K.D.SHARMA, J. - (1.) D .B. Criminal Appeal No. 255 of 1973 61ed by Bagru Ram and Sohanlal and D B. Criminal Appeal No. 654 of 1973 preferred by the State of Rajasthan arise out of one and the same judgment of the learned Sessions Judge, Bikaner, dated April 10, 1973, by which Bagru Ram and Sohan Lal sons of Aidan were convicted under Sections 302 and 302/34 IPC respectively and each of them was sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/ -, in default of payment of fine to further suffer rigorous imprisonment for six months while Rajia, Sohan Lal son of Narain and Nam Raj were given benefit of doubt and were acquitted of all the charges claimed against them.
(2.) THE incident that led to the aforcesaid five accused persons may be briefly described as follows: - On May 17, 1971, at about 3 p.m Hari Ram son of Pokhar Ram, deceased, followed by Het Ram and Bhagirath was returning from the house of his father to his own house which is situated towards the bus -stand of village Rashisar Bada Bas. Deceased Pokhar Ram also was coming from the side of village well known as 'Pipalia well' for going to his house. When the deceased entered the main gate of Jambaji -ki -Chowki, Sohan Lal son of Aidan appellant, came out of his house with a 'Sela' i.e. spear and cried aloud 'The enemy has come, kill him On hearing his cry Bagru Ram appellant came out of his house having armed himself with a spear and the other three co -accused namely, Hem Raj, Sohan Lal son of Narain and Rajia (who have been acquitted by the trial court) also came out there from behind the Chowki of Jamabaji having spears in their hands and raising an out cry that 'Pokharia Nanda enemy has come, kill him. Out of these accused persons Sohan Lal son of Aidan appellant was the first person who inflicted a blow on the back of Pokhar Ram, deceased, from behind Thereafter Bagru Ram, struck a spear blow on the abdomen of Pokhar Ram from the front side As a result of this blow, intestines of Pokhar Ram came out and the wound began to bleed profusely. Then Sohan son of Narayan accused dealt a spear blow on the right arm pit of Pokar Ram while Man struck a blow with his spear on his left palm. Rajia accused also inflicted a blow with his spear on the left hand thumb of the deceased. On seeing Pokhar Ram being beaten, Het Ram and Bhagirath raised a hue and cry, such as, 'Minakh Mare re Minakh Mare re', man is tilled, man is killed. On hearing these cries, all the accused persons disappeared from the place of occurrence. Thereafter, Het Ram, Bhagirath, and Pokhar Ram's son Hari Ram came to the place of occurrence, where the deceased was lying on the ground. The deceased asked his son to remove him immediately to the hospital or to police station. By that time Ganga Bishan brought his bullock cart and deceased was taken in that cart to Rashisar Dispensary but before reaching the Dispensary, he succumbed to his injuries. A report of this incident was lodged with the police at police station, Deshnokh, by Hari Ram son of the deceased the very day at about 4 30 p. m, The police registered a criminal case under Sections 302, 148 and 149, IPC on the basis of the report made by Hari Ram and made the usual investigation into the matter. Pratap Singh, Station House Officer, Deshnckli, rushed to village Rashisar and inspected the dead body and prepared a Panchnama Ex. P 6 over it. From there he reached the place of occurrence and prepared a site plan and a site inspection memo at the instance of Hari Ram complainant. When he returned to police station, Deshnokh, he found Sohan Lal son of Aidan and Mam Raj accused, who were brought there. He arrested these accused persons and could not make further investigation on May 19 and 20,1971, as he was busy with the investigation of some other murder case. In the night of May 20, 1971, he arrested Bagru Ram and Rajia accused. After his arrest Sohan Lal son of Aidan accused gave the Station House Officer an information on May 22, 1971, that he had concealed one spear, having a bamboo handle, inside the bedding lying in his residential house. The Station House Officer recorded the above information in memo Ex.P. 16 and recovered the spear from the house of Sohan Lal son of Aidan accused at the latter's instance and in consequence of his above information, the spear was seized and sealed properly in the presence of Motbirs. Ram Raj accused also supplied an information to the Station House Officer while in police custody which led to the recovery of a spear having a bamboo handle from his house wherein it was lying concealed in a heap of grass. Likewise on May 22, 1971, one spear was recovered from the residential house of Bagru Ram also at the latter's instance and in pursuance of his information recorded by the Station House Officer under Section 27 of the Evidence Act in a memo Ex. P. 18. On May 23,1971, Rajia accused also furnished an information to the Station House Officer while in police custody that he had kept one spear having a bamboo handle inside his residential house The above information was recorded by the Station House Officer in a memo Ex. P. 19. In pursuance of this information, the Station House Officer recovered spear from the house of Rajia accused at the latter's instance. Soban Lal son of Narayan accused had absconded. So proceedings under Sections 87 and 88, CrPC were taken against him. He, however, surrendered himself in the court of the Munsiff Magistrate, Bikaner, on July 21, 1971 and thereafter was taken into police custody. Sohan Lal son of Narayan accused also gave the Station House Officer an information while in police custody which led to the recovery of a spear from his field wherein it was lying concealed in the heap of grass known as 'Chads'. The spears so recovered were seized and sealed by the Station House Officer in the presence of Motbirs. The dead body of Pokhar Ram was taken to the Primary Health Centre, Deshnokh, where post mortem examination was performed upon it by Dr. Gopal Lal Acharya on May 18, 1971. The Doctor examined the dead body and found the following external injuries on it. 1. penetrating wound 1.6' x 0.7' deep to abdominal cavity. A part of small intestines full of blood protruding out from the wound, edges are clean cut angles at both extremities of wound are sharp; grievous in nature by sharp weapon. Situation: : 3 2' from umbilicus above and 1' laterally from medial line on right side of abdomen; 2. incised wound .8' x .2' x .3' deep above inverts, right anterior axially fold, simple in nature by sharp weapon; 3. incised wounds (i) 1.6' x .6' x .6' x .4'; (ii) 1.5' x .3' x .4' distally upwards middle palmer surface of left hand, left of the second, third and fourth meta corpal bones fractured, grievous in nature, by sharp weapon;
(3.) INCISED wound 1.2' x .4' x .4' deep laterally down wards; right side of back 12 5' below from seventh cervical spine and 3 8' laterally from vertebral column, simple in nature by sharp weapon ;;