MADHA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment of learned Sessions Judge, Jalore dated 4. 6. 1986 whereby he has convicted and sentenced the accused appellants as under with a direction that all the sentences shall run concurrently. Jeewana : Under Sec. 302 IPCimprisonment for life and a fine of Rs. 200/- in default of payment of fine to undergo further three months' R. I. U/sec. 326/149 IPCfour years' R. I. and a fine of Rs. 300/in default of payment of fine to undergo further six months' R. I. U/s. 324 IPCone and a half years' R. I. and a fine of Rs. 200/ in default of payment of fine to undergo further two months' R. l. Madha : U/sec. 324 IPC one and a half years' R. 1. and a fine of Rs. 200/ in default of payment of fine to undergo further six months' R. 1. U/sec. 1148 IPCone years' R. 1. and a fine of Rs. 100/-in default of payment of fine to undergo further 15 days R. 1.

(2.) BRIEF facts of the prosecution case are that on 11. 101980, report was lodged by Ratna at 10 a. m. alleging that when he was going alongwith Pokara, Rachu, Surta, Koja, Thakra and Kalu to Kalu's Dhani, and reached at the turn of village Sankad, accused appellants Madha, Jeewana and 14 others had encircled them. Hema, Teja and Rachu were armed with Kulharies and rest of the accused were armed with Dhariya. Jeewana inflicted injury on the head of Koja by Dhariya. Koja fell down and blood came out from his head. Accused Madha s/o Lamba and other accused persons inflicted Dhariya blows on Pokara Thakra, Surta, Rachu and Ratna. They received grievouts injuries. On hearing the cries, Kalu and Uka reached and tried to settle the matter but they were told that if they would come near same treatment would be given to them. Due to injuries Koja, Thakra, Pokara and Surta became unconscious. Koja breathed his last at the Bus stand of Sankad and remaining injured persons were taken to hospital in the truck of Hema Sarpanch. On this police registered a case u/sec. 302, 307, 326, 323, 147, 148 and 149, IPC and started investigation. The dead body of Koja was sent for post mortem examination. P. W. 9 Dr. M. L. Doshi, conducted the post mortem examination vide Ex. P-19 and found following injuries: ***** It may be noted that for the same incident Sessions case no. 15/81 State Vs. Nema and 13 others was decided on 05. 8. 81, 8 persons were acquitted and six accused viz. Sujana, Chada, Madha s/o Lemba, Naina, Haru and Pubu were convicted and sentenced u/sec 302/149, 326, 324 and 148 IPC. These six accused persons preferred appeal before this Court. On 28-9-1984 a Division Bench of this Court, acquitted all those accused persons of the offence u/sec.-02/ 149 and 307/149 but converted their conviction to 326 IPC, however, their conviction and sentence u/sec. 324 and 148 IPC was maintained. Proceedings against accused Jeewana and Madha were taken u/sec. 299. But since accused Madha and Jeewana surrendered on 31. 12. 1981 and 4. 1. 1982 respectively, so, after usual investigation police submitted separate challans before the learned Munsif and Judicial Magistrate, Sanchore who committed the case no. 20/83 against Jeewana and 25/84 against Madha to Sessions Court. The learned Sessions Judge, consolidated the cases on 8. 1. 1985 as they were arising out of the same incident. The learned Sessions Judge framed the charges against the accused Jeewana u/sec. 302, 307/149, 148 and against accused Madha u/sec. 302/307/ 149 and 148 IPC. Both the accused pleaded not guilty and claimed trial. In support of its case the prosecution has examined 17 witnesses and filed 31 documents. In defence one witness Virbal Ram was examined. The learned Sessions Judge on conclusion of trial convicted and sentenced the accused appellants as mentioned above. Hence the accused appellants have preferred this appeal.

(3.) AS regards Madha, three injuries have been attributed to him, one each to Ratna Ram, Rachu and Surta Ram. Each of them have stated as to how they were beaten by the appellants. P. W. 2 Ratna Ram has stated that Madha s/o Lamba has inflicted injury by Dhariya on his left shoulder. It is clear that this injury was not assigned to the present appellant but Madha s/o Lamba who had already been convicted for this injury. P. W. 5 Rachu has stated that Madha inflicted one Dhariya blow on his head but had not given the parentage of the accused. It was necessary as in this incident two accused were of same name Madha. Therefore, it could not be said that this injury had been caused by the present appellant Madha. So far as injured Surta Ram is concerned, he has stated that Madha s/o Dhukia i. e. present appellant inflicted injury below the knee but the Dr. had not found the alleged injury, as per injury report the injury no. 1 was on Ulna. Thus, we find that his participation in the incident is extremely doubtful.