R.L.GUPTA, J. - (1.) BIRBAL Ram, Gumana Ram along with Pooran were tried by the learned Additional Sessions Judge, Bikaner for causing the murder of one Mana Ram Pooran was charged for the offence under Section 109 and 302 I.P.C. but he was acquitted of the charges. Birbal Ram was convicted for the offence under Section 304, Part II, I.P.C. and Gumana Ram for the offence under Section 304 -Part II read with Section 34, I.P.C. Both were sentenced to rigorous imprisonment for four years vide Judgment dated 27.9.1975. Aggrieved by their conviction and sentence, this appeal bad been preferred by them.
(2.) IT is alleged by the prosecution that when Likhma Ram PW1 was gracing his 'rewar' (herd of sheep) the deceased Mana Ram was also grazing his rewar, nearby. Manaram is the younger brother of Rewatram. The appellant Gumana ram came there and told Manaram that his brother (Rewatram) has changed his 30 sheep so he had to leave the job of grazing the 'rewar' of Rewatram Mararam, in turn asked him not to make false allegations against his brother However, there were wordy exchange and Mana Ran gave two slaps to Gumanaram Gumanaram left the place leaving behind his 'rewar' It is further alleged that at about 2 -3 p m. while Likhmarm and Manaram were taking rest after their meals the appellants Birbalram and Gumana Ram came there with 'of this' in these hands and challenged Manaram to be prepared. Birbalram inflicted some that blows including the blow which is said to be the cause of the injury which ruptured the spleen and subsequently resulted in the death of Mana Ram. Likhmaram however, thereafter caught hold of Birbalram then Gumanaram inflicted certain blows on Mana Ram The condition of Mana Ram became serious and the appellants took him to be dead. Gumana Ram then got Birbalram rescued from the hands of Likhmaram and then both the appellants went away. Soon after Raja Ram, the father of deceased, Rewat Ram. the brother of the deceased and one relation Manaram PW 6 also reached at the spot and fold Mana Ram deceased in a serious condition It is further alleged that Manaram also named Bubal as the person who inflicted injuries to the deceased The victim was taken on a cot brought from the 'dhani' of Kheraj took him to village Kanali. They wanted to take hit to the hospital Loonkarasar but because of non -availability of any vehicle he could not be taken to the hospital and at about 5 a.m. Mana Ram scorched to his injuries. Likhma Ram thereafter started for lodging the report to the police. On the way he suffered bam fever due to cold and stayed with one Govindram at village Manna There he got some medicines and tea Anyhow he subsequently started to the police station in the night and reached at police station Mahajan at about 1 a.m. on 18 -2 -74 The occurrence is said to be of 16 -2 -74 at about 2 -3 pm The first Information Report was lodged by him on 18 -2 -74. At to the motive for the incident, it is alleged that Gumanaram was previously? A shepherd for the 'rewar' of Manaram's brother Rewat Ram and Gumanaram had taken 30 sheep from Rewat Ram for which it was agreed between Rewatram and Gumanaram that Rewatram would not charge any interest against the price of 30 sheep and Gumanaram would not charge any charges for grazing the 'rewar' of Rewatram However, Gumanaram left the 'rewar' of Rewatram and it was alleged by Gumanaram that the sheep belonging to him were changed by Rewatram for the sheep of inferior breed. That was the reason that he made the complaint to Manaram of the day of occurrence. The police started investigation and after necessary investigation challaned the appellants. After trial they were convicted and sentenced as pointed out above. The autopsy of the deceased Mana Ram was performed by Dr. Chandra Mohan Bagarhatta P.W. 2 who prepared the post mortem report Ex P. 12 It cannot be disputed that Manaram did due to rupture of the spleen. The point for consideration is as to whether the appellant were the authors of the injuries on the person of the deceased Manaram. It may be said that the is one sole eyewitness Likhmaram P.W.I. His evidence has been -discussed by the learned Additional Sessions Judge in detail The learned Counsel for the appellant have assailed his testimony that he is unreliable and from his testimony it can be inferred that he was not on the spot when the alleged occurrence is said to have taken place. His submission is that there is delay in the lodging of the F.I.R. by 36 hours. This delay has two effects. Firstly, it shows that Likhmaram was not an eye witness; had he been an eye witness he should have taken early steps to lodge the report. Secondly, delay in lodging the F.I.R. makes the prosecution case suspicious and the benefit accrues to the appellants. Besides this there are various contradictions in the statement of Likhmaram which he made before the court and which were recorded under Section 161 Cr.P.C. Had Likhmaram been on the scene of occurrence, in the circumstances it is natural that he should have received certain injuries on his person. He is also an interested witness. Thus the contention of the learned Counsel for the appellants is that Likhmaram should not be relied upon. As regards the statements of Rajaram P.W. 5 and Manaram P W. 6 his submission is that if Birbalram went to the house of Rajaram to inform him that the appellants could commit some mischief with his son and thereafter went from there it was but natural that they should have immediately followed the appellants particularly when they were on camel back. It may however, be said that from the prosecution evidence it has come that these witnesses reached the spot within 10 -20 minutes of the offence.
(3.) THE learned Public Prosecutor assisted by Shri H.M. Lodha has submitted that in the circumstances of the case there is no inordinate delay in lodging the F.I R. The place where the incident took place is about 6 8 miles from village Kanalal and Kanalail is about 24 miles from the police station, Mahajan. It was the first concern of Likhmaram and others to attend the victim whose condition was serious and when Manaram breathed his last at about 5 a.m. then after sometime one could think of going to lodge the report. Likhmaram went for the purpose but unfortunately he fell if on the way and had to stay at village Manera with Govind Ram and even though he was not well and was suffering from fever he started even in the night when he felt some what better for the police nation and lodged the report at a m on 18 -2 -1974. In the circumstances the delay has been explained by the prosecution. As regards the reliability of the prosecution witnesses, his contention is that Likhmaram who is the eye witness was cross examined at length but nothing substantial was brought out from his cross examination which could in any way help the accused -appellants.;