I.S.ISRANI, J. - (1.) THIS S.B. Crminal appeal under Section 374(2), Cr.PC has been filed against the judgment and order dated 1st April, 1981, passed by learned Additional Sessions Judge, Kota, in Sessions Case No. 46/1979, by which accused appellant Babu alias Om Prakash was convicted for offence under Section 307 read with Section 34, IPC and sentenced to rigorous imprisonment for three years and accused -appellant Satyendra Prakash was convicted for offence Under Section 307, IPC and sentenced to similar imprisonment.
(2.) IT will suffice to state for the purposes of this appeal that Kaloo Lal submitted a written report to SHO, Kunhadi on January 7, 1979 at Kunhadi Petrol Pump, wherein it was alleged that in the morning at about 10 a m. Om Prakash alias Babu and his brother Satyendra Prakash has injured his brother Chittarlal with knife. Lot of blood has oozed from his stomach and he has been admitted in the hospital as his condition was, serious. It was further alleged that his brother was given beatings by Onkar Meena and Kalyan Gurjar also. The quarrel had taken place due to dispute' about 'Bara. Panna Lal, Laxmi Narain and others were mentioned as eyewitnesses of the incident. On receipt of this report, a case under Section 307/34, IPC was registered and challan was filed after completing the investigation. The case was committed to the sessions court for trial from where it was transferred to Additional Sessions Judge, Kota. After framing the charge against the accused appellants, prosecution examined as many as nine witnesses in support of its case and the accused were examined under Section 313, Cr. PC. All witnesses were produced in denfence. After hearing the parties the trial court convicted the accused appellants as mentioned. Hence this appeal. It is contended by Shri Biri Singh, learned Counsel for the appellants that there are several contradictions in the statements of the witnesses. It is pointed out that even though in FIR, it was mentioned that Kalyan Gurjar and Onkar Meena also gave beatings to the injured Chittarlal but both these persons were not challaned and Kalyan was produced at witness. Therefore, no reliance can be placed on FIR. It is contended that from the statement of PW 1 Kalu Lal and PW 3 Kanchan Bai, wife of the injured, several -contradictions have come -up. It is submitted that there is no independent eye -witness to the incident Even through PW 1 Kalu Lal, brother of the injured Chittar has been introduced as an eye -witness, from his own statement, it is evidence that he was not present on the scence of occurrence. PW 3 has wrongly stated that PW 1 Kalu Lal was present at the time of incident PW 4 Panna Lal Head -Constable, who lives in the neighbourhood of the injured is also introduced as an eye -witness but from the statement of PW 3 Kanchan Bai, it is evident that he reached the spot at the time when the injured person was lying injured on the floor. PW 5 Kalyan Mal has himself stated that he was not present at the spot. Laxmi Narain, PW 9 who was also introduced as an eye -witness has been declared hostile. It is, therefore, submitted that the only testimony that remains is that of injured Chittarlal PW 7 and Snot. Kanchan Bai, PW 3, wife of Chittar Lal. It is, therefore, urged that no reliance can be placed on these two statements for the purposes of convicting the accused appellants. It is further pointed out that it cannot be said who inflicted the grievous injury which is said to be dangerous of life. Both the accused persons are alleged to have given knife blows to the injured Chittar Lal, therefore, it cannot be said who was the author of the injuries, which was considered dangerous to life. It is also pointed out that Chittar Lal, PW 7, who is injured person has stated in his statement that accused appellant Babu set -over him on his chest and started giving him blows with his hands and foot. It is pointed out that there is no indication in the injury report Ex. P. 4. regarding any such injuries which were likely to be caused if severe blows and beatings by foot were given to the injured person. Lastly, it is urged that it has come in the statement of PW 8 Ham id Ali SHO/IO that since the injuries of Chittar Lal were quite severe and he was bleeding profusely he had requested the Magistrate to come to hospital and his statement (Nazai) was recorded. It is contended that the Statements of the injured which was recorded by a Magistrate has not been produced and, therefore a valuable right of cross -examining the injured Chittarlal and Investigating Officer Ham id Ali has been lost and, therefore, conviction is liable to be set -aside on this ground.
(3.) IT is also stated that accused appellant Babulal has stated in his statement recorded under Section 313 Cr. PC that the village -Panchayat had, demarcated the place in 'Bara' over which he was permitted to construct the well as there was dispute between Chittar Lal and the accused appellants regarding that Bara. It is submitted that Chittar Lal was drunken and started abusing when the work of constructing the well on the demarcated line was started. It is also stated by him that he attached him and the accused appellants tried to save himself. Therefore, it is stated by learned Counsel that it is Chittar Lal who had attached the accused -appellant Babu Lal and Chittar Lal has received injuries while the accused -appellants were saving themselves from the attack of Chittarlal. It is also pointed out that accused appellants have produced two witnesses in defence who had also corroborated the defence put up by the accused -appellants.;