R. S. VERMA, J. - (1.) APPELLANT Chelia, along with co-accused Panchiya and Laliya were put up for the trial before the learned Sessions Judge, Jalore, for offences u/ss. 302, 302/34,452. 324/34 and 323 IPC, after due commitment. The learned Sessions Judge, after due trial and by judgment dated August 31 1982 convicted the appellant-Chelia of an offence u/s 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 200/- and in default to undergo one month's rigorous imprisonment. He further convicted him for an offence u/s 447 I. P. C. and sentenced him to undergo three month's simple imprisonment on this count. Both these substantive sentences were directed to run concurrently Co-accused Laliya was convicted of an offence u/ss 323 and 447 IPC however the other co-accused Panchiya was acquitted of the charges framed against him Aggrieved by his conviction and sentenced passed against him. Chelia has come in appeal.
(2.) BRIEFLY stated, the prosecution story is, that on the day next to Holi, i. e. 10-3-82 deceased Sabiya had gone to ease himself in the jungle. At about 7. 00 p. m. he was returning from the jungle and reached near the house situated in village Sikwara. Sabiya was seen crying and running towards his house. He was followed by the accused-appellant and his two co-accused Panchiya and Laliya. Laliya was armed with lathi, Panchiya was armed with a sword, while the appellant was armed with a dagger. The deceased entered his gwari, followed by the appellant and his companions. Pw 1 Nawa (Navia) is the brother of the deceased and had his gwari adjoining to the gwari of the deceased. Pw 1 and his wife Smt. Jama saw the accused-appellant and his companions chasing the deceased. Likewise, Pw 2 Laxmi, mother of the deceased, Pw 3 Teepu, wife of the deceased also saw this. They were already present at the house of the accused at that time. The prosecution story further is that the appellant and his companions opened an assault on the deceased with the result that Sabiya fell down on the ground. He tried to get up at which the appellant stabbed the deceased on the chest twice. Co-accused Panchiya dealt a blow from the sword at the deceased but Smt. Teepu intervened with the' result that she received some injuries on her left hand. Smt. Laxmi also tried to intervene, at which Laliya gave lathi blows to her. Co-accused Panchiya was carrying a towel with him. After the assault the accused-appellant as also his companions made good their escape and while they were running, the towel of Panchiya got dropped in the gwari of the deceased. It is alleged that the eye witnesses present at the scene of the occurrence, raised an alarm, at which Jai Singh and Dhook Singh came there. Thereafter Naviya and his companions lifted Sabiya and took him to the angan of the, house of the deceased. Naviya narrated the incident to Jai Singh and Dhook Singh. He then left them with the body of the deceased, who had already succumbed to his injuries and went to one Dalla and got a report Ex P/l, scribed about the incident. With this report he proceeded on foot to Police station, Modra, which is at a distance of 6 kos (1. 2 miles) from Seelwara. He presented this report to S. H. O. , Modra, Shri Sajjan Singh, PW 12. Shri Sajjan Singh made some enquiry from Naviya and it was revealed that the appellant had delivered some iron sheets to Sabiya and on this account the appellant had been demanding Rs. 30/- from Sabiya. However, Sabiya refuted this demand and it was out of this grouse that the appellant and the co-accused persons made the aforesaid assault. Upon such information, Sajjan Singh registered a case u/ss. 302/34, 324 & 323 I. P. C. A formal FIR Ex. P/23 was drawn up in this regard and the same was forwarded to the court of Munsif and Judicial Magistrate, Bhinmal. Sajjan Singh, after registering the case, proceeded to the spot and inspected the site. He saw a stream of blood going from the place of assault to the 'angan' of the deceased (for a distance of 45 feet ). He found blood spots at some places in the gwari. He also found a towel lying in the gwan and allegedly belonging to co-accused Panchiya. Shri Sajjan Singh drew a memo Ex. P. 2 with regard to this site inspection and also prepared a site plan Ex. P. 3. He examined the dead-body of the deceased. He, inter-alia found two stab wounds on the chest of the deceased and also found that the shirt and baniyan of the deceased had received cuts at two places. He prepared a memo of this examination Ex. P/4. He recovered the towel lying on the spot and duly sealed the same. He also collected blood-stained soil as also control soil from the scene of the occurrence. He thereafter arranged for the post-mortem of the deceased. This post-mortem examination was conducted by Dr. Mohanlal Paniya, PW 7, who found following injuries on the body of the deceased : - "1. Incised wound 3/4 "1/4"x1/4" on the left thumb. Cutting of thumb nail was there. 2. Lacerated wound l-1/2"x l/3"x l/3" on the right parietal bone longitudinally. 3. Incised stab wound 3"x1/2"x 2-1/2" transversely on the epigastric region. 4. Incised stab wound 2"x1/4"x1-1/2" on the epigastric region transversely near injury No. 3. " On opening the body he found that 9th coastal cartilage was fractured near junction of sternum. There was rupture of right verticle lower part of size 1/2"xl/3"xl/3". The abdomen muscles were also found ruptured by him. There was also rupture of peritoneum canal which was full of fluid blood. He found two ruptures on the spleen one on the right lobe dorsal surface measuring 1-1/2x1"x3/4" and the other on left lobe anterior surface 3/4"x3/4"x1/2". In the opinion of the doctor the injuries were anti-mortem in nature. He opined that the deceased had died due to shock and haemorrhage caused due to rupture of liver and heart. According to him injury to liver has been caused by injury No 3 and rupture to heart had been caused by injury No. 4, and both the injuries were individually as well as collectively sufficient to cause death in the ordinary course of things. According to him, both these injuries could have been caused by a dagger. So far as external injury No. 2 was concerned, it was found to be simple and had been caused by blunt object. He prepared a post-mortem report Ex. P/8 in this regard.
(3.) THE same day, he examined Smt. Teepu and found certain injuries on her person as mentioned in Ex. P. 9. Likewise, he also examined Smt. Laxmi and found certain injuries on her person as mentioned in Ex. P. 10. THEse injuries were simple. . After the post-mortem examination, the Investigating Officer, recovered the wearing apparel of the deceased and he duly sealed them vide Ex. P/6. He, thereafter handed over the dead body to the next of kin of the deceased. During the course of investigation the Investigating Officer recorded the statements of the various witnesses. He arrested accused Laliya and Panchiya on 15-3-82 vide Ex. P/14 and Ex. P/15 respectively. ;