- (1.) This is an appeal filed by the accused appellant, Kailash, which is directed against the judgment of the learned Sessions Judge, Jhunjhunu, dated 29th September, 1984, by which he has been convicted under Section 302/34, 307/34 and 323/34 IPC and sentenced him to imprisonment for life and a fine of Rs. 50/-under Section 302/34 IPC; to a sentence of five years rigorous imprisonment and a fine of Rs. 50/-; under S. 307/ IPC; and to a sentence of 9 months rigorous imprisonment under S. 323/34. In default of payment of fine on both the counts, he has been ordered to undergo rigorous imprisonment for one month.
(2.) The prosecution story in brief is that on 18th July, 1983, at 3.30 a.m. P.W.7, Bhola Nath, lodged an oral report at Police Station, Khetri on the basis of which F.I.R. Ex- P. 2, was registered. It was stated by Bhola Nath, that he was residing in his field in Dhani Jogiyan alongwith his family members. In the night his son Gyarsi, aged 20 years, and Bhagwana, aged about 16 years had gone to attend a feast of Banwari Jogi, in Dhani Jogiyan. At about 10-00 p.m. in the night Gyarsi Gujar and Gulnath Jogi, came to his house and informed that both of his sons had been given beating by lathis by Kailash and Subey, sons of Jagdish Jogi, resident of Dhani Jogiyan. Gyarsi and Gulnath, also told that his son Gyarsi had been killed and Bhagwana was lying unconscious. Thereafter he alongwith these persons reached on the spot and found his son Gyarsi lying dead and Bhagwana lying unconscious in the field of Sardara. It was further stated that Pyarelal son of Nagar Mal, Madan Lal son of Gulnath, Mali Ram son of Jagga, Dhanna Ram son of Budh Ram, and Ramjilal son of Gokul Ram, had seen the incident and coming to and from of the accused persons. It was also stated that some cases regarding beating between him, Kailash Subey and his father were pending in the court and on that account this incident has happened. A watch and battery belonging to Gyarsi deceased was not found on the spot, the police registered a case under Sections 302, 307 read with Section 34 of the IPC. P.W. 15, Amar Singh, S.R.O. reached on the spot in the morning on 18.7.1983, and prepared site plan (Ex. P. 3), inquest memo (Ex. P. 5) and also recovered blood stained earth and blood stained clothes of the deceased. Injured Bhagwana. was sent to the hospital and the dead body of Gyarsi deceased was also sent for postmortem. Dr. Ram Niwas, Mehta, P.W. 14, examined the injuries of Bhagwana and also conducted the autopsy of the dead body of Gyarsi deceased. Dr. Ram Niwas Mehta, incorporated the following injuries on the body of Gyarsi deceased:- External injuries: 1. Bruise paralel 10"X11/2" obliquely downwards from Kiphisternum to left costal margin upto left mid axilary line. 2. Bruises 1" X 1/2" three inches medial to left nipple in front of chest. 3. Bruise transversely 5"X 1/2" at lateral aspect of chest left side lower ⅓rd part. 4. Multiple bruises in a round with availing with intervening space 1/2" X 1/2" to 1 1/2X 1" obliquely from left angle of mandible to backward of neck. 5. Bruises 3" X 2" on upper ⅓rd of neck left lateral side and posteriority. 6. Scattered minute abrasions in 1" X 1" area at left lateral aspect of scrotum. 7. Bruises 6" X 1" obliquely upper ⅓rd of left side antero-laterally. 8. Bruises 6" X 2" with swelling on middle ⅓rd of left thigh antero-laterally. 9. Bruise 6" x 2" with swelling on lower ⅓rd of left things laterally. 10. Pulana skin at left wrist joint, durso-laterally in 21/2" x 1" area. The following external injuries were found on the scalp and neck of the deceased:- 1. Lacerated wound 2" x 1/2" x 1/2" on frontal area of scalp centrally. 2. Lacerated wound 21/2" x 1/2" x 1/2" on left fronts parietal region of scalp. 3. Lacerated wound 11/4" x 1/2" x 1/2" over left parietal prominance. 4. Linear fracture of frontal and temporal bone starting from mid-line going down wards upto xygomatic area (right side), 5. clotted blood blue in colour present in muscles of neck upto upper 3/4th part left side. 6. Dislocation of 2nd and 3rd cervical vertebram and crushing and spinal cord. 7. Fracture of occipital bone 1/2" x ⅓" centrally from which blood was oozing. The police also recovered a lathi at the instance of the accused Kailash from his house and sent the same for chemical analysis. In the report of chemical analyst Ex.P.20. it was found that there was human blood on the lathi but the no blood group could be discovered on the lathi as the blood was found dis-interegated. The police after completing the investigation submitted a challan against accused Kailash and Subey in the court of learned Munsif and Judicial Magistrate,as Khetri. The learned Magistrate, Khetri committed the case for trial to the court of Sessions, but accused Subey, was found to be less than 16 years of age such the learned Sessions, Judge, transferred his case for trial by the Children's as Court, Jaipur. Accused Kailash, was charged for the offences under Ss./302,302/ 34, 307, 307/34, and 323, 323/34. The accused denied the charges and claimed to be tried.
(3.) The prosecution in support of its case examined 15 witnesses in all. Accused Kailash, in his statement under Section 313 Cr.P.C, denied the incident and stated that he was falsely implicated in the case on account of previous litigation and enmity with the complainant party. He did not examine any evidence in defence. Learned trial court, believed the prosecution story and convicted and sentenced the accused Kailash, in the manner indicated above. Aggrieved against the judgment of the learned Sessions Judge, this appeal has been filed by accused Kailash.;