DEVI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal directed against the order of conviction passed by the learned Additional Sessions Judge, Raisinghnagar dated 15th of April, 1989 whereby the learned Judge convicted the accused Devilal under Section 304 Part -II, IPC for seven years' rigorous imprisonment and fine of Rs. 1.000/ -, in default of payment of fine six months' rigorous imprisonment and Tulcha under Section 304 Part -II read with Section 34, IPC for seven years rigorous imprisonment and fine of Rs. 1,000/ -, in default of payment of fine to undergo six months' rigorous imprisonment.

(2.) BRIEF facts of the case giving rise to this appeal on 20th January, 1987 at about 11.30 complainant Narayan filed a First Information Report at Police Station Chadsana stating therein that deceased Jiwanram was son of his Mama, Jiwanaram had come to his house to see him in the morning at about 12 p.m., when both of them were going to Rawla Mandi and when they were near the house of Ramrakh Bawri, they saw that accused Devilal and Tulcha were coming from the opposite direction. Devilal was armed with a kikar lathi. It is alleged that as soon as they were passing them, Tulcha and Devilal caught hold of Jiwanaram and thereafter Devilal gave a blow with kikar lathi on the head of Jiwanaram. As a result of this injury Jiwanaram started bleeding and became an conscious and fell down on the ground Sohanlal who was sitting at the shop came running and tried to intervene in the matter. It is alleged there was an enmity between Jiwanaram deceased and Tulchram and Devilal. On receiving this information police registered a case under Section 307, 341, 323 read with Section 34, IPC against the accused, but Jiwanaram died therefore, the offence was converted to 302 IPC. Both the accused were arrested and thereafter a lathi was recovered at the instance of the accused Devilal After close of the investigation both the accused were challaned under Section 302 read with Section 34 IPC. Ultimately they were committed to the Sessions for trial. Prosecution in support of its case examined all witnesses and a large number of documents were exhibited. Learned Sessions Judge after close of the trial found both the accused guilty as aforesaid and convicted them. Hence the present appeal.

(3.) I have considered the arguments of both the sides and perused the record. PW 1 Narayanram who was the person who filed the First Information Report, According to this witness Jiwanaram was a son of his Mamand therefore he was his cousin brother. It was stated that he along with him was coming from his house and were going to Rawla, in the way they came face to face with Tulcha Ram and Devilal. Devilal was armed with a kikar lathi and Tulcha was unarmed. Tulcha caught hold of Jiwan Ram and Devilal gave a blow of lathi on the head of the deceased Jiwanram. It is alleged that he fell down Sohanlal was sitting at a shop, immediately came on the scene and shouted and thereupon accused persons left the spot. It is alleged that accused told them that Jiwanram touched their tea Dolu (tea bucket) and spilled it Jiwanram became unconscious and Sohanlal told him to bring some transport. Then they transported decease Jiwanram in a camel cart. They took him to Rawla Mandi and there they met Budhram. He told them to came to Birbal's house so that they could arrange some doctor. The doctor after seeing the injured told them that they should take the injured to the hospital. Then they hired a jeep and took him to Gharsana. They tried to contact the doctor in night at about 12 -1 a.m. but they could not get him. Then they brought him to Raisinghnagar and got him admitted in hospital. Thereafter he along with Budharam went to the police station Ghadsana and lodged the report. The deceased Jiwanram died in the hospital. As against this PW 2 Sohanlal has also substantially supported the version of Narayanram PW 1 but be was specifically contradicted that he has not deposed regarding the role played by Tulcha in his statement before the police and he could not explain this discrepancy except that he did mention to police. But so fares substantial part of the story that Devilal dealt lathi blow on the head of the deceased is concerned that has been squarely supported by him. Similarly, PW 5 Kana Ram who was also an eye witness of the incident be has also substantially -supported the prosecution story but he has added that prior to this incident Tulcha Ram was carrying the tea in Dolu and deceased Jiwanlal asked him to serve tea which be declined but he tried to take the tea from Dolu and it got spilled on the road, then Tulcha Ram left that place and brother Devilal armed with kikar lathi. He also deposed that Jiwanram was coming alone when Tulcharam accompanied with Devilal came on the scene, Devilal gave lathi blow on the head of Jiwanram, then Sohanlal also came on the scene and asked him to go to Rawla and bring Narayan immediately. Thereupon he deposed, he left to inform Narayan. In his cross examination, he has deposed that he went to Rawla but he could not find Narayan. Similar is the statement of PW 6 Om Prakash. He has substantially supported the version given by PW 5 Kana Kam PW 11 Dr. M.P. Agarwal, who examined the injuries of the deceased has depose that the injury was not sufficient in the ordinary course of nature to cause death and if the victim had been given 'medical assistance in time, perhaps be could have been saved. It is stated that the deceased has died on account of heamorrhage of left temporal artery and as a result of fracture of the left temporal region.