SHYAM SUNDER BYAS, J. - (1.) BY leave, the State has come -up in appeal and challenges the judgment of the learned Additional Sessions Judge, Banswara dated September 2,1974, by which the accused -respondents Halu, Nanka and Puniya were acquitted of the offence under Section 302 or 302/34, I.P.C
(2.) AT about 8.30 p.m. on July 13,1973, PW 1 Dharji appeared at Police Station, Banswara and verbally lodged report Ex. PI. It was stated therein that at about 4.30 p.m. on that day his brother Kanji (the deceased -victim) his wife Mst. Sajjana (PW 4), his brother Dhanji (CW 1) and his wife were cleaning the grass -bundles in the river near their fields situate in Mauja Sakwadiya. He was up -rooting the grass in his field. The three accused Halu, Nanka and Puniya came there. Accused Halu had an axe with him while the remaining two had lathies. Accused Halu struck blows on the head of Kanji with his axe and the other two accused struck blows to him with their lathies. The accused Nanka and Puniya also struck blows to him (Dharji PW 1) and his other brother Dhanji (CW 1) with their lathies. Kanji fell down and there was profuse bleeding from his wounds. Kanji became unconscious on the spot. The incident was seen by PW 2 Veerji, PW 3 Mst. Hamiri and PW 5 Parthu. PW 2 Veerji and PW 5 Parthu were then taking bath in the river. The police registered a case under Section 307, I.P.C. and proceeded with investigation. The Station House Officer Ishwar Lal (PW 13) arrived on the spot on July 17, 1973 and prepared site plan Ex. P 2. Kanji was taken to the General Hospital, Banswara, where his injuries were examined by PW 16 Dr. P.L. Bhardwaj, the then Medical Officer Incharge. The doctor noticed the following injuries on his person: (1) One incised wound clean cut margins right parieto -occipital region bone deep 3' x 3' fracture underlying bone suspected; (2) Peorioccular echhymosis both eyes bluish with defused swellings; (3) One oblique incised wound clean cut margins on the head right eye -brow 2 ' x 5 ' bone deep, 3/4' into point one bone deep fracture under lying bones; (4) Incised wounds clean cut left side above eye brow verticle 2' x 3' deep margins sharp fracture under lying bone. Injury No. 2 was found simple caused by some blunt weapon while the remaining three were found grievous caused by some sharp -edged weapon. The injury report issued by the doctor is Ex. P 14. The injuries of Dharji (PW 1) and Dhanji (CW 1) were also examined by Dr. Bhardwaj. Simple injuries caused by blunt weapons were found on their persons. The injury reports prepared by him are Ex. P 4 and Ex. P 19. Kanji, despite treatment, did not survive and passed away at about 10 -20 a.m. on July 20, 1973. His post -mortem examination was performed by Dr. Bhardwaj at about 12.40 p.m. on the same day. He noticed some external injuries mentioned in his injury report Ex. P 14. On the dissection of the body, he found the following: Fracture of frontal bone on both side left and right. There was clotted blood in scalp layer epidural and sub -dural haemorrhage in clotted form, No tear of Dura and Brain. Clotted blood over frontal parietal lobes. In the opinion of Dr. Bhardwaj, the cause of death was head injury leading to fracture of the skull bone and infra -cranial haemorrhage. The post -mortem report prepared by him is Ex. P 18. The police added Section 302, I.P.C. thereafter. The accused persons were arrested and in consequence of the informations furnished by them, Iathies and axe were recovered at their instance. On the completion of investigation, the police submitted a challan against the three accused in the Court of Munsif and Magistrate, Banswara. The learned Magistrate, after holding an enquiry, as was the procedure at that time, committed the accused persons to take trial in the Court of Sessions. The learned Additional Sessions Judge framed a charge under Section 302 against accused Halu and under Section 302/34, I.P.C. against accused Nanka and Puniya, to which they pleaded not guilty and claimed the trial. In support of its case, the prosecution examined thirteen witnesses and filed some documents. In defence, the accused examined six witnesses. Dhanji was examined as a Court witness. It was alleged by the accused persons that the prosecution has placed only a lope -sided and truncated version of the incident suppressing the real facts. According to them, at that time they were returning to their village and happened to pass near the river. The members of the complainant party including the deceased -victim were sitting concealing themselves. As soon as they reached the place of occurrence, the members of the complainant party emerged out and made an assault on accused Halu and other persons. Accused Halu sustained injuries as mentioned in his injury report Ex. D 7. Halu was examined on that very day by Dr. Bhardwaj. On the conclusion of the trial, the learned Sessions Judge held that the prosecution as well as the defence witnesses were unreliable. They had suppressed the real facts and had put forward only false stories. The injuries of accused Halu were not explained by the prosecution witnesses and so also the injuries on the deceased Kanji and his brothers Dharji and Dhanij were not explained by the defence witnesses. He further held that even if it is taken that the accused persons inflicted injuries on Dhanji and the decased -victim Kanji they did so in exercise of the right of private defence. They were, therefore, completely saved. Taking these views, he found the charges not proved against the accused respondents. The accused -respondents were consequently acquitted of the offence they were charged with. Aggrieved -against their acquittal, the State has taken this appeal. We have heard the learned Public Prosecutor Mr. L.S. Udawat and Mr. P. R. Chaudhary, the learned Counsel for the accused respondents.
(3.) WE have gone through the judgment of the learned Additional Sessions Judge and are constrained to observe that the judgment written by him is laconic and defective. He has not at all discussed the evidence of the eye witnesses and has not recorded a finding as to whether the deceased Kanji was assaulted and belaboured by the accused -respondents. He proceeded that the eye witnesses were false simply because they had not explained the injuries found on the person of accused Halu. We are unable to appreciate his approach. Since the appeal is against acquittal and the acquittal is challenged as erroneous, the entire prosecution evidence will have to be read and considered.;