M.L. Jain, J. - (1.) This is an appeal against the judgment of the learned Sessions Judge, Udaipur, dated June 28, 1972, by which he convicted the appellant Gotma under Sec. 325, I.P.C., and sentenced him to rigorous imprisonment for three years and further convicted him under Sec. 323, I.P.C., and sentenced him to rigorous imprisonment for one year. Both the sentences were directed to run concurrently. I have heard arguments and perused the record. According to the prosecution on 4 -3 -72 at 6 p.m. Dhula (PW 2) of village Kevda, District Udaipur, was coming with his son Bhagga aged 7 years on his shoulder from Gor to his house. Accused Gotma came running from the opposite direction with a 'lathi' in his hand. Gotma delivered a blow on Dhula. He gave another blow, which hit the neck of child Bhagga, who was on his father's shoulder. Gotma also gave a call to his son accused Bhagga to kill Dhula; Accused Bhagga then gave a Ganchi blow to Dhula and his son Bhagga. The child Bhagga died instantaneously. Dhula carried the dead body to the house of Sarpanch Navla (DW 1), who advised him to place the dead body back on the spot. Navla then sent for Mana (PW 1). It was Mana, who lodged the report Ex. P/5. After investigation, the police challaned Gotma and his son Bhagga under Ss. 302 read with Sec. 34, I.P.C. and 307, I.P.C. The learned trial judge examined five prosecution witnesses and two defence witnesses and held that the participation of Bhagga in the incident has not been proved beyond reasonable doubt, nor was it proved that he shared any intention with his father, Gotma in causing injuries to Dhula and child Bhagga. He, therefore, gave him the benefit of doubt and acquitted him of the charges under Ss. 302/31 and 307, I.P.C., but he convicted appellant Gotma as aforesaid.
(2.) Dr. S.K. Gupta (PW 6) had examined Dhula and he found the following injuries on his person: - - (1) Bruise 5" x 1/4" placed transversely on the right scapula region. (2) Bruise 8" x 1/4" placed obliquely on the left infra scapula region. (3) Bruise 1" x 1/4" placed on left knee laterally. All the injuries were simple and caused by blunt object.
(3.) The same medical officer conducted the post -mortem examination of the dead body of Bhagga and found the following injuries: - - (1) Abrasions 1/2" x 1/4" and 1/2" x 1/2" on the back in the mid line at the level of 3rd and 4th lumber vertebrae. (2) Abrasion 3/4" x 1/2" on the right fore arm dorsally about 1" distal to the olecranon process. (3) Bruise 1/4" x 1/4" on the left side of lower jaw about 1" from the angle of the mandible medially. (4) Bruise 1/4" x 1/8" on the left side of the chin.;