NARSA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is appeal has been filed by the accused appellants against the judgment and order dated 6. 11. 2000 passed by the learned Additional Sessions Judge, Bhinmal (District Jalore) in Sessions Case No. 23/2000 by which he convicted the accused appellants for the offence under Section 304 Part-I read with 34 IPC in place of 302 IPC and further convicted them for the offence under Section 452 and 323 and 323/34 IPC and sentenced in the following manner:- Name of accused appellants Convicted u/sec. Sentence awarded 1. Uka Ram 304 Part-I r/w 34 IPC Eight years' RI and to pay fine of Rs. 2000/- in default of payment of fine, to further undergo six months RI. 452 IPC One year RI and to pay fine of Rs. 100/- in default of payment of fine, to further undergo 15 days RI. 323/34 IPC Six months RI and to pay fine of Rs. 500/- in default of payment of fine, to further undergo 7 days RI. 2. Narsa Ram 304 Part-I r/w 34 IPC Eight years' RI and to pay fine of Rs. 2000/- in default of payment of fine, to further undergo six months RI. 452 IPC One year RI and to pay fine of Rs. 100/- in default of payment of fine, to further undergo 15 days RI. 323 IPC Six months RI and to pay fine of Rs. 500/- in default of payment of fine, to further undergo 7 days RI. The above substantive sentences were ordered to run concurrently.

(2.) THE facts giving rise to this appeal, in short, are as follows:- On 16. 4. 2000 at about 9. 30 a. m. PW2 Kesaram lodged a written report Ex. P/2 before PW15 Ganpat Singh, S. H. O. , Police Station, Raniwara District Jalore stating that they are four brothers and accused appellant Narsa is the eldest one and accused appellant Uka is the youngest one and both live in one Bhera together and he and his younger brother Punma (hereinafter referred to as the deceased) live in another bhera separately alongwith their family and their mother PW9 Bhuri used to live with deceased. It was further stated in the report that when they were separated, accused appellant Narsa used to demand Rs. 10,000/- from the deceased and because of that amount, there was a dispute between them and before this incident, two months earlier an incident took place between them and that was compromised. It was further stated in the report that on the fateful day at about 4-5 a. m. , he heard the cries from the bhera of the deceased and after hearing cries, he and his wife PW14 Khemi rushed towards the house of deceased and found that outside the house of the deceased, both accused appellants were beating deceased and at that time, accused appellant Uka was armed with Kulhari and accused appellant Narsa was having lathi and his mother PW9 Bhuri and PW6 Sukhi, wife of the deceased were trying to save deceased and in this scuffle, both PW6 Sukh and PW9 Bhuri also received injuries and as a result of beating, deceased fell down on the ground and PW6 Sukhi, wife of the deceased rushed from the place of occurrence and returned back with a Jeep and at that time, both accused appellants did not allow her to take deceased to the hospital and, thereafter, PW6 Sukhi brought Khangara, uncle of PW2 Kesa Ram, PW10 Nethi and PW7 Punjaram and thereafter, deceased was taken to the hospital, Raniwara. It was further stated in the report that deceased received so many injuries including on head and he was beaten by the accused appellants with an intention to murder him. On this report, police registered the case and chalked out regular FIR Ex. P/30 and started investigation. During investigation, medical examination of deceased was got conducted by PW5 Dr. Mool Singh Rathore and his medical examination report is Ex. P/13 and, thereafter, deceased succumbed to his injuries on 17. 4. 2000 at about 9. 15 a. m. and post mortem of the dead body of the deceased was also got conducted by PW5 Dr. Mool Singh Rathore and the post mortem report is Ex. P/15, where cause of death as opined by Dr. Mool Singh Rathore, PW5 was haemorrhagic shock due to Head injury. PW9 Bhuri was also got medically examined and her injury report is Ex. P/10. PW6 Sukh was also got medically examined and her injury report is Ex. P/11. THE accused appellants Ukaram and Narsaram were arrested on 16. 4. 2000 through arrest memos Ex. P/34 and Ex. P/35 respectively. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case has committed to the Court of Session. On 3. 7. 2000, the learned Addl. Sessions Judge, Bhinmal framed charges for the offence under Sections 302/34, 352 and 323 IPC against the accused appellant. THE charges were read over and explained to the accused appellants. THEy denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 18 witnesses and got exhibited some documents. THEreafter, statements of the accused appellants under Section 313 Cr. P. C. were recorded. In defence, no evidence was produced by the accused appellants. After conclusion of trial, the learned Addl. Sessions Judge, Bhinmal through his judgment and order 6. 11. 2000 convicted and sentenced the accused appellants in the manner as indicated above holding inter alia:- 1. That incident did not take place on the spur of moment. 2. That though one of the accused appellants was having a Kulhari, but he did not use that Kulhari from sharp edged point, but used it from back side. 3. That accused appellants except one injury on head did not cause other injuries on vital part. 4. That from the above findings, the learned Sessions Judge came to the conclusion that at the time of beating deceased, accused appellants had no intention to murder him, but whatever was done by accused appellants, it was done with knowledge that these injuries could be fatal and, therefore, he held that prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under Section 304 Part-I read with 34 IPC and not 302 IPC. Aggrieved from the said judgment and order dt. 6. 11. 2000 passed by the learned Addl. Sessions Judge, Bhinmal, this appeal has been filed by the accused appellants.

(3.) BEFORE proceedings further, first medical evidence of this case has to be seen. Injury report of PW9 Bhuri