BAGA BHARTI Vs. SARKAR

JUDGEMENT

(1.) THESE are two appeals by the accused Baga Bharti, one filed by him from jail and the other through his learned counsel Mr. Indernath Modi, and this judgment will dispose of both of them as they arise out of the same incident and the same judgment of the learned Sessions Judge. Baga Bharti was challaned under Section 302, Penal Code but the committing Magistrate recommended his discharge under that section and charged him under Section 304 (2), The learned Sessions Judge tried him under that section for causing the death of Heersingh and convicted and sentenced him to three years rigorous imprisonment. Two other persons were also tried by the learned Sessions Judge, namely, Parmanand Bharti under Section 323, Penal Code and Ganpat Bharti under Section 339, Penal Code, but both of them have been acquitted and in this appeal, we are not concerned with them.

(2.) THIS case hails from the heart of the city of Jodhpur. The parties are close neighbours and have their houses situate almost opposite to each-other. In between these houses, there runs a road called Fatehsagar road and in the middle of this road is situate a Khaliya. It appears that behind the house belonging to Parmanand Bharti, there is a depression which had been giving trouble-daring the rains and accordingly, Parmanand was on the look out to have this depression filled up. On the 1st February 1948, the day of the occurrence at about 12. 30 or 1 P. m. , P. W. 4 Razak was carrying debris on a few donkeys and passing along the road, when Parmanand asked him to deposit it by the side of the wall of his house. P. W. 6, Nathusingh, who was a tenant of Heersingh and, at the same time, a Jamadar in the Municipal Committee did not like the unloading of the donkeys in this manner and accordingly, objected to it and snacthed the empty sack from Razak and took it away, Razak naturally complained to Parmanand with the result that the latter, who was inside his house at the time, came out and an altercation ensued between Parmanand and Nathusingh They came to grips with each other when Heersingh, who had just returned after a bath, was called by Nathusingh and he intervened. Parmanand let go Nathusingh and went for Heersingh, caught hold of him and began to beat him with fiats. The prosecution story is that at this stage, Baga accused came out of his house and dealt a blow on the head of Heersingh. The latter fell down immediately and so also Parmanand who was held in his grip by Heersingh Baga is alleged to have aimed another blow on Heersingh but it fell on Parmanand's head. Mt. Mohan Kanwar w/o Heersingh, who was standing in the door of her house and watching, also received a blow at the hands of Baga when she came out to take Heersingh away into the house. Thereafter, the accused can away. Heersingh was taken to the hospital where treatment was accorded to him and from there, he went to the Police Station and EX. P-2 first information report was lodged by him. Heersingh's condition deteriorated during the night and he died nest morning. On 2nd February 1948, post-mortem examination was performed and the following four injuries were found on the body of Heersingh: (i) The head was covered with dressings and on their removal, a stitched wound was noticed. The wound was fresh and not healed up yet. The wound had irregular edges as examined often removal of stitches. The wound was 2 1/2" x 3/4" x bone deep and was situated 1/2" to the right of the middle line of the head and parallel to it lying across the right frontorparietal autare with its 1/3 in front and 2/3 behind the suture. (2) A lacerated wound 1/2" x 1/4" x skin-deep was situated over the left palm thinar eminence. (3) Contusion 1/2' x 1/3" over the right shoulder. Oontuaion 3/4" x 3/4" over the right parietal tuberosity.