SINGH, J. - (1.) RAMKARAN, Raghuveer, Sultan and Rajendra (appellants herein) were put to trial before the Additional Sessions Judge, Fast Track No. 2, Jhunjhunu who vide judgment dated February 8, 2006 convicted and sentenced each of the appellants as under: u/s. 148 IPc to suffer rigorous imprisonment for two years and fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days. u/s. 365 IPc to suffer rigorous imprisonment for three years and fine of Rs. 50/- in default to further suffer simple imprisonment for seven days. u/s. 302/149 IPC, to suffer imprisonment for life and fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days. All the sentences were ordered to be run concurrently.
(2.) BRIEFLY stated, the prosecution cased is that the informant Ghasi Ram resident of village Hanutpura lodged a report on August 21, 2004 at about 4. 15 A. M. at police station Baggar, District Jhunjhunu wherein he stated that about three months back, his younger brother Vidhyadhar got a cow sold by Ramkaran to Banwari Lal for Rs. 11,000/ -. Ramkaran had told Vidyadhar that he would be charging the sale amount from him instead of Banwarilal. The said amount could not be paid by Vidhyadhar and hence Ramkaran's family was harbouring a grudge against him. A day before the incident, Vidhyadhar had gone to repair motor of their well at village Lalpur and there he was beaten at the Bus Stand by Rajendra. However, no report of the said incident was made to police as the matter was likely to be solved through community Panchayat. On August 20, 2004 at 7. 00 P. M. , the informant had gone to Ramkaran to complain about the said incident. The informant was talking to Ramkaran who was standing in `johada', suddenly Sultan, Rajendra Vijay and Raghuveer came armed with `lathis' and exhorted to kill him. So, the informant ran toward his field. By then, Tarachand came there hearing the noise, he was beaten and dragged by all the five persons including Ramkaran and they took Tarachand to the house of Ramkaran leaving behind the trail of blood and`chappals' on the way. Later on in the night, on being informed by the police, he went to B. D. K. Hospital, Jhunjhunu where his brother Tarachand was admitted. Tarachand was having injuries on head, ribs and other parts of th body. On being enquired, Tarachand told him that he was inflicted `lathi' blow on head by Rajendra, on both the ribs by Raghuveer and Ramkaran and on his back by Vijay. Tarachand also informed that he was taken at the house of Ramkaran, there Hari Singh and Hanuman Singh came on hearing cries and asked to spare him but he was not released though they assured for the sale price of the cow to them, and then he was admitted in the hospital by the police. On this report, a case u/s. 365, 307, 147, 148, 149 and 323 IPC was registered and the investigation commenced. During investigation, necessary memos were drawn, statements of witnesses were recorded, accused persons were arrested and weapons (lathis) of offence were recovered. After collecting necessary evidence, challan was filed against Ramkaran, Raghuveer, Sultan and Rajendra. In due course, the case came up for trial before the learned Additional Sessions Judge, Fast Track No. 2, Jhunjhunu. Charges under Sections 147, 148, 149, 365, 323, 307 and 302 IPC, were framed against the accused who denied the charges and claimed trial. The prosecution in support of its case, examined as many as 16 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge after hearing final submissions, convicted and sentenced the appellants as indicated here-in-above. We have heard learned counsel for the appellants, learned Public Prosecutor and the learned counsel for the complainant and with their assistance, scanned the material on record. Death of Tara Chand was undeniably homicidal in nature. As per the post mortem report (Ex. P. 33) the following ante mortem injuries were found on his body: 1. Lacerated wound 4 cm x 1 cm x 1/2 cm left tempoparietal region of head. No hematoma, no bony injury. 2. Diffuse swelling with bruise 10 cm x 3 cm left side of chest. On explanation his fracture of 10, 11 and 12th rib which pierced the spleen posto and ruptured. 3. Diffuse swelling epigestic on explanation pentral cavity Full of blood due to rupture of spleen. In the opinion of Dr. Pratap Singh (PW. 15), the cause of death of Tarachand was shock due to severe haemorrhage caused by ruptured spleen. All the injuries were ante mortem in nature.
(3.) DECEASED Tarachand was examined for his injuries before death by Dr. Pratap Singh (PW. 15) vide Ex. P. 32, who found the following injuries on his body: 1. Lacerated wound 4 cm x 1 cm x 1/2 cm left tempoparietal region of head. 2. Diffuse swelling with bruise 10 cm x 3 cm left side of chest. 3. Diffuse swelling with tenderness above side of abdomen. From the evidence adduced by the prosecution, it is revealed that Banwari (PW. 12) had purchased a cow for Rs. 11,000/- from appellant Ramkaran and Vidhyadhar (PW. 13) had assured to make the payment of the sale price to Ramkaran on behalf of Banwari Lal. Appellant Ramkaran and his family members harboured a grudge against the family of Vidhyadhar (PW. 13) for failing to make the said payment. On the day this incident occurred, Ghasi Ram (PW. 2) had gone to lodge a protest to Ramkaran about the incident of beating Vidhyadhar (PW. 13) by appellant Rajendra a day before the incident. This incident occurred in the evening at about 7. 00 P. M. on August 22, 2004 when Ghasi Ram was talking to Ramkaran. In this regard, Ghasi Ram (PW. 2) has deposed that when he was talking to Ramkaran, suddenly Sultan, Rajendra, Vijay and Raghuveer came armed with `lathis' and all the five exhorted to kill him. So, he ran towards fields to save himself. Then Tarachand (deceased), his brother came there on hearing the noise and he was beaten by all of them with `lathis' and then they dragged him to their house. Then on getting information from police that his brother Tarachand was admitted in the hospital at Jhunjhunu, he along with Mahadaram (PW. 8) and Birbal (PW. 9) went to the hospital and there Tarachand told them that he was inflicted `lathi' blow on head by accused Rajendra, on ribs by Raghuveer and Ramkaran, and on back by accused Sultan and Vijay Singh. He also told that he was taken by the accused to the house of Ramkaran and there Hari Singh (PW. 7) and Hanuman (PW. 4) had come to get him release but he was not released. This testimony of Ghasi Ram (PW. 2) stands corroborated by Mahada Ram (PW. 8) and Birbal (PW. 9) who accompanied Ghasi Ram (PW. 2) to hospital where Tarachand (deceased) was admitted. Hanuman (PW. 4) and Hari Singh (PW. 7) have also corroborated the fact that they had gone to the house of accused Ramkaran and they saw Tarachand lying on a cot with injuries on his body and they asked Ramkaran to release Tarachand but he refused to do so. Om Prakash (PW. 14), who had field near the field of Tarachand, has deposed that he heard hue and cry from the side of field of Tarachand and on proceeding to ascertain, he met Suresh and he along with Suresh went to the border of the field and saw Tarachand who was being beaten with `lathis' by all the accused persons. After a little while, he saw Hari Singh (PW. 7) coming from the house of accused Ramkaran and on enquiry, he told him that he along with Hanuman Singh (PW. 4) had gone to the house of Ramkaran and found Tarachand lying on a cot with injuries on his body at the house of Ramkaran and asked him to release him. The fact that cow was purchased from accused Ramkaran by Banwari Lal (PW. 2), and Vidhyadhar (PW. 13) had promised to make the payment on his behalf to Ramkaran, has also been corroborated by Banwari Lal (PW. 12) and Vidhyadhar (PW. 13 ). Om Prakash (PW. 5), ASI, Police Station Baggar, who conducted investigation of FIR No. 128/04 (Ex. P. 34) lodged by accused Rajendra S/o Ramkaran, has deposed that he rushed to the place of occurrence in a jeep and found Tarachand lying on a cot with injuries in unconscious state at the house of accused Rajendra. Then he brought Tarachand to B. D. K. Hospital, Jhunjhunu where he was admitted. According to him, he could not record the statement of Tarachand as he was unconscious though he stayed only for an hour at the hospital and handed a report to the doctor to inform him as and when Tarachand regained his consciousness and had also left a constable at the hospital. Thus, it is revealed that the incident had occurred in the manner disclosed by the prosecution. The appellants, who were examined u/s. 313 Cr. P. C. , have explained that they have been falsely implicated on account of enmity but have not explained under what circumstances Tarachand was found at the residence of Ramkaran with injuries on his body. In this regard, the learned counsel for the appellants has tried to explain that FIR (Ex. P. 34a) was lodged by accused Rajendra on 20. 8. 2004 at 11. 45 P. M. stating that accused party was attacked by Tarachand, Ghasi Ram, Vidhyadhar, Bholaram and others while they were sleeping at their residence and Tarachand was caught on the spot and the matter was reported to the police. It was further contended that the oral dying declaration by deceased Tarachand about the injuries attributed to the appellants is unconvincing as the deceased remained unconscious until death. With regard to the incident alleged on behalf of appellants, Ram Singh (PW. 6) SHO, police station Baggar has deposed that the case registered vide FIR No. 128/04 (Ex. P. 34) was investigated and `final Report' was submitted in the matter as no incident as alleged was found to have been occurred. This further verifies that the instant occurrence had taken place in the manner as disclosed by the prosecution. In Vishram and Others vs. State of Madhya Pradesh (1993 Supp (2) SCC 274) Hon'ble Apex Court had an occasion to consider oral dying declaration and the same was found to be convincing where FIR itself had mentioned about the earlier dying declaration and had also given the necessary details, and in the facts of the case, where the doctor who examined the deceased on being cross examined stated that ordinarily injuries found on head of the deceased could cause unconsciousness but it could not be positively be said that they would have caused immediate unconsciousness. ;