SINGH, J. - (1.) HEARD the learned counsel for the appellants and the learned Public Prosecutor and perused the record of the case.
(2.) BOTH these appeals have been filed against the judgment delivered by the learned Additional Sessions Judge No. 1, Jodhpur on 15. 3. 1977 in Sessions Case No. 23/1976 : State vs. Bhalla Ram & Anr. whereby the appellants were convicted under Sections 302, 323 and 447 I. P. C. and sentenced to life imprisonment under Section 302, 4 months rigorous imprisonment under Section 323 and rigorous imprisonment for 2 months under Section 447 I. P. C. Since both these appeals have been filed against the same judgment, therefore both of them deserve to be decided together. The appellants, Bhalla Ram and Binjaram were tried by the learned Additional Sessions Judge No. 1, Jodhpur for offences punishable under Sections 302, 323, 379 and 447 I. P. C. They were acquitted of the charge punishable under Section 379 I. P. C. but they were convicted under Sections 302, 323 and 447 I. P. C. and sentenced to life imprisonment, rigorous imprisonment for 4 months and rigorous imprisonment for two months respectively under the above-mentioned sections. The prosecution case as unfolded by the first information report Ex. P. 2 lodged by Bhoma Ram at police station, Dechu on 14. 6. 1975 at 11. 30 A. M. is to the effect that towards the South West of the road that leads to Solankiyatala, there is a field bearing Khasra No. 226 belonging to Bhoma and his brothers, namely, Dharu, Moda and Rawta. According to the first information report on 14. 6. 1975 the appellants Binjaram and Bhallaram went to the field of the complainant and started cul- tivating the same. At about 11. 30 A. M. complainant's elder brother Rawtaram went to the field with a camel in order to cultivate the field. When he found the appellants he tried to persuade them not to cultivate. The appellant Binjaram was armed with a lathi and Bhallaram was armed with a Bei. The appellants started inflicting injuries on Rawtaram with lathi and bei which they possessed. In order to save him- self Rawtaram tried to run away from the place of occurrence, at that time complainant's wife Mst. Gawari who was at that time coming to village from complainant's dhani, in order to bring water, tried to protect Rawtaram by intervening between him and the appellants. The appellants then inflicted injuries on Rawtaram with lathi and bei and as a result of these injuries Rawataram died. Bhallaram is alleged to have inflicted injuries on Rawtaram and Smt. Gawari with Bei, whereas Binjaram inflicted injuries to Rawtaram with lathi. As a consequence of the blows given by the appellants Smt. Gawari received serious injuries and her intestines were exposed and her condition became serious. It was further alleged in the first information report that at the time of incident the complainant's brothers Modaram and Dharu Ram and complainant's sister-in-law namely Smt. Sayri wife of Tilaram and wife of Gularam have witnessed the occurrence and when Gularam's wife tried to intervene the appellants tried to snatch her Timania but she protected herself by running away. It was further stated in the first information report that after the incident the complainant and his brothers Modaram and Dharuram after placing Smt. Gawari on a cot tried to take her to the village but the appellants threatened to kill them and attacked and inflicted injuries with lathi and bei. As a consequence the complainant and his brothers rushed towards the village. Meanwhile Sampatlal, Babulal and some others intervened and saved the complainant and his brothers. It was further stated in the first information report that the appellant Binjaram con- cealed the lathi in the complainant's field and thereafter the appellants took away the camel of the complainant as well as crop of Danjeera costing about 1500/- and plough ``tagar'' with them. On the basis of the first information report given by Bhomaram the police registered a case under Sections 302, 307, 323, 447 and 379 I. P. C. After investigation a report under Section 173 Cr. P. C. was submitted in the court of Munsif and Judicial Magistrate, First Class, Jodhpur District, Jodhpur who in turn committed the case to the court of District and Sessions Judge, Jodhpur. The learned District and Sessions Judge Jodhpur vide order dated 13. 4. 1976 made over the case to the learned Additional District and Sessions Judge No. 1, Jodhpur who conducted the trial of the appellants and convicted and sentenced them as mentioned above. Learned counsel for the appellants has submitted that the findings as well as judgment of conviction and sentence delivered by the learned Additional Sessions Judge No. 1, Jodhpur are not maintainable because the evidence produced by the prosecution on which the reliance has been placed, is not reliable and the charges brought against the appellants have not been proved beyond all reasonable doubt.
(3.) DURING the trial the prosecution has examined as many as 27 witnesses. The appellants were also examined under Section 313 Cr. P. C. 3 witnesses were examined by the appellants in their defence. It is not disputed that Rawtaram and Smt. Gawari wife of Bhomaram were died on account of the injuries which were found on their bodies by the Doctor who conducted the post-mortem examination. Dr. Sohan Singh P. W. 23 who was posted as Medical Officer Incharge, Primary Health Centre, Balesar went to village Somesar on 15. 6. 1975 at 3. 40 P. M. on requisition of the Station House Officer, Police Station, Dechu for conducting the post-mortem examination of the dead bodies of Rawtaram and Smt. Gawari. The dead bodies were identified by Dharu Ram brother of late Rawtaram. On conducting the post-mortem examination of the dead body of Rawataram, Dr. Sohan Singh P. W. 23 found that there was bleeding from both nostrils, mouth and left ear (dried) and there was bruise on the left side of upper face and head with swelling of the size 3'' x 2'' bougy in nature extending about 1'' above the left ear and the left eye of the deceased was bulzing and the swelling was depressed in nature over side of the right face. On opening the body he found that there was a commuted depressed fracture of the left upper part of the maxillary temporal and frontal bones about 1 1/2 c. m. from the left eye with lacerations of the brain (frontal lobe) and inter-cerebral haemorrhage. The laceration was of the size of 3'' x 1/3''. The membrance was congested and ruptured at the site of the injury, and there was sub-conjectival haemorrhage as well as sub-cutaneous haem- orrhage under the bruise of the right side of the head and in the stomach partially digested food particles were present. Dr. Sohan Singh P. W. 23 prepared the post-mortem report Ex. P. 38 and opined that the cause of death of Rawtaram was the blunt injury on his head which caused cerebral lacerations, hemorrhage, coma and death, and all the injuries were ante mortem in nature and the duration was bet- ween 18 to 20 hours, and the single injury which was found on the head of Rawta Ram was sufficient in the ordinary course of nature to cause death and it could have been caused with a lathi like lathi Article 1 which was shown to the witness during the examination. Dr. Sohan Singh P. W. 23 also conducted the post-mortem examination of the dead body of Smt. Gawri wife of Bhomaram on 15. 6. 1975 at 6 P. M. He found that the body was in the early stage of decomposition and there was a punctured wound of 2 c. m. in diameter on the right upper abdomen (right hypo-chonbrium) 3 c. m. below the costal margins, on the right side going upto the posterior centre aspect of the duedenum puncturing the duedenum and the loops of intervening small intestines. Greater omentum with a loop of small intestine was protruding out of the wound with A- F dressing on the wound and there was a bruise over the right side of the temporal part of the head measuring 2 c. m. x 1 c. m. On opening the body he found the bruise over the temporal part of the head 3'' away from the ear (tip of the ear) measuring 2 c. m. x 1 c. m. There was subcutaneous haemorrhage but no bony injury was detected. On opening the abdomen he found that punctured wound of the right hypochondrium was 2 c. m. in diameter puncturing the postero lateral aspect of the duedenum and small intestines at several places and greater omentum alongwith a loop of small intestine was protruding out of the wound. About 3 1/2 ltrs. of dark coloured fluid blood was found in the abdomen cavity and early signs of peritonitis were present, and in the stomach there was partially digested food. Post-mortem report Ex. P. 39 has been proved by Dr. Sohan Singh P. W. 23 and opined that Smt. Gawri died on account of penetrating injury of the right hypocondrium, which caused intra-abdomenal haemorrhage, shock and death and that the injuries of Smt. Gawri were ante mortem in nature and the duration of death was about 12 hours before the conduct of the post-mortem examination and the injuries of Smt. Gawari were in the absence of proper treatment sufficient to cause her death and the penetrating injury found could have been caused by an instrument like bei Article 4 which was shown to the witnesses during his examination in Court. The duration of injuries has not been mentioned by the witness. Only the duration of death before conducting the post-mortem examination has been given. The testimony of Dr. Sohan Singh P. W. 23 establishes beyond all reasonable doubt that the death of Rawtaram and Smt. Gawri was unnatural and it was on account of the injuries found on their bodies and the injuries were in the opinion of Dr. Sohan Singh P. W. 23 were sufficient in the ordinary course of nature to cause death. We have no doubt that these injuries were homicidal in nature and they could not have been caused accidentally nor they could have been suicidal. ;