CHHOTYA AND ANOTHER Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The present appellants Chhotya and Mohan Lal @ Hari Mohan have preferred the appeal against an order of conviction under Sec. 302 Indian Penal Code and sentence of imprisonment for life along with a fine of Rs. 200.00 each, in default, simple imprisonment for a further period of three months, as passed on 26th July, 1996, by the learned Sessions Judge, Sawai Madhopur in Sessions Case No. 3/96.

(2.) The prosecution case inter alia was to the effect that on 26.9.95 at about 8 p.m. when Smt. Andhokh Bai (PW 9) and her husband Jamna Lal along with their children were returning to their own house from the house of her husband's younger brother Chhotu (PW 8), the present appellants Chhotya and Mohan Lal @ Hari Mohan,' the latter being the brother-in-law of the former, attacked Jamna Lal on the small path-way in front of their house, armed with lathis and surrounded Jamna Lal. According to the testimony of Smt. Andokhi Bai (PW 9) (wife of the deceased Jamna Lal) each of the accused persons inflicted lathi blow on the head of the deceased Jamna Lal, as a result whereof Jamna Lal fell down on the ground and Smt. Andokhi Bai (PW 9) in order to guard her husband, placed herself in such a manner so as to shield further attack on her husband Jamna Lal. Attracted by her cries, her husband's younger brother Chhotu (PW 8), Ram Kalyan (PW 7). another younger brother of Jamna Lal, Jamna Lai's mother Kanya (PW 4) and Jamna Lai's sister Rama Bai (PW 3) came to the scene of the occurrence but none of them saw the actual infliction of the lathi blows on the head of Jamna Lal. Jamna Lal was carried to Indragarh having been placed on a cot and from Indragarh he was taken by a Jeep to Sawai Madhopur hospital where he was admitted on 27.9.1995 at about 5 p.m. The prosecution case further was to the effect that Jamna Lal was not in a position to give any dying declaration or make any statement before the doctors and he was in an unconscious state and he died on the night intervening 27th and 28th Sept., 1995 and according to the doctor, he died on 28.9.95 at about 2 a.m. Police was obviously informed at about 2.20 a.m. on 28th Sept., 1995 after Jamna Lai's death and the police investigation started at about 7 a.m. on 28.9.95. Between 7 a.m. and 8 a.m. on 28.9.95 there was an inquest made by the police where admittedly the widow Smt. Andokhi Bai (PW 9), two brothers and a sister of the deceased and some other relations were present but we do not find anywhere the mention of the names of anyone of the accused persons in the inquest report.

(3.) According to the post mortem doctor, there were as many as five injuries on the person of the deceased, out of which two injuries were on the head, being injury No. 1 and 2, as mentioned in the post mortem report. Injury No. 1 was a fracture wound on the right frontal bone on the head which caused injury to the brain as well as was otherwise fatal which was sufficient in course of nature to cause death. This injury was over a lacerated wound which was caused by a lathi and the doctor was not very much sure as to whether this injury could only be inflicted by a lathi embedeed with an iron cover. The second injury which was found on the head of Jamna Lal was another lacerated wound which was of obliquely vertical nature on the right frontal part of the scalp 10 c.m. above eye brow caused by blunt weapon. Police treated the statement made by Smt. Andokhi Bai (PW 9) recorded on 28.9.95 at 2.30 a.m. as an FIR and after completion of investigation, submitted charge-sheet against two accused appellants. Ultimately, charges Under section 302 as well as under Sec. 323 Indian Penal Code against the accused persons were framed.