly 30cm in length) These was collection of about 2 liters blood in thoracic cavity; 11. Abrasion 6 x 1/2cm left scapular region of back; 12. Abrasion 3 x 1/2cm left infra scapular region of back; 13. Abrasion 3 x 1/2cm lower region left side of back; 14. Abrasion 2 x 1cm lumbar region of back; 15. Abrasion 1 x 1/2cm Rt scapular region. " As per the doctor, all the injuries, except injury No. 10, were caused by blunt weapon, which were reported to be ante mortem in nature. In his opinion, the cause of death was haemorrhagic shock as result of injuries to lever and lungs.
(3.) THUS, the prosecution has succeeded in establishing that Ajai Singh died of homicidal death. The prosecution has examined P. W. 2 Abid, P. W. 7 Babu alias Nazmuddin and P. W. 8 Manoj Singh Rathore as the witnesses of occurrence. P. W. 2 Abid deposed that on 8. 1. 2001 while he alongwith his friend P. W. 7 Babu was passing through the locality known as Chhatripada, he noticed some people quarreling. They were assaulting Ajai Singh. Ajai Singh had fallen down. Thereafter, they went to call his brother Manoj Singh Rathore. They took Ajai Singh to hospital. He gave an oral information to the police vide Ex. P. 3. He also stated hat he had known Ajai singh, as he was a regular visitor of the Club. He died in the hospital. In the cross-examination, he admitted that he had not seen appellant Shanker causing injury by `gupti'. He also admitted that when he reached on the spot, all the three accused persons had run away. he also admitted that he had seen `gupti' in the hands of Shanker. he further admitted that he had not seen appellant Shanker inflicting fatal injury. He further admitted that he had not seen appellants Sanju and lalu Assaulting the deceased. He also admitted that Ajai Singh became unconscious on the spot itself. He also admitted that he had not known the appellants prior to the date of incident. he further admitted that the names of the appellants were disclosed to him by P. W. 3 Geeta. Lastly, he admitted that he had not seen the appellants ever before. He stated thus: ----------esusa eqyfteku dks vkt ls igys ugha ns[kk Fkka** ;