GORDHAN & ORS. Vs. STATE OF RAJ.

JUDGEMENT

(1.) Appellants Gordhan and Janaki Lal have filed this appeal against their conviction under Sec. 302, Penal Code recorded by the Addl. District & Sessions Judge, Chhabra vide his judgment dated 24th Sept., 1992, in Sessions Case No. 194/1992, whereby they were sentenced to life imprisonment and a fine of Rs. 500.00 each. In default of payment of fine, each of the appellant was further awarded simple imprisonment or one month.

(2.) We need not give the facts in detail as the learned counsel for the appellants restricted his arguments on the question of offence and the sentence to be awarded to the appellants. Some of the facts are undisputed. The deceased, Kanhaiyalal, was real brother of the appellant Gordhanlal. Janakilal is the son of Gordhan. Kanhaiyalal and Gordhan have their residential houses side by side in Mohala Barawan in village Moondla. The incident took place in front of the house of the accused. It appears that at the relevant time, the accused persons and some other persons were warming themselves. It also appears that the deceased Kanhaiyalal and Gordhan were having some land dispute and it was alleged that Gordhan appellant did not allow Kanhaiyalal deceased to plough the land or to take water from the well. The well was constructed by the appellant, Gordhan.

(3.) Independent witnesses of the incident have not supported the prosecution case and conviction of the appellants has been recorded mainly on the evidence of PW/3 Smt. Manni Bai and PW/4 Mukhesh Kumar who was six or seven years old at the time of incident. Learned trial Court has assessed his age as 8 or 9 years at the time of recording his statement of 19th July, 1989. After going through the statement of PW 4 Mukesh, we are of the firm view that no reliance can be placed on it. From the statement of PW/3 Smt. Manni Bai, it appears that at the time of incident the appellants were having sharp edged weapons. As per her statement, other accused her son had also assaulted the deceased. From injury report of Kanhaiyalal deceased, Ex.P 14, it transpires that out of the injuries, injury No. 6 included six abrasions of small sizes which were simple in nature. At the time of post mortem examination, the Doctor detected a fracture of occipital region. Dr. Laxman Singh PW/13, had examined the injuries of Kanhaiyalal and also conducted post-mortem on his dead body, has proved the injury report as well as the post-mortem report. From his statement, it is borne out, that the deceased had three injuries on his head, out of which two were caused by blunt object and only one injury was by a sharp edged weapon. In opinion of the Doctor, injuries No. 3, 4 and 5 were cumulatively dangerous to life. It is also noteworthy that the Doctor has not stated a single word that the injuries sustained by the deceased were individually or cumulatively sufficient to cause his death in the ordinary course of nature. From the evidence of PW/3 Smt. Manni Bai it is not made out as to which of the injuries have been caused by the two appellants.