POOSA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS joint appeal by accused Poosaram, Kojaram and Deeparam is directed against the judgment of the learned Sessions Judge, Jodhpurdated July 16, 1977 convicting the appellants under Section 304 Part II read with Sec. 34, IPC and sentencing each of them to five years rigorous imprisonment.

(2.) PUT briefly the prosecution case is as follows :- Accused Kojaram and Deeparam are the real brothers, while accused Poosaram is the son of accused Kojaram. They are residents of village. Baru P. S. Bap, District Jodhpur. The deceased-victim Bhakhraram aged about 20 years was also a resident of this village. He was related to them at some distance. But the relations between them were not happy. A few days before the occurrence, accused Poosaram had lodged report Ex. D/l against the deceased-victim and some other persons at Police Station, Bap for an offence under section 323, I. P. C. The accused also drove their catties in the field of the victim nearly a month before the incident.

(3.) IN assailing the conviction of accused persons, learned counsel for the appellants raised the following contentions:- (1) P. W. 3 Ramsingh was wrongly taken to be a witness of the occurrence. His conduct showed that he had not seen the occurrence. The court-below cropt into an error in putting implicit faith on his testimony. (2) Dying declaration alleged to have been made by the victim could not be made by him. It was wrongly called in aid to convict the accused. (3) The evidence of alibi was wrongly rejected by the court-below. (4) The learned Judge had crept into an error in rejecting the plea of private defence, and (5) Even if, the prosecution story is accepted as true, the offence made out is that under sec. 325, IPC and not under section 304 Part II, IPC.