NENARAM AND ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 29.8.1988 passed by the learned Additional Sessions Judge No.2, Jodhpur in Sessions Case No. 46/1982, whereby, he convicted accused appellant Budharam for offence under Sec. 307 I.P.C. and accused appellant Nenaram for offence under Sec. 307/34 I.P.C. and sentenced each of them to undergo five years' rigorous imprisonment and to pay a fine of Rs.1000.00, in default of payment of fine to further undergo three months' simple imprisonment. The fine of Rs.2000.00 was ordered to be paid to injured Heera Lal by way of compensation.

(2.) The prosecution story in brief is that one Mool Singh, brother of injured Heera Lal-lodged a written report Ex.P-1 on 27.8.1982 at Police Station Mahamandir, Jodhpur that on the preceding night at about 9.30 P.M., when his younger brother Heera Lal was coming to his house, accused appellants Nenaram and Budharam stopped his brother in the way and inflicted blows with lathi and fists. He and his brother Shanker Lal went there upon hearing the cry of Heera Lal and intervened. According to this report, accused Nenaram inflicted lathi blows near the left ear of injured Heera Lal, whereby, blood came and accused appellant Budharam inflicted fist blows on his abdomen . Due to these blows, accused attempted to kill his brother. His brother was admitted in the hospital. Upon this report, police registered a case under Sections 341, 323 and 307 I.P.C. and investigated the case. After usual investigation, accused appellants were challaned under Sections 341, 323, 325 and 307 I.P.C. in the Court of Judicial Magistrate No.3, Jodhpur, who committed the case to the Court of Sessions. After hearing the arguments on charge, both the accused appellants were charged for offence under Sections 307, 307 read with Sec. 34 and Sec. 323 I.P.C., to which, they pleaded not guilty. Prosecution examined seven witnesses. Statements of accused appellants were recorded under Sec. 313 Crimial P.C. After hearing the arguments, the learned Sessions Judge convicted the accused appellants as indicated above.

(3.) I have heard learned counsel for the accused appellants and the learned Public Prosecutor and re-appreciated the evidence on record. In this case, the material witness is injured Heera Lal PW-2. He has stated that he and Prabhu Ram were coming from Bhadwasiya to their residence, near Imartiyabera, accused appellants Nenaram and Budharam met them in the way. Accused appellant Nenaram having lathi in his hand started quarreled with them. They took him to the vacate house. Accused appellant Nenaram inflicted lathi blow near his left ear and accused appellant Budharam inflicted fist blows on his abdomen. Upon cry by Prabhu Ram, accused appellants ran away. When he was crying, his brother Shanker Lal and Moola Singh came on the spot and intervened. He was taken to the hospital. He has also stated that accused appellant Budharam tried to throw a stone of 20 to 25 kg, which collided with his abdomen when he was raising his hands. He remained in the hospital for 28 days. PW-1 Mool Singh and PW-3 Shanker Lal have also supported the testimony of injured Heera Lal but Mool Singh has not said that stone was thrown by accused appellants, whereas, PW-3 Shanker Lal has stated that Budharam threw stone on the abdomen of his brother. The story of stone is uncorroborated. PW-2 Heera Lal says that when accused appellant Budharam was throwing stone, he raised his hands and, thereafter, the stone felt on his abdomen.