M.L. Jain, J. - (1.) THIS appeal arises out of the judgment of the learned Sessions Judge, Bikaner, dated 29th April 1972 by which the appellants Magha Ram and Koja Ram were convicted under Ss. 325 I.P.C. and each one of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 100/ - and in default whereof to rigorous imprisonment for three months. I heard arguments and examined the record. The brief facts of the case are that Ram Pratap PW 5 sent a telegram to the S.H.O., Jamser Tahsil Bikaner on 19 -7 -71 that Megha Ram, Rajuram, Nandram, Deraj Ram of Norangdesar have beaten Rugha Ram and broken his legs. The same witness then appeared before the police station at 3 p.m. and lodged a report Ex. P2 that on 18.7.71 at 6 p.m., the aforesaid five persons attacked his brother Rugha Ram on account of previous litigation and animosity. The witness was in his field and heard the cries of Rugha Ram. He ran towards him and saw that the accused had attacked Rugha Ram Nand Ram was armed with a gun and rest of them were armed with lathis. Nand Ram was standing at a distance and asking the accused not to allow Rugha Ram to escape but to do him to death. Simultaneously, there arrived Shri Ram son of Rugha Ram but by then Rugha Ram had fallen. When both Ram Pratap and Shri Ram shouted and came near the scene of occurrence, the accused ran away. At that time one Ram Kishan and one Kheta Ram were also going towards the fields. When Ram Pratap and Shri Ram approached Rugha Ram. they found him injured in hand, feet and head. They carried him to the bus -stand from there he was taken to Bikaner Hospital. It appears that he died on 19 -7 -71. The postmortem examination took place on 20 -7 -71 at 10 am. The medical officer Dr. Mohan Lal Paniya PW 7 found the following injuries on his person: 1. Lacerated wound 'V' shaped middle of left leg anteriorly 1" x 1/4" x skin deep 2. Lacerated wound 1/2" x 1/4" x bone deep on the front of right leg anteriorly 3. Lacerated wound 1/2" x 1/4" x bone deep 1/4" lateral injury No. 2 4. Lacerated wound 1/2" x 1/4" x muscle deep on the right leg lower third with deformity 5. Contusion 4" x 1" on the left thigh middle third 6. Lacerated wound 1" x 1/10" x scalp deep on the left parietal region 7. Contusion 4" x 1" on left side chest 8. Contusion 3" x 1" on left side chest 2" below injury No. 7 9. Contusion 3" x 1" on right fore arm. lower one -third 10. Swelling with deformity and central abrasion 1/1"x 1/4" on the back of left elbow 11. Bruise 2" x 1" on left arm lower half 12. Abrasion 1/2" x 1/4" on the left foot 13. Swelling 1/2" x 1/4" on the right foot distal half 14. Contusion 4" x 1" on right thigh middle third
(2.) UPON opening the body, the Medical Officer found two fractures; one in the leg bones and another in the 4th and 5th toes of the right foot. He also found laceration of the right ventricle of the heart in anterior surface. His opinion was that Ragha Ram died on account of shock and haemorrhage caused by laceration of heart and haemo -perioardium. The fractures of the leg bones had also added to the shock The post -mortem report is Ex. P2. The police after investigation found that only two persona namely the present appellants were the assailants. They challaned them under Sec. 302 I.P.C. The learned Additional Munsif Magistrate Bikaner after inquiry committed the accused persons for trial in the court of sessions where they were convicted and sentenced as aforesaid.
(3.) IT will be noticed that at the time of the trial, the prosecution produced Kana Ram PW 1 who was not mentioned in the F.I.R. Shri Ram PW 4 is the son of the deceased. Ram Pratap PW 5 is a brother of the deceased and the first informant, while Mah Ram PW 6 is a boy of 14 years. They were alleged to be the eye witness's of the occurrence. The two persons whose names were mentioned in the F.I.R., namely, Ram Krishan and Kheta Ram were not produced in the witness box. PW 6 Mah Ram's statement Ex. P13 which he made before the committing Magistrate was taken on record of the court of sessions under Sec. 288 Cr. P.C. because the boy turned hostile at the time of the trial. The learned counsel for the accused appellants did not seriously contest that Raghu Ram died on account of the injuries which were inflicted upon him. His contention is that Dr. Mohan Lal Pania had stated that he had examined the deceased on the requisition of the police on 18 -7 -71 when be was brought to the hospital by some employee of the police station, Jameer and he prepared the injury report Ex. P1. Investigation Officer's statement is that the report of the occurrence was lodged on 19 -7 -71. It was pointed out that the statement of the medical officer shows that the report was lodged on 18 -7 -71 but it was reduced no writing on 19 -7 -71. Thus, the very first information report has become a doubtful piece of evidence. No report of 18 -7 -71 has been produced. This point was also raised before the learned Sessions Judge but the judge observed that in this respect the statement of Dr. Mohan Lal Panwa cannot be relied upon because in Ex. P1 there is no mention that the injured was examined upon the requisition of the police. It also appears to me that the injuries were recorded in injury report Ex. P1 on 8.30 p.m. on 18 -7 -71 but the report to the police was made only on 19 -7 -71. Therefore, it cannot be said that there was any earlier report with the police which has not been produced or that the report Ex. P1 is of a doubtful veracity.;