SHYAM SUNDER BYAS, J. - (1.) THE appeal is directed against the judgment of the Additional Sessions Judge, Hanumangarh dated February 21, 1976 convicting and sentencing the appellant as under: S. No. Name of accused Offence Under Section Sentence imposed (1) Bega Ram 302, IPC Imprisonment for life with a fine of Rs. 500/ - in default, six months rigorous imprisonment; 323, IPC One year's rigorous imprisonment; (2) Kashi Ram 302, IPC Imprisonment for life and a fine of Rs. 500/ -, in default, six months rigorous imprisonment; 325, IPC Two years' rigorous imprisonment and a fine of Rs. 200/ -, in default, to further undergo three months' rigorous imprisonment.
(2.) BRIEFLY stated, the prosecution case, which is short and simple, is that Surja Ram (deceased), Chunni Ram and Begaram (appellant) were real brothers and resided in village Sherahan P.S. Tibi district Sri Ganganagar. PW 1 Manphool is the son of Chunni Ram and PW 2 Rameshwar is the son of Surja Ram. The appellant Kashi Ram is the son of accused Bega Ram. The three brothers Chunni Ram, Surja Ram and Bega Ram were cultivating Kila Nos. 1,2,8,9,10,11 and 12 of Muraba No. 47 situate in Chak No. 3 -H. M.M. Each brother was in possession of two Kilas while Kila No. 10 was in their joint cultivation and possession. Even in Kila No. 10, specific portions were allotted to each brother and thus the appellant Bega Ram was only cultivating 1/3 portion of Kila No. 10. At about 9.00 or 10.00 a.m. on October 18, 1974 when PW 1 Manphool was ploughing his field and Surja Ram was up -rooting the bushes in his field, the two appellants Begaram and Kashi Ram accompanied with accused Sant Ram came there. They were armed with lathies. They went to Surja Ram and started adminisrering blows to him with their lathies. Accused Begaram struck a blow of his lathi on the head of Surja Ram. Accused Kashi Ram struck a blow of his lathi on the fore -head near the eye of Surja Ram. Surja Ram fell down. The appellants and Sant Ram even thereafter landed blows to him. PW 1 Manphool and PW 2 Rameshwar rushed to protect Surja Ram. They too were not spared and were beaten by the appellants and Sant Ram. Surja Ram became unconscious on the spot. The accused thereafter left the place. Manphool and Rameshwar (PW 1) took Surja Ram to the Police Station, Tibi, where they reached at about 12.15 p.m. on the same day. He verbally lodged report Ex. P. 1 of the occurrence. The police registered a case under Sections 307, 447 and 323, IPC, against the appellants and Sant Ram. The Investigating Officer sent Surja Ram for treatment to 1 - RCP. Dispensary, Hanumangarh for treatment where he was admitted at about 6.00 a.m. Despite medical treatment, he did not survive and breathed his last at about 10.30 a.m. on October 19, 1974. Section 302, IPC, was thereafter added during the investigation. The Station House Officer Rakshpal Singh (PW 12) went to the Dispensary and prepared the inquest report of the dead body of Surja Ram. His blood stained clothes were also seized and sealed. The post -mortem examination of the victim's dead body was conducted at about 3.30 p.m. on October 19, 1974 by PW 10 Dr. Roopsingh. He found the following antemortem injuries on the victim's dead body: External - - (1) One haematoma 6' x 4' on right frontal region; (2) One depression 6 -1/2' x 4' on left fronto -parietal region; (3) Sub conjectival haemorrhage in left eye; (4) Blackish bruise, left eye lids, more in upper part; (5) One haematoma 6' x 4' on the right wrist and palm, with fracture 2nd, 3rd and 4th metacarpals; (6) One abrasion 1 -1/2' x 1/2' at the base of left index finger, dorsal aspect; (7) One bruise 2 -3/4' x 3/4 on the left arm, dorsal aspect. Internal - - (1) Fracture star -shaped on right frontal bone 3' x 2'; (2) Depressed fracture of left frontal bone 2' x 1 -3/4. The doctor was of the opinion that Surja Ram died on account of head injuries. The post -mortem examination report prepared by him is Ex. P, 13. The doctor also examined the injuries of Manphool and Rameshwar. Four simple injuries caused by some blunt object were found on the person of Rameshwar. Four injuries caused by some blunt object were also found on the person of Manphool, three of which were simple and one was grievous. The injury was designated as grievous caused because of the fracture of the right radius. His injury report is Ex. P 14. The Investigating Officer also visited the site and prepared the site plan. The appellants and Sant Ram were arrested and in consequence of the information furnished by them, lathies were recovered. On the completion of investigation, the police submitted a challan against the appellants and Sant Ram in the Court of the Judicial Magistrate, Hanumangarh, who, in his turn, committed the case fot trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 323, 325 and 332, IPC. and some sections of the Arms Act against the appellants and Sant Ram, to which they pleaded not guilty and claimed to be tried. Accused Kashi Ram and Sant Ram denied their presence on the spot and participation in the commission of the crime. Accused Begaram, in his statement under Section 313, Cr. PC, stated that all the seven Kilas were in his exclusive possession, which he was cultivating since long. These Kilas were allotted to him by the Revenue Authorities. On the day of incident, when he was working in these fields, PW 1 Manphool and the deceased Surja Ram came there and asked him to leave the fields and to give them their shares. He declined to oblige them. The deceased Surja Ram thereafter abused him and swirled a lathi to strike blow to him. He moved aside and thus esca ped. It was further alleged by him that apprehending danger to his life he also swirled his lathi. In support of its case, the prosecution examined twelve witnesses and filed some documents. In defence, the accused adduced no witnesses but filed some documents. On the conclusion of trial, the learned Sessions Judge found inclupating material against accused Sant Ram. He was consequently acquitted of the offences he was charged with. The prosecution story was taken substantially true as against the appellants and they were, therefore convicted and sentenced as mentioned at the very out set. It may be noticed that both the appellants were acquitted of the charge of committing criminal trespass punishable under Section 447, IPC. The appellants have come -up -in appeal and challenge their conviction. Before proceeding further, it would be proper to briefly notice the prosecution evidence. The prosecution has examined there ocular witnesses of the incident, viz. PW 1 Manphool, PW 2 Rameshwar and PW 3 Shanker. Out of them, PW 2 Rameshwar and PW 3 Shanker turned hostile and lent no support to the prosecution story. It is interesting to find that PW 2 Rameshwar is none else but the real son of the deceased -victim Surja. According to prosecution, PW 3 Shanker, who was working in the nearby field of one Hanuman Bishnoi, has witnessed the incident, but he declined that he had seen the incident and the appellants' striking any blow to Surja Ram. PW 1 Manphool, no doubt, supported the prosecution version of the incident. It is he who lodged the FIR Ex. P 1 of the occurrence at the Police Station. He is an injured witness, who sustained as many as four injuries in this incident, one of which was grievous in nature. The learned Sessions Judge found the testimony of PW Manphool trustworthy and worth credence. PW 1 Manphool deposed that the appellant Bega Ram struck a blow of his lathi on the head of Surja Ram and accused Kashi Ram struck a blow of his lathi on the fore -head above the eye of Surja Ram. He further stated that accused Kashi Ram had struck a blow of his lathi on his (witness) right hand causing a fracture of his radicus. The learned Sessions Judge accepted this part of his testimony as true and dependable.
(3.) WE have heard Mr. R.N. Bishnoi, learned Counsel for the appellants and Mr. L.S. Udawat the learned Public Prosecutor.;