THAWARA AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Being aggrieved by the judgment and order of conviction passed on 19.3.86 by the Sessions Judge, Pratapgarh in Sessions Trial No. 119/82 convicting the appellants under Sec. 304 Pt. II IPC. and sentencing each of them to undergo 5 years R.l. and to pay a fine of Rs. 500.00 in default of payment of fine to further undergo one months simple imprisonment, accused have preferred this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before me.

(2.) With the assistance of the learned counsel for the accused appellants and the learned P.P., I have scrutinised the record of the case, and re-appreciated the evidence. I find from the record and re-appreciated the evidence. I find from the record and re-appreciation of evidence that the First Information Report was lodged at 10.00 P.M. at Police Station Suhagpura by P.W. 1 Kachru to the effect that on the same day at about 5-7 p.m. in the evening, the accused persons were come armed with axes and sticks and assaulted the father of the complainant who as a result of the injury died. On the basis of this report, investigation was taken up. During the course of investigation, the victim died therefore, charge was converted into the offence u/s. 302 IPC. 323 & 325, IPC. But lata on the accused was acquittal u/s 302 IPC. After investigation, charge sheet was filed. The prosecution has examined 14 witnesses in support of its case. The case of prosecution is that P.W. 1 Kachru is the son of the deceased and P.W. 7 Mst. Hudki is wife of P.W. 1 Kachru and P.W. 8 Pyari both are eye witnesses. The axe and lathi was recovered from the accused persons, the recovery is duly proved. From the evidence of eye-witnesses who are close relatives to the accused persons and are also known to the accused persons. It is obvious that the accused has assaulted Rama, there is no reason to disbelieve the eye-witness on this count. Even if the entire testimony is accepted, there is no reason to show the persons having intention on their part to commit murder of Rama. The intention as is shown that these persons who obviously involved in the assault would thresh to the victim. However he died after sustaining the injury inflicted by the accused and therefore accused was charged under Sec. 324 IPC.

(3.) In this case the evidence of P.W. 5 is very important, he has conducted the post mortem of the deceased, and has deposed that death of deceased Rama was caused due to enlargement of spleen and there is no evidence on record to show that the accused had any intention to cause such bodily injury as is likely to cause death. Therefore conviction under Sec. 304 Pt. II is not possible. Particularly there is evidence on record of an expert Doctor P.W. 5 to the effect that the death of the injured was due to enlargement of spleen. In my opinion, the appeal is liable to be allowed in part and the conviction is liable to be set aside.