S. S. Byas, J. - (1.) Appellant Om Prakash is the son of the other appellant Chhotey. They have been convicted under Section 302 I.P.C. and each has been sentenced to imprisonment for life by the Additional Sessions Judge, Dholpur, by his judgment and order dated December 7, 1987.
(2.) Briefly recalled, the facts and circumstances culminating in the prosecution and conviction of the appellant are, that P.W. 1 Smt. Maya is the widow of Baglu. Baglu was the real brother of appellant Chhotey. They all resided in Village Semra, Police Station Sepau, District Dholpur. The continuous recitation of 'Ramayan' was going on in the village Temple in May 1985. At about 10 A.M. on 29.5.1985. P.W. 1 Smt. Maya and her husband Baglu went to the temple and donated a sum of Rs. 50/- there. Thereafter the husband and wife were returning to their house. When they left the temple and were in their way near the Dharam-shala, the two appellants accompanied with Smt. Shyamoli and Pedda came from the other side They blocked the way of Maya and her husband Baglu. Baglu asked the appellants and their companions to allow them to go. The appellants asked Baglu as to where he was going. Baglu told them that he was going to village Rajora to beat the drum at Prem Singh's house as Perm Singh had invited him there. Appellant Om Prakash told Baglu not to go there as the house of Prem Singh was not in his 'Birat' but was in the Birat of the appellants. This led to the exchange of some hot words. Appellant Om Prakash struck a blow of lathi on the head of Baglu. Appellant Chhotey also struck a blow of lathi again on the head of Baglu. Baglu fell down. Smt. Shyamoli and Pedda put their feet on the neck of Baglu. Mst. Maya tried to intervene and lay over her husband Baglu to protect him. She was also not spared and was administered blows by the appellants Om Prakash and Shyamoli. Baglu did not survive and passed away out the spot. It may be mentioned that Smt. Shyamoli is the wife of accused Chhotey and Peeda is his son. Smt. Maya raised cries. Hearing her out cries, many persons, viz., P. W. 2 Kishan Das. P.W. 3 Chob Singh, P.W. 4 Shishupal, P.W. 7 Babulal and Dwarka, who were on the temple, rushed there. Seeing them, the appellants retreated and went away. Babulal and others took care of the dead body of Baglu. Smt. Maya went to the Police Station, Sepau, where she presented a written report, Ex. P. 8. of the incident at about 2.30 P.M. The Police registered a case and proceeded further. The Investigating Officer Liladhar, Head Constable. Police (P. W. 10) arrived on the spot and prepared the site-plan. He found the victim's dead body lying at his house. The Investigating Officer prepared the inquest report Ex. P. 4. The post-mortem examination of the victim's dead body was conducted at about 4.00 P. M. by P. W. 11 Dr. Babulal, the then Medical Officer-in-charge. Primary Health Centre, Sepau. The Doctor noticed the following inte-mortem injuries on the victim's dead body. "1. Bruise 2" x1/2" on the right eye lid. 2. Bruise 1" x1/2" on the left eye lid. 3. Bruise 1" x1/2" on the upper ⅓rd of the left arm. 4. Bruise 8" x3" on the left scapuler region. 5. Bruise 3" xl" on the middle of vertebral column. 6. Fracture of Rt. parietal bone of skull. 7. Fracture of left occipital bone of skull. 8. Compression of brain substance." The doctor was of the opinion that the cause of death was injury to skull bones and injury to brain substance leading to brain haemorrage and shock. The post-mortem examination report issued by the doctor is Ex. P/12. The injuries of Smt. Maya were also examined by Dr. Babulal. He found five simple injuries on her body as mentioned in the injury report, Ex. P/13 prepared by him. The appellants were arrested. During investigation, it was found that Pedda was a child below 16 years in age at the time of the incident. A case against him was, therefore, filed in the Children's Court. The police submitted a crime report against the appellants and Smt. Shyamoli in the court of the Additional Chief Judicial Magistrate, Dholpur, who in his turn, committed the case for trial to the court of Sessions. The case came up for trial before the learned Additional Sessions Judge. Charges under Sec. 302 and in the alternative, under Sec. 302/34 I.P.C. were Famed against all of them, to which they pleaded not guilty and claimed to be tried.
(3.) In support of its case, the prosecution examined 11 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Additional Sessions Judge held that there was no incriminating evidence against accused Smt. Shyamoli. The circumstances also did not point out her involvement and Sec. 34 I.P.C. had no applicability. She was, therefore, acquitted of the offences she was charged with. Learned Additional Sessions Judge further held that the deceased had received two fatal injuries on his head, one of which was caused by the appellant Chhotey and the other was caused by appellant Om Prakash. He, therefore, held both of them guilty under Section 302 l.P.C. and sentenced them as mentioned at the very out-set. Aggrieved against their conviction, the father and the son have came up in appeal.;