A.P.SEN, ACTG.C.J. - (1.) THIS appeal - D.B. Original Appeal No. 761 of 1972 - has been preferred by the State Govt. against the judgment of the Additional Sessions Judge No. 2. Jodhpur dated 28.6.1972 acquitting the respondents of offences under Sections 302, 302 r/w 34, 148, 307, 307 r/w 149 and 307 r/w 34 of the Indian Penal Code resulting in the murder of one Pukhraj and in attempt to commit murder of his son Parasmal PW/13. The connected appeal - S.B. Criminal Appeal No. 573 of 1972 - has been filed by the accused Vijaykishan against his conviction Under Section 324 r/w 34 of the Indian Penal Code for causing hurt to Parasmal PW/13 and Under Section 326 r/w 34 for causing grevious hurt to the deceased Pukhraj with a sharp -edged weapon.
(2.) THE deceased Pukhraj had obtained a decree for possession of a house from the court of Munsif Magistrate, Bilara against one Devilal, the uncle of she three accused Vijay Raj alias Vijay Kishan, Ghanshyam and Vasudeo. Vijay Raj had filed an objection under Order XXI Rule 58 of the Code of Civil Procedure the hearing of the execution proceedings was fixed in the court of the Munsif Magistrate on 30 -1 -1971 and the deceased had gone to attend the hearing. But as he was net feeling well, his son Parasmal PA/13 asked him to go home. After a while, Shantilal PW/1, another son of Pukhraj came and relieved Parasmal who had to go to the tehsil in connection with the registration of a sale deed executed by Jawanram PW/27. According to the prosecution; at about 3.00 PM., the three accused Vijay Raj, Ghanshyam and Vasudeo, who are brothers, along with their two companions, the accused Mahesh and Roop Kishore, all armed with pharsis and knives way laid Parasmal PW/13 near the hotel of one Dhaglaran while he was returning from the tehsil along with Jawanram and started assaulting him The deceased Pukhraj who was sitting on a chabntra in front of his house with Durgaram PW/12, on hearing of the alarm raised by his son Parasmal PW/13, rushed to his rescue. Thereupon, the accused persons assaulted the deceased Pukhraj with their weapons and caused multiple injuries on his body. While Vijayraj caught hold of the deceased Pukhraj, the accused Ghanshyam struck him a blow on the head with a pharsi, the accused Vasudeo with a knife and the remaining two accused Mahesh and Roop Kishoie with their weapons. The deceased Pukhraj was given three blows with a pharsi on his head, as a result of which he fell down unconscious in a pool of blood. On being informed of the assault on his father Pukhraj and brother Parasmal, Shantilal PW/1 who was in the court, immediately rushed to the spot aid found them both lying in injured condition on the ground. He took them to the Government Dispensary, Bilara and also lodged a first information report exhibit P/l at the Police Station, Bilara at 3.30 PM. i.e., within half an hour of the incident. In the report, he stated that Vijayraj and Ghanshyam had assaulted the deceased Pukhraj and Parasmal along with their 2/3 companions.
(3.) THE injured were treated for their wounds by Dr. Ashok Ramchandani at the Government Dispensary, Bilara vide injury reports exhibit P/9 and P/10. He found that the deceased Pukhraj had the following external injuries: (i) incised wound 2 3/4' x 1/2' x 1/2' with bleeding on the scalp on the left of mid line played longitudinally just behind hair line; fracture of skull bone underlying wound No. 1 along its whole length (ii) Incised wound 2' x 1/2' with bleeding oblique on the left parietal region of scalp at middle external laterally forwards fracture of skull underlying wound No. 3 along its whole length. (iii) Incised wound 2' x 1/2' x 1/2' with bleeding on the right parietal' region of scalp placed oblique on its posterior pan; fracture of skull underlying wound No. a along its whole length. (iv) Bruise 2' x 1' on the back of its forearm at middle. The doctor also found that Parasmal PW/13 had the following external injuries: (i) Stab wound 1' x 1/2' x 1/2' deep on the right side on the postero lateral aspect of flank of abdomen extending deep in to the muscular tissue inwards and down wards. (ii) Incised wound 1 1/4'x 1/2' x 1/2' deep on the hind plane of scalp longitudinally placed just behind hair line. (iii) Abrasion on 1 1/2' x 1/4' on the front of chest on left side lower aspect obliquely placed. (iv) abrasion 1 1/4' x 1/4' on the front of left shoulder. (v) abrasion on 1/2' x 1/4' on the left shoulder on its laternal aspect. (vi) abrasion on 1/2' x 1/4' on the part of abdomen on the right margin. (vii) abrasion on 3/4' x 1/2' on the part of left knee. (viii) abrasion on J' x J' on the front of right knee. (xi) abrasion on 2 1/2' x 1/4' on the middle of back at end of the twelfth thoracic vertibrae placed oblique. Shri. Amarnath, Munsif PW/8 recorded the dying declaration of the deceased Pukhraj exhibit P/12 as well as that of Parasmal exhibit D/2. The deceased Pukhraj made the dying declaration to the effect: ;