N.N. Mathur, J. - (1.) This appeal is directed against the judgment dated 19.1.1982 passed by learned Sessions Judge, Bikaner convicting the accused appellant of offence under Section 304 Part-I I.RC. and sentencing him to 4 years Rl and to pay a fine of Rs. 500/- and in default of payment, to further undergo 4 month's Rl.
(2.) The prosecution case is that deceased Ahmed was having illicit relations with RW. 8 Smt. Bal Kanwar W/o accused Narayan Singh. On 31st July, 1980 at about 12 or 1 p.m. on hearing the cry, Sakina mother of the deceased wife of Ahmed Bashira and daughter Gulshan reached to the spot. It was disclosed that 3 accused persons namely, Narayan Singh, Bhanwar Singh and Deep Singh were giving beating to Ahmed with Barchi, Lathi and Kuihadi. Inspite of intervention of Mst. Sakina, the accused persons did not stop giving beating. Sakina and Gulshan took Ahmed in the house, where he succumbed to the injuries. The case was registered at Police Station Nokha for offence under Section 302 I.RC. The autopsy was conducted by Dr. Nathmal RW. 1. He found following injuries on the person of decesed Ahmed vide Post-Mortem Report Ex. 1 - 1. Lacerated wound 3 cm.xl cm. right leg mid region. 2. Echymosis redish 7 cm.x4 cm. right arm mid region interior. 3. Abrasion redish 6 cm.x3 cm. right side outer side. 4. Echymosis redish 3 cm.xl cm. below right iower lid. 5. Echymosis redish 2 cm.xl cm. right sterno clavicular joint region. 6. Echymosis redish 3 cm.x11/2 cm. left arm upper ⅓ outer side. 7. Echymosis 4 cm.x3 cm. left apex region. 8. Exhymosis 12 cm.x6 cm. obliquly left chest wall posterior alongwith infangle. 9. Echymosis 12 cm.x6 cm. interoscapula region & right chest wall lower column. 10. Lacerated wound 4 cm.x2 cm. x 1/4 cm. right frontal region. 11. Lacerated wound 3 cm.x2 cm.x 1/2 cm. left perital region & temporal. 12. Echymosis 10 cm.x6 cm. right illiac fossa. In the opinion of the doctor, the cause of death was Coma as a result of Sub-Duration Heematoma and multiple injuries. After usual investigation, the Police laid chargesheet against the appellant and two others namely Deep Singh and Bhanwar of offence under Section 302, 302/34 & 379 I.P.C.
(3.) The prosecution, in its support examined 9 witnesses and produced certain documents. The accused in his statement under Section 313 Criminal Procedure Code stated that on 31st July, 1980 he left Bikaner after completing his duty. He reached to his house at about 11.30-12.00 p.m. in the night. On entering in the house, he saw accused Ahmed committing rape on his wife. He immediately lifted the Danda lying there and gave 2-4 blow to Ahmed. Ahmed left for his house. He also stated that he acted so out of anger. Two witnesses namely, Mangha Singh DW/1 & Asu Singh DW/2 were produced to prove the plea of alibi of second and third accused plea of alibi before the Trial Court.;