SHARMA, J. - (1.) PREM Singh and Manohar Singh, the appellants herein, and one Sayar Singh were put to trial in Sessions Case No. 101/2001 (116/1998) before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Learned trial Judge vide judgment dated November 26, 2001 convicted the appellants PREM Singh and Manohar Singh for the offence under Section 302/34 IPC and sentenced them to suffer imprisonment for life and fine Rs. 5000, in default to further suffer three months rigorous imprisonment.
(2.) ACCORDING to prosecution story Nahar Singh (now deceased)was beaten up in the intervening night of June 4 and 5 1998 in village Dhamora. When Inder Singh real brother of Nahar Singh, received information of the incident in the morning of June 5, 1998, he rushed to village Dhamora and found Nahar Singh lying injured behind the shops of Jagdish Singh Shekhawant. On being enquired Nahar Singh informed that Manohar Singh, Prem Singh (appellant) and five seven other persons inflicted blows on his person with Lathis and Iron-rods and thrown him behind the shop of Jagdish Shekhawat. Whole night he was crying but nobody came near him. Inder Singh thereafter lodged written report at 10 AM with the police station Gudha Gorji where a case was registered under Sections 147, 341 and 323 IPC and investigation commenced. During the course of investigation injured Nahar Singh succumbed to his injuries and section 302 IPC was added. Dead body of Nahar Singh was subjected to autopsy, statements of witnesses were recorded by the police, necessary memos were drawn and the appellants were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Charge under Section 302 read with 34 IPC was framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence and one witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard learned counsel for the parties and with their assistance weighed the material on record. Death of Nahar Singh was undeniably homicidal in nature. As per post mortem report (Ex. P. 13) following antemortem injuries were found on the dead body:- 1. Diffuse swelling all over (L) foot and ankle on exploration fracture of (L) medial malleolus 2. Contusion 8 x 5 cm on (R) ankle medial side on exploration hematoma of same size 3. Contusion 10 x 3 cm (R) leg middle 1/3 on exploration hematoma of same size. 4. Contusion 10 x 3 cm with an abrasion of 1 cm diameter over it on (R) leg on exploration hematoma of same size. 5. Diffuse swelling all over (L) hand dorsum side. On exploration fracture of 3rd and 4th metacarpal bones. 6. Diffuse swelling all around lower 1/3 of (L) forearm, on exploration fracture of lower end of (L) radius. 7. Diffuse swelling all over (R) hand dorsum side, on exploration fracture of 2nd metacarpal bone. 8. Contusion 20 x 8 cm in (L) scapular & interscapular region, on exploration fracture of medial border of scapula same. 9. Contusion 15 x 6 cm on (L) side of back of chest placed obliquely in lower 1/2 of chest on exploration fracture of 8th and 9th rib at lateral angle seen. 10. Contusion 8 x 3cm on (L) side of back of chest just below injury No. 9 on exploration fracture of 10th rib at lateral angle on further exploration (L) lung found collapsed and there is a laceration of 3 x 3 cm in (L) pleura and lung lower lobe lateral side. 11. Contusion 15 x 3 cm on back of (R) side of chest placed horizontally. 12. Contusion 12 x 3 cm in (R) inter scapular region. 13. Contusion 10 x 3 cm in (R) scapular region. 14. Fullness all over upper part of abdomen with two abrasions each of 5 x 2 cm in (R) Hypocondrium. 15. Abrasion 2 x 2 cm in (R) Hypocondrium about 2 cm below injury No. 14 on exploration of abdomen abdominal cavity full of blood spleen found lacerated on postero lateral surface in an area of 2 x 2 cm 16. Abrasion 2 x 1 cm on (R) side of chest lower part. 17. Abrasion 3 x 0. 5 cm at (R) costal margin. In the opinion of Dr. Sudhindra Bhargava (PW. 8), who conducted autopsy on the dead body, the cause of death was acute shock due to injuries No. 9, 10 and 14 which were sufficient to cause death in ordinary course of nature. The prosecution case centered round the testimony of Mahipal Singh (PW. 1), Inder Singh (PW. 2), Risal Singh (PW. 3) and Rohtash Singh (PW. 11 ). In his deposition Inder Singh (PW. 2) stated that in the morning of June 5, 1998 one Jai Chand informed him that Nahar Singh was lying injured behind the shops of Jagdish Shekhawat. He (Inder Singh) then came back to his house where he found Risal Singh sitting who told him that while he (Risal Singh) and Nahar Singh were returning back from village Dhamora and passing near the house of Prem Singh, suddenly Nahar Singh said that he was thirsty and requested Prem Singh, Sayar Singh and Manohar Singh who were standing there to arrange for drinking water, Prem Singh did not accede to his request and picked up quarrel. Prem Singh, Sayar Singh and Manohar Singh gave beating to Nahar Singh and injured him. Inder Singh (PW. 3) rushed to village Dhamora where his brother Nahar Singh told him that he was beaten up by Prem Singh, Sayar Singh and Manohar Singh. Injured Nahar Singh was removed by Inder Singh to Gudha hospital in the jeep, but they were asked to lodge the report. The informant Inder Singh along with injured Nahar Singh then went to the police station and submitted the report and came back to Gudha Hospital from where they were first referred to Titanwad hospital and then to Jhunjhunu but on the way to Jhunjhunu Nahar Singh died. In his deposition Risal (PW. 3) stated that on June 4, 1998 he and Nahar Singh had gone to village Dhamora. At that time he had consumed liquor and was under intoxication. While they were passing near the house of Prem Singh, he saw Prem Singh, Manohar Singh and Sayar Singh armed with Lathis and Iron-rods. Prem Singh then inflicted lathi blow on his person and Manohar Singh gave blow on the abdomen of Nahar Singh, as a result of which he fell down. Thereafter all the three started beating Nahar Singh. He (Risal) somehow escaped and got himself hidden in a Bada. After beating Nahar Singh they pushed him behind the shops of Jagdish. Since liquor dominated his senses he slept and woke up on the next morning. He straightway went to Inder Singh and informed him about the incident. Statement of Risal was however recorded by the police on June 8, 1998.
(3.) ROHITASH Singh (PW. 11), who was posted as Head Constable at Police Station Gudha, deposed that since on June 5, 1998 Circle Inspector had gone out, he was Incharge of Police Station Gudha. On that day Inder Singh submitted a written report (Ex. P. 2) to him, on the basis of which, he got the formal FIR registered and recorded the statements of Nahar Singh under Section 161 Cr. P. C. (Ex. P. 20 ). In the cross examination, ROHITASH Singh stated that he recorded the statement of Nahar Singh at 10. 45 AM. but in the Daily Rojnamcha he did not made entry about this. He also admitted that he did not incorporate in the statement as to what was the condition of injured Nahar Singh. Mahipal Singh (PW. 1), who was posted as Constable in the Police Station Gudha on June 5, 1998, in his cross examination stated that he proceeded along with injured Nahar Singh around 8- 8. 30 AM from police station Gudha in a jeep. Nahar Singh was unconscious at that time. Immediately after the injured reached at police station he was referred to the Hospital. Mahipal Singh along with the injured Nahar Singh reached Jhunjhunu at 10 AM. Dr. Jai Singh (PW. 12) deposed that on June 5, 1998 he posted as Medical Officer in PHC Titanwad. On that day at 10. 45 AM Rohitash Constable of PS Gudha came to him with injured Nahar Singh, who was unconscious. Dr. Jai Singh referred Nahar Singh to BDK Hospital Jhunjhunu. ;