PALSHIKAR, J. - (1.) THIS appeal is directed against the order dated 30. 1. 1978 passed by learned Sessions Judge, Balotra in sessions case No. 18/77 convicting the accused appellants under Sec. 302 read with Secs. 149, 148 and Secs. 148 and 147 of the Indian Penal Code and sentencing them to suffer life imprisonment for the offence under Sec. 302 read with Sec. 149 and suffer two years rigorous imprisonment for the offence under Sec. 148 and to suffer six months' rigorous imprisonment for the offence under Sec. 147 of the Indian Penal Code. All the sentences were directed to run concurrenly.
(2.) FACTS giving rise to the appeal stated briefly are that on 15. 4. 1977 at about 2. 30 pm, the first information report was lodged by Shri Pukh Raj S/o Kundanmal stating that persons named in the report including Dalichand have assaulted one Surajmal who as a result of assault subsequently died. The first information report was later on proved as Ex. p/1 with its proforma copy as Ex. P/1-A. On the basis of this information report, investigation was carried out by the Station House Officer under the guidance of the Dy. S. P. and on completion of investigation after arresting the accused persons, challan was filed, on the basis of which, sessions trial No. 18/77 was commenced in the Court of Sessions Judge, Balotra. The prosecution has examined as many as 14 witnesses to prove its case. On appreciation of the evidence, the learned Sessions Judge came to the conclusion of guilt by his order dated 30. 1. 1978 in Sessions Case No. 18/77 convicting the accused for the offences under Secs. 302/149, 148,147 IPC and sentenced the accused to suffer imprisonment for life. It is this order of learned Sessions Judge which is challenged by the accused in this appeal. We have re-appreciated the evidence on record and reconsidered the entire case in the light of the contentions raised in the memo of appeal on behalf of the accused. Pw. 1 Mohanlal S/o Kaujraj aged 27 years has stated that he is resident of village Ramania and his house is situated opposite the locality occupied by Rebari community. He states that on 15. 4. 1977 when he was brushing teeth in the morning, he heard shouts from the locality of Rebari and he went to the riverside portion of his house, where he saw eight people beating Surajmal, whom he identifies as accused persons in court. He states that accused Dalichand and Magia had axes in their hands and the rests were armed with lathis. The witness also states that one Pukhraj also saw the incident and he along with witness requested them not to beat Surajmal, on which they were threatened with direct consequence by the accused persons. The witness then arranged for transporting the injured Surajmal to hospital who on reaching hospital, was pronounced dead. In his cross-examination, he has stated that when he carried Surajmal, he was wearing a Banyan which had blood stained but same was not handed over to the hospital. He has stoutly denied the suggestion that he only saw Surajmal lying injured in the locality of Rebari and did not see anyone assaulting Surajmal. He has also denied the suggestion that he and Pukhraj are deposing that due to political enmity, most of the cross-examination is devoted to prove enmity of the witness towards the accused persons.
(3.) PW. 2 Ummed Singh S/o Sohan Singh is a boy of 13 years who has deposed that on hearing commotion from the locality, he went towards it and saw Mohanlal standing in his house as also Pukhraj standing nearby. All the eight accused persons were beating Suraj Mal then Pukhraj and Mohanlal requested them not beat Surajmal. The witness then went away towards "seri". He has stated that the accused persons assaulted the victim with lathi and axes. According to the witness, Dalichand and Mohanlal were armed with axes. When he returned home in the evening, he told of occurrence to his father. The cross-examination of this witness is also inconsequential. Pw. 3 Sohan Singh S/o Karan Singh has deposed that at about 8. 30 in the afternoon, he saw Surajmal lying on a cot, his body had severe injuries which were bleeding and at that time, Surajmal was talking to his wife, he therefore, left the place. Then the witness has stated that he knows the accused persons by sight and name and saw them going towards the Chota of Suraj Mal and then he saw them returning towards Chota from the location of Rebari. Dalichand and Mohanlal had axes with them and rests had lathis. He then names the persons who had lathis. The witness then deposed that he reached Surajmal in his Chota. He heard Suraj Mal telling his wife that he has been assaulted by eight accused persons. The cross-examination of this witness is also devoted to prove his enmity and political rivalry. He is obviously not an eye-witness to the assault but visited the scene of offence immediately after the occurrence and heard the deceased telling his wife that the accused persons had assaulted him. He had also seen the accused persons armed as they were leaving the place of occurrence. Pw. 4 Pukhraj is the person who lodged the first information report. He states that on hearing the commotion on 15. 4. 77 at about 8. 00 A. M. , he went to riverside of his house and saw the eight accused persons assaulting Surajmal. He states that Magia and Dalichand were armed with axes and the rests had lathis. He states that the lathis of Harji Choudhary was wrapped with barbed wire. He saw Mohanlal arriving at in his house and both of them requested the accused not to assault the victim, on which the accused persons threatened the witness also. He has categorically deposed that all the persons were simultaneously assaulting the deceased. When they saw that Surajmal is about to die, they left Surajmal. The witness then with the help of Mohan Lal took Surajmal to his house and thereafter to the hospital. The cross-examination of this witness is inconsequential. It does not shake the testimony or the credibility of the witness. ;