DEVA SON OF TAJOO, 2. MMJI SON OF TAJOO, 3. KANJI SON OF MANJI, 4. GOMANA SON OF TAJOO, S. BAKTA SON OF TAJOO, 6. RAMJI SON OF MANJI, 7. HOORJI SON OF THANA, 8. DHOOLA SON OF ROOPA, 9 TEJA SON OF MANJI, 10 VEERJI SON OF KALIYA, 11. JHUOMLA SON OF ROOPA, 1 Vs. STATE OF RAJASTHAN.

JUDGEMENT

(1.) This appeal is directed against the judgment dated 11th Feb., 1974 passed by the Additional Sessions Judge Udaipur in Sessions case No. 3 of 1971. In the Sessions case aforesaid 19 persons i. e. the eighteen appellants in this appeal and one Smt. Baktu wife of Nanji, were tried in respect of offence under section 148 302/149 and 323 I. P. C. The charge under section 302/149 I. P.C. related to the murder of one Jagnnath son of Senga and charge under section 323 I. P. C. relate; to the injuries caused to Senga P.W. 11, Dhanji P. W. 12, Vala P.W. 3, Dharma P.W. 3, Dharma P.W. 2 and Bherulal P.W.1.

(2.) The case of the prosecution is as under :

(3.) On 19th Sept., 1971 at about 4 P. M. Senga P. W. 1 and his son Jannnath deceased were working in their field in village Nareria. Senga was claiming some money from accused Deva and accused Nanji. Accused Gomana came to field of Senga and told Senga that he may come and take the money which he was demanding from Deva and Nanji. There upon Senga left with accused Gomana. When they had reached near a hillock known as Belimdi-wali-magri'' accused Deva, Nanji, Moga, Bakta, Kanji, Ramji, Teja and Kachara armed with sticks me them and started assaulting Senga with lathies. Senga raised a cry on hearing which Jagnnath deceased came to his rescue and he was also assaulted, Accused Hoorji Kalia, Mavji, Fata, Dhulia, Veerji, Dalji, Natha, Jhooma and accused Smt. Baktu wife of Manji also came there from the house of Veerji. On hearing the noise. Bherulal P. W. 1, Dharma P. W. 2, Vala P. W, 3, Dhanji P. W. 12, Jeeva P. W.t and Habji P.W. 5 also arrived there and tried to rescue Senga and Jagnnath but they were assaulted with lathies and stones were also pelted at them. The case of the] prosecution is further that Deva inflicted a blow on the head of Jagnnath with lathi and Nanji and Kanji gave one lathi blow each on his body as a result of which he fell down and that thereafter, Smt. Baktu wife of Manji lifted a stone weighing about 8 Kg. and threw it on the chest of Jagnnath as a result of which he died on the spot. Accused Jhoomla had a sword in his hand and after taking it out from the shath be ran towards Jagnnath but Deva stopped him by saying that Jagnnath had already died. Deva snatched the sword from the hand of Jhoomla and thereafter all the accused persons ran away. Bherulal P. W. 1 along with Dhanji P. W. 12 went to lodge the report about the incident at Police Outpost Atri and from there they along with Constable Shambu singh went to Police Station Kotwali Dungarpur where the report Ex. P. 7 was lodged by Bherulal on 20th Sept., 1971 at 8.45 A. M. On the basis of said report a case under sections 147, 148, 149, 3/2-323 Penal Code was registered and investigation was commenced. Madan singh P.W. 16 who was S H. O. of Police Station Kotwali Dungarpur at that time took up the investigation and proceeded to the scene of the occurrence and after reaching there he prepared the Panchayatnama Ex. P. 10 memo of site inspection Ex. P. 11 and the site plan Ex. P. 12. The autopsy on the dead body of Jagnnath was conducted by Dr. K. H. Gandhi, Medical Officer, General Hospital, Dungarpur on 21st Sept., 1971 at 7.30 A M. vide post mortem reports Ex. P. 1. According to the post mortem report the deceased had three internal injuries, Injury No. 1 was lacerated wound 2"X 1/2" bone deep on the vault of the skull. Injury No. 3 was haematoma on lie fore-head. Injury No. 3 was bruises all over the front of the chest which on pressing showed that ribs 3, 4, 5, and 6 on the right side and 4, 5, and 6 on the 'eft side were fractured. On internal examination be found that on removing the scalp there was extravasation of blood all over the skull and there was longitudinal fracture of the'middle of the frontal bone extending from the frontal part and going up to the contusion of the right parietal bone and that the sagittal sutures 'were separate and there was longitudinal fracture of the right parietal bone up to the vault of the skull and further there was oblique fracture of the squa much part of the left temporal bone. He further found that on opening the skull there was blood in the meninges, the meningeal blood vessels were ruptured. On opening the thorax the fracture of the right 3, 4, and 5 and left 4, 5 and 6 ribs were confirmed and the bony ends of these ribs pierced the lungs and pleurae and there was free blood in the pleurae cavity on both the sides. According to the medical officer, the death was due to shock and hemorrhage caused by the fracture of the skull and, ribs and rupture of the lungs. Dr. Gandhi also examined the injuries of Dhanji P. W. 12 and Bherulal P/W. 1 on 20th Sept., 1971 and prepared the injury reports Exs. P. 2 and P. 3 respectively. The injuries of Dharma P. W. 2, Senga P. W. 11 and Vala /P. W. 3 were examined by Dr. K. H. Gandhi on 21st Sept., 1971 vide injury reports Exs. P. 4, P. 5, and P. 6 respectively. The accused persons were arrested on various dates between 20th Sept., 1971 to 6th Dec., 1971 vide memos of arrest Ex. P. 33 to P. 51. After their arrest some of the accused persons gave information vide memos Ex. P. 52 to Ex. 56, Ex. P. 58 to Ex. P. 65 and Ex. P. 65 on the basis of which certain lathies were recovered vide memo Ex. P. 13 to Ex. P. 17 and Ex. P. 19 to Ex. P. 25. On the basis of the information-Ex. P. 64 given by accused Deva a sword was recovered vide memo Ex. P. 26. A stone weighing about 8 to 9 Kgs. was recovered vide memo Ex. P. 18 on the basis of information Ex. P. 57 given by Smt. Baktu. Some injuries were found on the person of appellants Veerji, Kalia, Manji, and Moga at the time of their arrest on 20th Sept., 1971 and the injuries of the said accused persons were examined by Dr. K. M. Jain P. W. 10 Medical Officer In charge, Government Hospital, Sagwara on 20th Sept. 1971 and, he prepared the injury reports Exs. P. 27, P. 28, P. 29 and P. 30 with regard to the injuries found on accused Veerji, Kalia, Nanji and Moga respectively. After completing the investigation the police submitted a charge-sheet against all the 19 accused persons in the court of Munsif Magistrate, Dungarpur who, after inquiry, committed the accused persons for trial in the court of sessions and thereupon charges under sections 148, 302 read with section 149 I P. C. and section 323 I.P. C. were read over to the accused persons by the Additional Sessions Judge, Udaipur. The accused persons pleaded not guilty and claimed to be tried.