STATE OF RAJASTHAN Vs. DAYAL

JUDGEMENT

(1.) THIS judgment will decide D.B. Criminal Appeal No 9/6 of 1976 filed by Dayal and three others against their conviction under Section 325 read with Section 149 and also under Section 147, IPC by the Sessions Judge, Merta on November 10, 1976, D.B. Criminal Appeal No, 103 of 1977 filed by Gheesa Ram and Mukna Ram complainants against Dayal and five others against outright acquittal of Raghunath and Mool Chand and acquittal of remaining three accused for the offence under Section 302, IPC and also the State D B. Criminal Appeal No 104 of 1977 against the acquittal of Dayal and three other accused of the offences charged under Section 302 and Section 302 read with Sections 149 and 114, IPC by the said Sessions Judge in consolidated Sessions Cases Nos. 49 of 1975 and 26 of 1976 of this Court.

(2.) FACTS leading to the filing of these appeals are that on December 12, 1974 at about 500 p.m. Bhagirath deceased, Hema Ram, Gheesaram and few others were sitting on a Chabutri of Hanuman Purohit in village Sabalpur, Tehsil Parbatsar. District Nagaur. At that time Dayal, Jeewan, Misariya, Bhuraram, Raghunath, Nathmal and Mool Chand came there armed with lathies and immediately thereafter Dayal inflicted a lathi blow on the head of Bhagirath. Nathmal gave the second lathi blow on the head of Bhagirath. Other accused persons also started beating Bhagirath by lathies. Hemaram and Gheesaram, who were sitting on the Chabutari, raised an alarm and on hearing the noise, Amarsingh, Rajendra Singh, Bhanwar Lal and Muknaram came to the place of occurrence and on being scolded by Amar Singh, the assailants went away inside the house of Misariya accused. Bhagi Rath was made to lie on a cot but he died soon after. Gheesaram asked Muknaram to lodge a report in the police and accordingly a telegram was sent to the police. After necessary investigation, the police filed a charge -sheet against Dayal, Misariya, Bhura, Raghunath, Jeewan, Moolchand and Ors. . As the complainants were not satisfied with that, they filed a private complaint against 12 persons in the Court of the Judicial Magistrate, Parbatsar for the offence punishable under Section 302, IPC. Both the cases filed by the police as well as by the complainants were committed by the Judicial Magistrate for trial to the Court of Sessions and since they related to the same incident, they were consolidated by the Sessions Judge, Merta and a common trial was held. After trial the Sessions Judge held that the presence at the time of and participation of Moolchand and Raghunath in the incident was highly doubtful. According to him, it were Dayal, Jeewan, Misariya, Nathmal and Bhura who had come on the spot to beat Bhagirath and they gave beating to the latter. The Sessions Judge held that the deceased side and the accused party had long standing enmity between them and several litigations had taken place amongst them The accused party had come to the place of occurrence only with an intention to give a beating to Bhagirath by forming an unlawful assembly. Their intention was not to murder Bhagirath in as much as only one lathi blow was inflicted on the head of Bhagirath. The accused inflicted only one lathi blow each on Bhagirath and it was only by chance that one of the blows inflicted by any of the five accused happened to strike on his head. It was not established in the case as to which of the accused inflicted the head injury on Bhagirath. The Sessions Judge, therefore, did not held any of the accused guilty for the offence under Section 302 IPC. He only hold four accused persons named Dayal, Jeewan, Misariya and Bhura guilty for the offence under Section 325 read with Section 149 IPC and also under Section 147 IPC. Each of these four acccused were convicted for the said offences and sentenced to undergo rigorous imprisonment for five years and one year respectively for the two offences and the same were to run concurrently. Nathmal accused had died pending trial. Mool Chand and Raghunath were given benefit of doubt and acquitted of all the charges. The four convicts have filed D.B. Criminal Appeal No. 916 of 1976 against their conviction under Sections 325 read with Section 149 and Section 147, IPC D.B Criminal Appeal No. 104 of 1977 has been filed by the State against the acquittal of the four accused for the offences under Section 302 and Section 302 read with Sections 149 and 114 IPC. Complainants Gheesa Ram and Mukna Ram have filed D.B. Criminal Appeal No. 103 of 1677 against outright acquittal of Mool Chand and Raghunath and acquittal of Daval, Jeewan, Misariya and Bhura for the offence under Section 302 IPC. All these three appeals were heard by us together.

(3.) IT is clear from the evidence of Dr. Manohar Lal, PW 1 that he performed the post -mortem examination of the body of deceased Bhagirath. He found the following seven external injuries - -