N. C. SHARMA, J. - (1.) THIS is an appeal by Ram Singh and Madan Singh against their conviction made and sentence passed by the Sessions Judge, Merta by his judgment dated September 8, 1982 whereby, Ram Singh appellant was convicted under section 302 I. P. C. and sentenced to imprisonment for life and Madan Singh appellant was convicted under sections 326 read with section 34, 323 I. P. C. and sentenced respectively to undergo rigorous imprisonmerit for seven years with fine amounting to Rs. 500/-, rigorous imprisonment for three months with fine amounting to Rs. 100/- and rigorous imprisonment for one month with fine amounting to Rs. 100/ -.
(2.) A report Ex. P. 8 was not lodged by Daulat Singh (P. W. 7) at Police Station, Pudu Kalan District Nagaur on July 11, 1981 at 2. 30 P. M. through Ganpat Singh (P. W. 9) which led Gugan Ram, Station House Officer, of the said Police Station to reach to the place of incident in village Mandal Jodha. This report was written and signed by Daulat Singh (P. W. 7) at village Mandal Jodha and was sent by him to Ganpat Singh (P. W. 9 at Merta through Bhanwar Singh (P. W. 4) with instructions that Ganpat Singh may present it at the Police Station. This report Ex. P. 8 simply mentioned that the dead body of Jatan Singh of village Mandal Jodha was lying on a thorough-fare in front of the primary school. It was requested to the Station House Officer to take care of the dead body immediately after coming on the spot because it was not proper to let a dead body remain lying for a considerable time as the same was lying in the middle of a public thorough-fare. Gugan Ram, Station House Officer, reached the place of incident in village Mandal Jodha at 3. 35 P. M. on the same date. At Mandal Jodha, Gyan Singh (P. W. 8), who was called from Merta City to the village, got a first information report Ex. P. 7 written from Raghuvir Singh, Sarpanch (P. W. 5) and lodged it with Gugan Ram, Station House Officer, at village Mandal Jodha, itself at 3. 40 P. M. This first information report was sent by Gugan Ram, Station House Officer, to the Police Station, Padu Kalan, for registering a case under section 302 read with section 34 I. P. C. through Boot Constable Ganga Singh. In this first information report, Gyan Singh (P. W. 8) mentioned that he was employed as driver of the jeep of Gordhan Soni at Merta City. He had gone with the jeep to village Riyan on July 10, 1981 and he received informa-tion there that he should reach village Mandal Jodha at the earliest. He accor-digly reached his village Mandal Jodha at about 2. 30 or 3. 00 P. M. and found that the dead body of his cousin Jatan Singh was lying near the bus stand in a common "guwar". Raghuvir Singh Sarpanch, Gulab Singh Upsarpanch and Mohan Lal Patwari were present near the dead body. It was mentioned that at about 7. 00 A. M. of that day while Jatan Singh had come to the bus stand to go to Merta City, he was beaten to death by Madan Singh and Ram Singh by dagger and lathi. The daggar was in the hand of Ram Singh who stabbed Jatan Singh thrice by it. Two injuries were inflicted on the back and one on the left side by the dagger. It was further mentioned that complete incident can be enquired from Karan Singh (P. W. 10) who was son of Jatan Singh deceased and who was present at the time of the incident. Gugan Ram, Station House Officer, prepared an inquest report Ex. P. 9 and site plan Ex. P. 11 along with memo of site inspection Ex. P. 10. He seized two bags along with articles therein lying near the dead body of Jatan Singh under the seizure memo Ex. P. 12. Blood smeared sand and plain sample of sand were also taken from the spot and sealed. Post-mortem examination of the dead body of Jatan Singh was got conducted through Dr. Satayanarain Sharma (P. W. 1) who gave his report Ex. P. l. After the post mortem examination, the blood stained clothes were seized from the dead body of Jatan Singh under the seizure memo Ex P. 14. Police statements of some of the prosecution witnesses were recorded on July 12,1981. Both the appellants and acquitted accused Neer Singh were arrested on July 15, 1981. According to Gugan Ram, Station House Officer, Madan Singh appellant at the time of his arrest was wearing blood stained clothes and the same were seized on July 21, 1981 under the seizure memo Ex. P. 6. Ram Singh appellant, while in custody, gave information Ex. P. 21 with regard to the dagger in the pursuance of that information dagger Article 3 was recovered by digging a pit near the western part of Ram Singh's bara. Ram Singh appellant also got recovered Dhoti Article 4 which he was wearing at the time of the incident from his house and the same was seized by the Police. Madan Singh appellant also gave information with regard to the Lathi Article 5 and the same was recovered by Gugan Ram from the house of Madansingh. Guganram recorded, police statements of the remaining prosecution witnesses on July, 19 and 22,1981. After necessary investigation, a charge-sheet was filed by the Police against the appellants and Neer Singh in the court of the Additional Munsif cum Judicial Magistrate. Merta who commite the appellants and Neer Singh for trial to the court of Sessions Judge Merta on Aug. 14, 1981. The Sessions Judge, Merta charged Ram Singh appellant for offence under section 302 I. P. C, Madan Singh appellant for offences under section 302 read with section 34. 323 and 352 I. P. C. and Neer Singh for the offences under sections 302 read with sections 34 and 323 l. P. C. All the three accused did not plead guilty and claimed to be tried. After trial the Sessions Judge found the appellant Ram Singh guilty for the offence under section 302 I. P. C. He found Madan Singh appellant as guilty for the offences under sec. 326 read with secs 34, 323 and 352 I. P. C. Both the appellants were sentenced as already mentioned above. So far as Neer Singh was concerned, he was acquitted for both the charges framed against him.
(3.) KARAN Singh (P. W. 1) is the son of deceased Jatan Singh and he is the spokesman of the prosecution case. According to him, his father Jatan Singh along with himself, his grand mother Kunj Kanwar (P. W 11) and his father's Cousin sister Marudhar Kanwar (P. W. 6) had reached the Bus Stand of village Mandal Jodha on July 11, 1981 at about 7. 00 A. M. Jatan Singh had two bags containing his goods in his hands. Chhitar Singh (P. W. 14) was employed as Corporal at Air Force Station Agra. He had some agricultural land in village Mandal Jodha. In respect of that agricultural land some litigations were going on between Chittar Singh (P. W. 14) and the appellants and Neer Singh in the court of Sub-Divisional Officer Merta. As Chhitar Singh was employed in Air Force and was posted out side his village, he was not in a position to himself look-after the litigations. He had, therefore, constituted Jatan Singh deceased, as his Attorney to look after the litigations on his behalf under the Power of Attorney Ex. P. 20 While Madan Singh appellant was employed at Jaipur, Neer Singh was employed in Haryana. A few days before the incident, mother of Chhitar Singh (P. W. 14) had expired and her Mrityu Bhoj was to be performed on July 9, 1981. Chittar Singh had called Madan Singh and Neer Singh by telegram to attend the Bhoj of her deceased mother and For this purpose they had respectively come from Jaipur and Haryana. The appellants and Neer Singh had participated in the Bhoj. According to KARAN Singh, when he along with his father, grand-mother and father's Cousin sister had reached the Bus Stand, the appellants also came over there and they asked Jatan Singh as to why he had obtained a Power of Attorney from Chhitar Singh. In reply Jatan Singh told that Chhitar Singh had. out of his own sweet will, constituted him as Attorney and if Chhitarsingh wished to take back the Power of Attorney Ex. P. 20, he had no objection to it and he can take it back after accompanying with him to Merta. Madan Singh thereupon hurled valger abuses and exhorted Ram Singh appellant to kill Jatan Singh. Madan Singh gave a lathi blow on Jatan Singh but the latter saved himself, Thereafter Ram Singh appellant gave a stab by the dagger on the back of Jatan Singh. Madan Singh then wielded a lathi blow on the head of Jatan Singh. Ram Singh appellant gave two more stab wounds with the dagger in his hand on the body of Jatan Singh. Neer Singh was also present there and he was throwing stones towards Jatan Singh. Kunj Kanwar and Marudhar Kanwar intervened to rescue Jatan Singh and they also sustained some injuries. Jatan Singh fell down and died on the spot. According to KARAN Singh, Bhanwar Singh (P. W. 4), Chhitar Singh (P. W. 14) and Kesa Rat Jat were also present when this incident took place. Daulat Singh (P. W. 7) also arrived at the spot. Daulat Singh sent KARAN Singh, his grand mother and his father cousin sister to their home in the village. Gugan Ram S. H. O. arrived at village Mandal Jodha and then KARAN Singh was also called and site plan and inquest report were prepared The two bags of Jatan Singh were also seized by the Police. According to KARAN Singh the appellants were annoyed with Jatan Singh deceased because he used used to look after the litigations of Chhitar Singh against the appellant as holder of Power of Attorney from Chhitar Singh. Although Jatan Singh had also been invited by Chhitar Singh to attend the Mrityu Bhoj of his mother but Jatan Singh and his family members did not attend the Mrityu Bhoj because on than date the appellants and Neer Singh had come in front of the house of Jatan Singh and had abused him and had told that if he attended the Mritayu Bhoj they will kill him. According to the Sessions Judge. Merta there was no dispute that Jatan Singh had died in the morning of July 11, 1981. Relying upon the evidence of Marudhar Kanwar (P. W. 6) Karan Singh (P. W. 10), Kunj Kanwar (P. W. 11) and Dr. Satya Narain Sharma (P. W. 1) it was held that Jatan Singh had suffered a homicidal death and not a natural one. Before proceeding further, we may mention the version of the incident as given by the appellants and Neer Singh in their examination under section. 313 Cr. P. C. According to Madan Singh appellant, he was returning from village Mandal Jodha to Jaipur where he was employed. Ram Singh appellant had come to the bus stand at Mandal Jodha in order to see off Madan Singh, at that time Jatan Singh deceased and his son Karan Singh also came there. Both were armed with lathies. Jatan Singh told Madan Singh ps to how and why the compromise was arrived at and that he should be paid Rs. 10,000/ -. Madan Singh refused the demand and thereupon Jatan Singh hit a lathi blow on his head. Karan Singh also gave a lathi blow on his leg. As a result of these two lathi blows he fell down and could not get up. Jatan Singh took out a dagger and wanted to kill him, but Ram Singh appellant came to his rescue He became unconscious and came to senses at the next stop of the Bus. He does not know who took him in the Bus. When he came to senses he alighted. in another bus and went to Police Station Padu and lodged a report. The Officer Incharge of the Police Station sent him to the hospital and after getting the injury bandaged the Police constable brought him back to the Police Station, So far as Ram Singh appellant is concerned, he has stated that he had gone to the Bus Stand to see off Madan Singh. At that time Jatan Singh deceased and his son Karan Singh arrived. Jatan Singh told Madan Singh as to who he was to get the matter compromised and that he should arrange payment of Rs. 10,000/- to him. On refusal by Madan Singh, Jatan Singh gave a lathi blow on the head of Madan Singh. When Madan Singh was going to inflict a second lathi blow, he intervened to rescue Madan Singh. In the mean while Jatan Singh took out a dagger and wanted to kill him. He caught hold of the dagger and while he was trying to snatch the dagger from Jatan Singh, it had hit Jatan Singh on his abdomen. Karan Singh had also inflicted a lathi blow on the leg of Madan Singh. He lost his recollection as to what happened thereafter. ;