SHARMA, J. - (1.) CHALLENGE in these appeals is to the judgment dated July 17, 2003 of the learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur, whereby the appellants, four in number, were convicted and sentenced as under:- Bachchu Singh & Devi Prasad: Under Section 302/34 IPC: Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Girraj Prasad and Laxman: Under Section 302/109 IPC: Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month.
(2.) THE incident alleged to have occurred on February 2, 1993 at 4 PM in village Kumher District Bharatpur. However written report was transmitted by post from SMS Hospital Jaipur to SHO Police Station Kumher by informant Vinod Kumar Sharma on February 11, 1993. THE report was received on February 17, 1993. It was interalia stated in the report that on February 2, 1993 at 4 PM while the informant and his uncle Ramesh Chand (since deceased) were in the field and watering the crop and mother of informant was collecting green fodder, Girraj, Laxman, Devi and Bachchu armed with lathi and Pati came over there and started hurling abuses. THEy surrounded Ramesh Chand and asked him as to why he carried water by the side of their med (boundary) of field. Ramesh Chand replied that water always used to be carried by the side of boundary of the field. THEreupon Laxman and Girraj exhorted Devi to kill Ramesh Chand and Devi inflicted blow with Pati on the head of Ramesh Chand, as a result of which he fell down, Bachchu Singh then inflicted another blow on the head of Ramesh Chand. When informant and his mother intervened Girraj and Laxman caused injuries on the person of his mother. On raising alarm Lal Chand and Jahanu Koli intervened. Injured was removed to hospital Kumher from where he was referred to Bharatpur and Jaipur. It was further stated in the report that since all family members were involved in treatment of Ramesh Chand, who was admitted to SMS Hospital Jaipur, the report could be sent on February 11, 1993. On that report case under Sections 307, 447 and 34 IPC was registered and investigation commenced. During the course of investigation injured Ramesh Chand succumbed to his injuries. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur. Charges under Sections 302, 109 and 34 IPC were framed against the appellants, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 20 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Six witnesses were examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have heard the submissions advanced before us by learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant and scanned the material on record. Injuries of Ramesh Chand were examined prior to his death vide injury report (Ex. P-5), according to which following two injuries were found on the person of Ramesh Chand:- 1. Diffuse swelling with red bruise 6 x 3cm on Lt. side of fronto parietal region. 2 Diffuse swelling on Rt. eye brow Ramesh Chand succumbed to the injuries on March 10, 1993 and according to Dr. H. L. Bairwa (Pw. 12) who performed the autopsy report and drew postmortem report (Ex. P-13) the cause of death was coma due to injuries to skull and brain. We also noticed that Bhagwani Devi (Pw. 5) vide injury report (Ex. P-4) received following injuries:- 1. Bluish bruise 4 x 3cm on Rt. buttock upper part. 2. Bluish Bruise 4 x 2. 5cm Rt. thigh upper 1/3 part 3. Abrasion 2 x 1. 5cm on Rt. tibia shown upper 1/3rd with hard scar. 4. four abrasions 1/4 x 1/4 cm each 2cm to 1. 5cm in between & dorsum Lt. forearm lower. 5. Bluish bruise 1 x 1/2 cm on t. index finger. Coming to the prosecution evidence adduced at the trial we notice that Vinod Kumar (Pw. 1) in his deposition stated that on February 2, 1993 at 4 PM while he and his uncle Ramesh Chand (since deceased) were in the field and watering the crop Girraj, Laxman, Devi and Bachchu armed with lathis and Pati came over there and started hurling abuses. They surrounded Ramesh Chand and asked him as to why he carried water by the side of their med (boundary) of field. Ramesh Chand replied that water always used to be carried by the side of boundary. Thereupon Laxman and Girraj exhorted to kill Ramesh Chand and they caught holds of hands of Ramesh Chand and Devi inflicted blow with Pati on left side of the head of Ramesh Chand, as a result of which he fell down, Bachchu Singh then inflicted another blow on the head of Ramesh Chand. Meanwhile when his mother with the purpose of saving his uncle, lay on her, Girraj and Laxman lift his mother and threw her away and Girraj gave lathi blow on back of his mother. He (vinod) watched the incident from a distance of 20 ft. On raising alarm Lal Chand and Jahanu Koli came and intervened. Meanwhile his father Mangu Lal reached on the spot. The injured was removed to hospital Kumher from where he was referred to Bharatpur and Jaipur. On 10th when operation of his uncle was conducted the Doctor enquired about lodging the report thereafter the report was sent to police on February 11, 1993.
(3.) BHAGWAN Dei (Pw. 5) deposed that on February 2, 1993 while she was collecting fodder and her Dewar (brother in-law) Ramesh was watering the field, whereas Jahan was working in the field of Babu Patwari and Vinod was at the Engine, Girraj, Laxman, Bachchu and Devi armed with lathis and pati came over there and started hurling abuses at Ramesh. Thereafter Laxman and Girraj caught hold of hands of Ramesh and Devi inflicted blow on left side of head of Ramesh as a result of which he fell down, then Bachchu inflicted blow on head of Ramesh, blood started oozing. She lay on Ramesh to save him but Girraj and Laxman lifted her and threw her away. They also inflicted blows with lathi on her person. According to her Jahan, Lal Chand and Vinod witnessed the incident and Ramesh died after one month and 5-7 days of the incident. The appellants examined defence witnesses to show that the incident did not occur in the manner narrated by the prosecution witnesses. Appellant Bachchu Ram (Dw. 1) in his deposition stated that on February 2, 1993 around 4-5 PM while he was on the Engine and his brother Shiv Kumar was watering the field. They had sown the crop of wheat in the field. A stone was laid by the side of Med (boundary wall) to stop the flow of water to the adjacent field where Mangu, Ramesh, Rajjan, Vinod, Bhagwan Dei, Lal Chand (co-brother of Mangu) and labour Jahan were present. Ramesh asked Shiv Kumar to remove the stone from boundary wall which was a common wall belonged to both the sides. Shiv Kumar said Ramesh with folded hands that the stone existed there for a long time and it did not cause any loss to them. Ramesh then started hurling abuses and exhorted others to smash the stone and got the Engine halted. All of them then entered to his field, Ramesh and Vinod smashed the stone, broke open the Engine. When he (Bachchu Ram) raised alarm his father, Om Prakash, Bhagwan Devi and Laxman came over there. Ramesh inflicted blow with spade on his head. Mangu and Vinod gave blow with lathi as a result of which he fell down. He was taken to Kumher Hospital from where he was referred to Bharatpur. His injuries were examined by Doctor vide injury report Ex. D-11. When police did not file charge sheet he instituted complaint in the Court. Cognizance was taken against the complainant party vide order Ex. D-9. Testimony of Bachchu Ram gets corroboration from the statements of Laxman Prasad (Dw. 2 ). Injury report Ex. D-11 of Bachchu Ram reads as under:- 1. Lacerated wound 4 x 1cm x bone deep on Lt. side parietal region. 2. Abraded bruise 4 x 1cm on Rt. mid scapular area 3. Red verticle bruise 8 x 2cm on Lt. scapular area 4. Red verticle bruise 4 x 2cm on Rt. mid back. 5. Oblique two parallel bruises 12 x 1cm each with 1cm in between on mid back 6. Oblique red two parallel bruises 10 x 1cm each with gap of 1cm in between at both ends. 7. transverse red two parallel bruises 15 x 1cm at both ends on back. 8. Abraded bruise 3 x 1cm on lower 1/3rd Rt. forearm. 9. Abrasion 2 x 1cm at proximal phalynx Rt. hand 10. Diffuse swelling on Rt. shoulder joint. ;