SAVIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appeals have been preferred by the accused appellants as well as the State of Rajasthan against the judgment dated 10-6 -85 passed by the learned Sessions Judge, Jalore, whereby he found accused Savia guilty of the of fences u/ss. 302, 307/34, 447 IPC and Sec. 27, Arms Act and sentenced him to life imprisonment together with a fine of Rs. 200.00 and in default to further undergo two months' rigorous imprisonment under the first count, five years' R.I. together with a fine of Rs. 100.00 and in default to further undergo one month's R.I. of the second count, one month's R.I. for the third count and six months' R.I. for the last court. He found accused Teja guilty of the offences u/ss. 307 and 448 IPC and sentenced him to seven years R.I. without one of Rs. 200.00 and in default to further undergo two months' R.I. for the first count and to six months R.I. together with a fine of Rs. 100.00 and in default to further undergo one month's R.I. under the second count. Accused Magna was also found guilty of the offences u/ss. 307/34 and 448 IPC but was sentenced to five years' R.I. with a fine of Rs. 200.00 and in default to further undergo two months' R.I. under the first count and to six months' R.I. with a fine of Rs. 100.00 and in default to further undergo one month's R.I. for the second count. All the substantive sentences were ordered to run concur rently. The learned Sessions Judge vide his im pugned judgment, however, acquitted co-accused Samia of the offences u/ss. 302/34 307/34, 449 and 323 IPC and appellants Teja and Magna of the offence u/s. 302 r/w sec. 34 IPC. Therefore, appel lants Savia, Teja and Magna have filed their appeal u/s. 374 (2) Cr. P.C. against their conviction, while the State has filed its appeal u/s 378 Cr. P.C. against the acquittal of accused Samia, Teja and Magna. These appeals are being decided by a common judgment.

(2.) The prosecution case as unfolded during trial is that on the night intervening 5th and 6/08/1983, PW 5 Mangilal along with his wife PW 7 Amia was sleeping in a room of the 'Mand' (dwell ing place) situated in the Jav (agricultural field) near the Mahadev temple and Bera (well) of his brother- in-law (Jija), PW 4 Lachhi Ram in village Umedabad alias Gole. In that Jav, PW 4 Lachhi Ram and his brothers PW 1 Bhola Ram, PW 3 Lehra Ram and Bhagga (deceased) were also living in their respec tive houses. At about 2-2-30 AM, PW 5 Mangilal woke up due to the injuries sustained by him on his chest. He found that accused Magna was pressing his neck by both hands, while accused Teja was inflicting dagger blows on him. He screamed. There upon, his wife Smt. Amia (PW 7) was awakened. She also saw accused Magna pressing her husband's neck, accused Teja inflicting dagger blows to Mangilal. They raised alarm, whereupon PW Lachhi Ram, Lehra Ram, Bhoma Ram and Bhagga (de ceased) also got up and rushed towards the 'Mand' of Mangilal. Meanwhile, one of the culprits, who was standing outside the said 'Mand' asked accused Magna and Teja to come out and thereupon accused persons fled away. PW 5 Lachhi Ram, Bhoma Ram, Lehra Ram and Bhagga (deceased) saw those four persons running in the light emanating from the electric bulb of the temple. Smt. Amia told them hat enemies were running away after inflicting injuries. Thereupon, Lachhi Ram and his aforementioned brothers hotly pursued the accused persons, who by that time, had entered the field of Lachhi Ram, where 'bajra' crop was standing. It is alleged that at that point of time, appellant Savia fired his gun towards Bhagga, who was standing in the 'Rizka' grass but that shot did not hit him. Thereafter, appellant Savia in quick succession fired twice caus ing injuries to Bhagga on his right and left thighs resulting into extensive compound fracture of right femur bone and extensive injuries to the large ves sels of right thigh causing massive haemorrhage. Bhagga succumbed to his injuries on the spot. It is alleged that thereafter accused persons ran away towards the road, leaving a pair of shoes, one hockey, two empty cartridges and a piece of magnet in that field near the dead body of Bhagga Ram. It is the case of the prosecution that accused Magna was armed with a hockey, accused Teja had a dagger and that on the barrel of accused Savia's gun, a torch was also fitted and that in the light of that torch, he had fired those shots towards Bhagga. It is alleged that immediately after the said incident, Lachhi Ram tried to inform the police through the telephone installed on his 'Bera' but the said telephone did not work. In the morning, he found that somebody had cut telephone wires near the road. However on 6-8 -93 at about 7.10 A.M., PW 16 Jalal Khan, ASI., P.S., Jalore received a telephonic message from one Rawat Bhati, Sarpanch, Umedabad (Gole), who informed that on the 'Bera' of the Lachhi Ram, a quarrel had taken place, wherein number of persons received extensive injuries. This information was recorded in the daily diary of the police station vide report No. 201 (Ex. P. 36-A). Since this information was vague, Jalal Khan, A.S.I. rushed to village Umedabad, where Lachhi Ram submitted a written report Ext. P.4 at about 8.15 AM. This report was sent to P.S. Jalore through Nen Singh, Constable, where a for mal FIR Ex. P.23 was scribed and the case was registered.

(3.) PW 5 Mangilal, whose condition was serious, had already been taken to Primary Health Centre, Sayla. PW 12 Dr. Keshav Kotwani recorded his dying declaration Ex. D.5 at 9 A.M. on the police requisition Ex.P. 16. Dr. Kotwani found the follow ing injuries on the person of Mangilal vide M.L.R. Ex. P.17 :