(1.) JUDGMENT :- Appellant Asu has been convicted for offence under S. 304, Part-I, IPC and sentenced to 10 years' rigorous imprisonment with a fine of Rs. 200/- and in default to undergo two months' rigorous imprisonment while appellant Hari Singh was convicted under S. 324, IPC and awarded sentence of one year's rigorous imprisonment by learned Sessions Judge, Jalore in Sessions Case No. 16/83 decided on 30-7-1983. Both of them have assailed their conviction and sentence by this appeal.
(2.) Briefly stated, fields of the appellants are situated on the eastern side of road leading from Malwara to Raniwara. Field of deceased Tara was situated on the western side of road. A well was situated in the field of Tara. The adjacent field belonged to Mohabbat Singh which was let out to Tara. A well of Mohabbat Singh was also situated on the eastern side of the road where one of his fields was situated which was in possession of Mesa, Asu and Dungara to whom it was let out. There situated a well of Hari Singh near it. The occurrence started with a very minor incident. On the day of incident Tara and his son Sara were removing the crop of gwar which was standing in the field of Mohabbat Singh which was in their possession. Sara was taking two bullocks to his field. Dungara accused met him. One of the bullocks of Sara fumbled at Dungara. Dungara struck the bullock by a lathi. Then Sara objected to it. Thereupon Dungara assaulted him with a lathi and inflicted an injury. Dungara then went to the well of Hari Singh. After some time the appellants as well as co-accused persons came to the field of Tara. Hari Singh was armed with a sword while Asu with an iron angle. Dungara and Mesa were armed with lathis while Snankar was having a stone. They exhorted to kill Sara and then Sara ran to some distance. His father Tara beseeched but Hari Singh inflicted an injury by sword while Asu by iron angle on the head of Tara. The co-accused persons also assaulted Tara. PW-1 Mohabbat Singh saw this incident and came to rescue the deceased. He also suffered an injury which Hari Singh inflicted by sword. Kewa and Peera who were working in nearby fields also came and the accused appellants along with co-accused persons ran away. It was PW. 1 Mohabbat Singh who reported the matter at police station Raniwara. Tara in injured condition was taken to Malwara hospital but the medical officer was not available, therefore, he was brought to Raniwara where he died.
(3.) Police registered a case under Ss. 147, 148, 302 and 149, IPC and started investigation. Injuries of Tara were examined at 9-00 p.m. on 7-11-1982 and are mentioned in Ex. P. 16 but when he died, his post-mortem report Ex. P/18 was prepared by medical officer of Bhinmal which states that he died due to haemorrhage and shock of head injury and fracture of skull bones. The Investigating Officer inspected the site and prepared memo of site Ex. P/2. Site plan Ex. P/13 was also prepared by him. Accused appellants were arrested. Accused appellant Asu divulged an information under S. 27 of Evidence Act and on the basis of his disclosure statement iron angle was recovered vide Ex. P/9. Similarly a sword was recovered at the instance of Hari Singh. Challan was submitted before Magistrate having jurisdiction who committed it to the learned Sessions Judge. Learned Sessions Judge framed charges under Ss. 148, 302, 302/149, IPC against Hari Singh and under Ss. 302, 148, 302/149, IPC against Asu Singh on 1-3-1983. Both of them denied the charges and claimed trial. Prosecution examined 11 witnesses in support of its case. Then the accused appellants were examined under S. 313, Cr. P.C. They produced Sanwal Das as a witness in defence. Thereafter, after hearing both the parties, learned Sessions Judge convicted and sentenced accused appellant Asu under S. 304, Part I, IPC and Hari Singh under S. 324, IPC as stated above.