JAMA AND NATHU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE above two appeals arise out of the judgment of the learned Sessions Judge, Udaipur, dated April 18, 1974, whereby the appellants, namely, Jama and Nathu, in both the appeals, were convicted of the offence Under Section 302, IPC, and each one of them was sentenced to imprisonment for life and to pay a fine of Rs. 200/ -, in default of payment of fine each of them shall further undergo three months rigorous imprisonment. The other co -accused Harka and Roopali, their father and mother, were acquitted of the charge Under Section 302/109, IPC.

(2.) THE prosecution case, in brief, is that in village Thobawara there is a well Kakawara. The deceased Mangla along with Savji (PW 2). Harka, father of the appellants, and one Kala were the co -owners. The deceased Mangla used to irrigate his field from the said well. The deceased Mangla had cultivated his field before his death, but he was not allowed to irrigate his field from the water of the said well and he took water from the well of Kamalji. On account of that, the relations between the deceased and Harka were strained. On 2 -5 -1973 in connection with the marriage of Kishan Lal son of Ratanlal Kalal some villagers had assembled at the house of Ratanlal Kalal for dancing. The deceased Mangla had also visited the house of Ratan Lai Kalal is that connection. The appellant Jama had also visited the house, but after some time he returned back. At about 10 -11.00 p.m. in the night, the deceased Mangla was returning to his house. When he reached near the house of Hakra, Hakra and his wife Roopli asked as to who is passing. Thereupon, the deceased replied that he is Mangla. Then it is said that they asked as to how he is passing from their way. Thereupon, he replied that it is a public thoroughfare. It is alleged that both of them then stated that the enemy is going and they called their sons. Thereupon their sons armed with Lathis appeared in the way and inflicted injuries on the bead of Mangla. The deceased Mangla was followed by Savji (PW 2) and Kalia(PW 1) Savji immediately came near the place of assault and caught hold of the Lathi from the hands of the appellant Nathu and thereafter Savji went to the village and called the villagers. Kalia remained with the injured Mangla. Savji returned to the scence of occurrence along with Kamaiji (PW 3) Dhula (PW 4) and some villagers. On being asked by Kamaiji and Dhula and others, the injur d Mangla told them that he had been assaulted by Jama and Nathu, the appellants. The injured thereafter was removed to Kherwara Dispensary in the morning, where his injuries were examined by Dr. S.K. Mathur (PW 12) at 7.30 a m. As the injured had head injured and he was in a semi conscious state, the Doctor advised to carry him to Udaipur Hospital. Savji (PW 2) then first proceeded to police Station, Kherwara, and lodged the report Ex P1 at 9.00 a.m. on 3 -5 -1973. On his report, case Under Section 307, IPC was registered by the SHO, Shri Sharif Mohd. (PW 11). The injured was shifted to the Udaipur Hospital. He ultimately succumbed to his injuries on 4 -5 -1973 at 11.30, a.m. Dr. Mathur found the following three injuries on the person of Mangla:

(3.) IN order to connect the appellants with the commission of the defence, the prosecution has relied on the evidence of PW 1 Kalia and PW 2 Savji as eye witnesses of the occurrence and PW 3 Kamalji and PW 4 Dhula as witnesses to whom the deceased made statement to the effect that both the appellants had inflicted Lathi blows on him. From the injury report (Ex. P/5) as1 well as from the post mortem report Ex. P/6 which have been proved by Dr. S.K. Mathur and Dr. Mangilal, it would appear that the deceased had three injuries on his head. There is a controversy with regard to injury No. 3. Dr. S.K. Mathur has described this injury as a simple injury, but Dr. Mangilal, who had an opportunity to observe the internal effect to injury No. 3, has stated that injury No. 3 has also resulted into fracture. Though he has not so clearly stated, but he has deposed that each of the external injury with its internal effects individually and all the three external injuries with the internal effects collectively, were sufficient in the ordinary course of nature to cause death. Thus, it would appear that all the three injuries on the head of the deceased were grievous injuries and the opinion of Dr. S.K. Mathur, can -not be taken to be correct in view of the fact that he had no opprtunity to conduct any post mortem examination. The learned Sessions Judge has considered this question and in our opinion, has rightly found that looking to the internal effect of injury No. 3, the injury No. 3 was also grievous. A question arises to who were the authors of the injuries on the head of the deceased, for that, on record, there are the statements of Kalia (PW 1) and Savji (PW 2), who had witnessed the occurrence. Both of them have stated that the appellants Jama and Nathu inflicted Lathi blows on the head of Mangla. It is true that it was a dark night, but still both these witnesses were quite near to the victim and could have observed the appellants. House of Savji (PW 2) is only at a distance of 25 Ft. from the place of the occurrence. Both these witnesses were returning after attending the function and celebration of dancing at the house of Ratanlal Kalal, which was held in connection with the marriage of Kishanlal. Kishanlal himself has appeared in the witness box as PW 5 and has stated that Savji, Kala, Mangla had come to his house for dancing. The accused Jama had also come, but he had left his house earlier after dancing for about 10 -15 minutes. Their testimony, in our opinion, has been rightly believed by the learned Sessions Judge. Nothing has come out in the cross examination of these witnesses, on the basis of which their testimony in any way may be rendered doubtful. It is pertinent to note that Savji actually intervened in the occurrence and snatched the Lathi from the hands of the accused Nathu and produced that Lathi at the time of lodging of the report. Apart from the evidence of two eye witnesses, there are further statements of Kamalji (PW 3) and Dhula (PW 4). They were brought by Savji, on being informed by him and they appeared at the scene of occurrence soon after the occurrence and it is to them that the deceased disclosed as to who beat him. He stated to these witnesses and some others, who had also assembled, that the accused Jama and Nathu inflicted Lathi blows on him. After making this statement to these witnesses, the injured became unconscious. Even at the time of examination by Dr. S.K. Mathur, the injured was in a semi conscious state, so it can be that at the time of making of dying declaration, the injured was in such a state that it was possible for him to have made that statement to the witnesses. We may also mention that PW 1 Kalia and PW 2 Savji are equally related to the victim as well as to the assailants. They are near relations of both the parties. Similarly, there does not appear to be any reason to disbelieve the testimony of Kalia and Dhula and in their cross -examination nothing has come out, so as to effect their testimony. Besides that, there is a corroborative piece of evidence, available against accused -appellant Nathu. It was his Lathi (Ex. 2), which was snatched by Savji and which was produced by him to the police. That Lathi was packed and sealed and was sent for chemical and serological examination and on examination it was found to be stained with human blood. Thus, on the basis of the above evidence, it can be concluded that the authors of the injuries on the person of the deceased were the appellants.