PUSHAP RAJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal filed by Shri Pushap Raj and Mahesh, is directed against the judgment of conviction and order of sentence, passed by learned Sessions Judge, Udaipur, dated 16/09/1993, whereby the learned Sessions Judge has held the accused appellant Pushap Raj guilty of offence under Sections 302 and 307 read with 34, IPC and accused appellant Mahesh guilty of offence under Sections 302 read with Sec. 34, IPC and under Sec. 307, IPC. Learned Sessions Judge sentenced them to life imprisonment for offences under Sections 302 and 302/34, IPC respectively. They were further sentenced to five years rigorous imprisonment together with fine of Rs. 1000.00 each, for offences under Sec. 307 read with 34, IPC and 307, IPC respectively. In default of payment of amount of fine, they were further sentenced to undergo six months' rigorous imprisonment. Both the substantive sentences have been ordered to run concurrently.

(2.) The facts necessary to be noticed for the disposal of this appeal, briefly stated, are that on 10-7-1991 at about 12.45 p.m., an oral report was made by one Babu Lal, who has been examined as P.W. 1, to the Station House Officer, Police Station, Mawli, at Primary Health Centre, Mawli, that the complainant party has a land dispute with the accused party. The complainant party consisted of Babu Lal and his two uncles Daula and Hari Ram, both sons of Sakhaji Gujar, resident of village Javda. The accused party consisted of Mahesh and Pushap Raj, both sons of Jagan Nath Mali, resident of Mawli. They have a land dispute about the land situated in village Javda, about which certain cases were pending. A hearing of one of such cases was there (At Mawli) on 10-7-1991. It is alleged that they attended the hearing and after attending the hearing, Babu Lal along with Daula and Hari Ram went to their field, which is situated just out side Javda village on a motor cycle. They went to their well. A hut is situated on their field and on going there, they noticed that Mahesh who was armed with an axe, Pushap Raj who was armed with a 'dhariya' and three more persons, who were accompanying them, armed with iron rods; were hiding inside the hut. As soon as they reached there near the well, these persons came out of the hut and ran towards them to kill them. Mahesh inflicted an axe blow on the head of Daula, which caused a bleeding injury. On this, in order to save their lives, they ran towards the village on the motor cycle. Thereafter, when they were going to report the matter to the police, and were near Bagoliyaji Ka Tank, situated between villages Mordi and Motadi, Mahesh, Pushap Raj and his three companions who were later identified as Lokendra, Abdul Gaffar and one unknown person, stopped them and Mahesh and his companions caught hold of Hari Ram and Pushap Raj started inflicting injuries with his 'dhariya' on the head of Hari Ram. He inflicted number of blows on his head. Daula was inflicted injuries with the axe by Mahesh and his two companions with iron rods whereby he received number of injuries on his head and body. He too was inflicted with iron rods on his head, legs back etc. As condition of Hari Ram became serious, they hired the jeep of Arjun Lal Chaudhary, No. RJ 27-C0294 and brought him to Mawli hospital from where he was referred for treatment to Udaipur hospital. It was alleged that Dule Singh Rao and two more persons of Mortadi saw the occurrence. This oral report has been reduced into writing and marked as Ex. P/6, on the basis of which formal FIR was drawn. The accused persons were arrested on the same day. They too had injuries on their person, therefore, medical examination of the injuries of the injured persons was got done. The injury report of Pushap Raj has been marked as Ex. P. 21 and of Mahesh has been marked as Ex. P. 22 and that of Lokendra as Ex. P. 24. These examinations are dated 10-7-1991. The medical examination of the injuries of Hari Ram has been marked as Ex. P 21(1), the injury report of the Babu Lal has been marked as Ex. P. 23(1) and the injury report of Daula bas been marked as Ex. P. 24(1); all of which have been proved by Dr. N. S. Kothari. Hari Ram died at 5. 00 a.m. on 11-7-1991 and, therefore, his post-mortem examination was conducted and his post mortem report has been marked as Ex. P. 22(1).

(3.) The accused persons after running from the place of occurrence, went to the house of Mst. Durga Kanwar wife of Gamer Singh, resident of Martadi, in the fodder-room ('kotha') of Badan Singh and it was with greed difficulty that with the help of Ram Singh, Nar Singh and Narain Singh they could be turned out of that room. On arrest, they gave information about the recovery of one 'dhariya', one 'kulhari' (axe) and two lathis and, these weapons have accordingly been recovered at their instance. Dhariya and Kulhari were recovered from the house of Mst. Durga Kanwar, from the 'kotha' where they did themselves and two lathis have been recovered on the information of Lokendra and Abdul Gaffar. The arrest memos of Mahesh, Pushap Raj, Lokendra and Abdul Gaffar have been marked as Exs. P.1 to P4. The blood stained clothes of the deceased were taken into possession vide memo Ex. P. 10 and the two lathis recovered at the instance of Lokendra and Abdul Gaffar have been seized vide memos Ex. P. 11 and Ex. P. 12 respectively. The axe was recovered at the instance of accused Mahesh vide memo Ex. P. 13. It is alleged that for Abdul Gaffar, a cycle was hired from Shree Ram Cycle Store by accused Mahesh Mali and that entry in the register of Shree Ram Cycle Store, whereby that cycle was hired by Mahesh has been marked as Ex. P. 14. All these seized articles were sent for chemical and serological examination and chemical and serological examination report was marked as Ex. P. 37.