S.S.BYAS, J. - (1.) SINCE the both the appeals are directed against one and same judgment of the learned Sessions Judge, Jalore dated 11 -1 -82, they were heard together and are disposed of by a common judgment. By the impugned judgment, (1) accused Chela was convicted under Section 302, IPC and sentenced to life imprisonment with a fine of Rs. 200/ -, (2) accused Gena was convicted under Section 326, IPC and sentenced to three years' rigorous imprisonment with a fine of Rs. 200/ -; and (3) accused Mala and Gulaba were convicted under Section 323, IPC, but instead of being at once sentenced to any punishment, were released on probation of good conduct. Accused Gena, Mala and Gulaba were acquitted of the offence under Section 302/34, IPC. Accused Chela and Gena have come -up in appeal and challenged their conviction. Aggrieved against the judgment of the acquittal of Gena, Mala and Gulaba from the offence. Under Section 302/34, IPC. The State has, also, come -up in appeal.
(2.) THE prosecution case is short and simple and may briefly be summarised as under: PW 2 Smt. Raji and PW 3 Sultana are parents of the deceased -victim Karmi. aged about 22 years at the time of his murder. Accused Gena, Gulaba and Mala are sons of accused Chela. The parties are residents of village Karola -ka -Golipa, Police Station, Sanchore, District Jalore. The relations between PW 3 Sultana and the accused persons were not happy. It resulted in some criminal cases between them. After sun -rise on 11th July, 1981, PW 2 Smt. Raji, PW 3 Sultana and the accused Karmi were going in a bullock -cart from their Dhani to their field to sow the crop. Sultana and the deceased were sitting in the cart while Smt. Raji was corning behind on foot. When they reached near the field of Jhoga Kalbi, accused Chela, Gena, Gulaba and Mala came there together. Accused Chela bad a Dhariya, Gena had an axe while Mala and Galaba had lathis. They pulled -down Karmi from the bullock -cart. Accused Geniya struck a blow with his axe, which hit on the right index finger of Karmi. Accused Cheliya struck a blow of his Dhariya on the right side of Karmi's head. Karmi fell down. Thereafter all the four accused started jointly beating him. Sultana raised cries. Hearing his cries, PW 1 Dargaram and PW 4 Joga rushed to the spot. They intervened and rescued Karmi The accused thereafter retreated and vent away. Darga Ram, Joga and Mst. Raji took Karmi in a tractor to Government Hospital, Sanchore. Karmi was admitted there for treatment. PW 7 Dr. ML Jain gave him treatment and addressed letter Ex. P 6 to the police. PW 12 ASI Ranchchod Singh, on receiving letter Ex. P 6, went to the hospital. Karmi was lying unconscious there. PW 4 Joga presented typed report Ex. D 2 to the Investigating Officer (here in the hospital. The police registered a case under Sections 307 and 326, IPC. The investigation was taken -up. Despite treatment, Karmi did not survive and breathed his last at about 12.00 p m. on July 11, 1981 The police added Section 302, IPC during investigation. PW 12 Ranchor Singh prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site -plan. The blood stained clothes of the deceased were seized and sealed. The post -mortem examination on Karmi's dead body was conducted at about 2.00 p.m. on July 11, 1981 by Dr. Jain PW 7. The doctor noticed the following ante -mortem injuries over the dead body: External (i) Incised wound with clotted blood 3' x 1' x 3' brain matter deep, placed obliquely on the left occipital region of scalp extending from middle and upper part of occipital bone to the pinna of ear, tappering end of the wound was on the back of pinna of left ear at the level of upper one third and lower two third region and wider end of the wound was on the mid -occipital region left side The shape of the wound was spindle like. There was a fracture of occipital bona of left side exactly in the wound; (ii) Incised wound with clotted blood 3/4' x 1/2' x bone deep on the distal phalynx region of outer aspect of little finger of right hand with simple fracture a distal phalynx bone of the finger. The finger was cut completely and hanging from the skin margin only; (iii) Lacerated wound 1 c.m. x 3/4 cm. x skin deep on the dorsal aspect of 4th finger of right hand on distal phalynx region in the middle;(iv) Contusion 1' x 3/4' on the dorsal aspect of left wrist joint on outer aspect; (v) Contusion 10' x 1' vertically and slightly obliquely on the left supra scapular region in its middle extending from supra scapular region to downwards towards back; (vi) Contusion 4' x 1' obliquely on the right scapular region in its lower part in middle at the level of inferior scapular angle; Internal (i) Scalp, skull and Vertibrae - -Compound fracture of left occipital bone of scalp and skull in relation to injury No. 1 of size 2.5' x 1' bone cut, which was felt manually. Vertibrae healthy; (ii) Membrance - -Ruptured in the wound No 1 and fracture of scalp and skull; (iii) Brain and spinal cord - -Brain lacerated in relation to injury No. 5 and coming out of the wound; (iv) Thorax, Valves, ribs, cartileges, pleurea larynx and trachea, paricardium were healthy. Lungs healthy, pale and white. Heart was healthy. Right side was full, left side was empty. Large vessels were healthy, except vessels cut in relation to injury No. 1; (v) Abdomen - -Mouth, pharynx and oesophagus were having clotted blood. Large and small intestines were healthy, balooned up and full geses. Liver, spleen, kidneys were congested, Bladder was empty. Valves, paritonlum and organs of generation (external and internal) were healthy; (vi) Muscles, bones and joints - -Healthy except as mentioned in previous respective columns. In the opinion of Dr. Jain the cause of death of the victims was shock and haemorrhage due to injuries to the scalp, skull and vittal parts of the brain. The post -mortem examination report is Ex. P 9. The accused were arrested and in consequence of the informations furnished by them, lathis, Dhariya and axe were recovered. The weapons and the clothes of the deceased were sent for chemical examination. Blood was detected on most of them. On completion of investigation, the police presented a crime report against four accused Chela, Gena, Mala and Gulaba in the Court of the Munsif -cum -Judicial Magistrate, Sanchore, who, in his turn, committed the case for trial to the Court of Sessions. The learned. Sessions Judge framed a charge under Section 302, Indian Penal Code against accused Chela and under Sections 302/34, Indian Penal Code against the remaining three Gena, Gulaba and Mala. The accused pleaded not guilty and claimed to be tried. They denounce the whole prosecution story and pleaded innocence. According to them, they were falsely implicated as their relations with the deceased and his family were not happy. In support, of its case, the prosecution examined twelve witnesses and filed some documents. In defence, the accused adduced no evidence. Out of the twelve witnesses examined by the prosecution, PW 1 Dargaram, PW 2 Smt. Raji, PW 3 Sultana and PW 4 Joga have claimed to have seen the incident. The learned Sessions Judge accepted their evidence and treated them as witnesses of truth. The learned Sessions Judge was, however, of the opinion that no case for the applicability of Section 34, IPC was made out against accused Gena, Mala and Gulaba. He took that accused Chela was the author of the fatal blow inflicted on the deceased Karmi. It was the individual act of accused Chela. The accused had formed no common intention to commit the murder of Karmi. As such accused Gena, Mala and Gulaba could not be convicted under Section 302/34 IPC. He further held that accused Gena had inflicted a grievous injury on the right index finger of Karmi with his axe. Accused Gulaba and Mala had struck blows with their Lathis to Karmi. Thus, each accused was held responsible for his individual act. The four accused were, therefore, convicted and sentenced as mentioned at the very out -set.
(3.) WE have heard Mr. Mridul Jain for the accused persons and the learned Public Prosecutor Mr. R.K. Soni. We have also gone through the case file carefully.;