JUDGMENT 1. - Learned Additional Sessions Judge (Fast Track), Balotara, Camp Barmer, by judgment dated 27.5.2005 convicted the accused appellants for the offences punishable under Sections 302/34, 342 and 323 Indian Penal Code and sentenced as under:- 302/34 IPC - Life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to further undergo one years imprisonment. 342 IPC - One year's rigorous imprisonment with fine of Rs. 1000/- and in default of payment of fine to further undergo three months imprisonment. 323 IPC - One year's rigorous imprisonment with fine of Rs. 1000/- and in default of payment of fine to further undergo three months imprisonment. 2. To question correctness of the conviction recorded and sentence awarded this appeal is preferred. 3. The facts of the case as unfolded in the judgment impugned are that on 26.7.2004 at 11:00 PM, the Station House Officer of Police Station Baytu, reduced the statement of Smt. Bhikhi Devi in writing at Sarhad Chhitar Ka Paar. As per the statement reduced in writing, at about 07:00 PM of the same day Shri Tikuram, husband of Bhikhi Devi, was coming to his hamlet from Bhinako Ka Fata. Smt. Bhikhi Devi and her mother-in-law Dhapu Devi, who were at their hamlet, rushed towards the tubewell of Panaram on hearing loud cries of Tikuram. On reaching, they found that accused Narsinga Ram and Virmaram were giving lathi blows to Tikuram by tiding his hands and legs with rope. Smt. Bhikhi Devi and Dhapu Devi made an effort to save Tikuram, however, the accused persons gave certain blows to them also and they too suffered certain injuries. Bhikhi Devi and Dhapu Devi made loud alarm and hearing the same Birdaram Beniwal came to the spot of occurrence, however, the accused persons then fled from the spot. Tikuram died at the spot and Smt. Dhapu Devi after receiving injuries fell down and became unconscious. As per Smt. Bhikhi Devi, accused persons were keeping vengeance with Tikuram due to some land demarcation dispute. 4. On basis of the statement (Ex.P/1) aforesaid, a case was lodged for the offences punishable under Sections 302, 341 and 323 Indian Penal Code and investigation commenced. As per Smt. Bhikhi Devi, accused persons were keeping vengeance with Tikuram due to some land demarcation dispute. 4. On basis of the statement (Ex.P/1) aforesaid, a case was lodged for the offences punishable under Sections 302, 341 and 323 Indian Penal Code and investigation commenced. After completion of investigation a police report as per provisions of Section 173 Cr.P.C. was filed before the competent court alleging commission of crime by the accused persons pertaining to the offences punishable under Sections 302/34, 397, 394, 323, 404 and 342 Indian Penal Code. Being triable by the court of Sessions, the case was committed to the court of learned Additional Sessions Judge, Barmer. Learned Additional Sessions Judge after hearing counsel for the parties framed the charges for commission of offences punishable under Sections 342, 397, 394, 302/34 and 323 Indian Penal Code and on denial of the same trial commenced as desired. 5. The prosecution supported its case with the aid of evidence adduced by the witnesses PW-1 to PW-21 and documents prepared during the course of investigation. Opportunity was extended to the accused appellants to explain the adverse circumstances available in the prosecution evidence and while availing the same, both the accused stated that deceased Tikuram was a drunkard and a person of loose virtues. He tried to commit rape with wife of accused Narsinga Ram, therefore, beating was given to him, consequent to that he died. The accused persons also stated that earlier too Tikuram committed rape with Smt. Meera, Smt. Anchhi and Smt. Pepo. 6. In defence, statements of DW-1 Smt. Bhikhi, DW-2 Smt. Meera, DW-3 Anchhi, DW-4 Mohan, DW-5 Narsinga Ram (accused appellant) were recorded. Certain documents were also exhibited in defence. 7. Learned trial court after examining the entire evidence available on record and hearing learned Public Prosecutor and counsel for the accused persons recorded conviction and awarded sentence. 8. In appeal, the arguments advanced by counsel for the appellants are that - (1) the offence admittedly committed by the accused appellants does not travel beyond an offence punishable under Section 325 Indian Penal Code; and in alternative (2) even by admitting the entire case as advanced by the prosecution, the offence committed by the accused appellants is not a culpable homicide amounting to murder, but an offence punishable under Section 304 Part-II Indian Penal Code. While opposing the arguments, learned Public Prosecutor submits that adequate evidence is available to the effect that the accused persons were intending to kill Tikuram. It is asserted that admittedly the accused persons first tied hands and legs of Tikuram and then gave him severe lathi blows resulting into his death. They also gave lathi blows to Smt. Dhapu Devi, mother of the deceased and Smt. Bhikhi Devi, wife of the deceased, when they tried to save him. These facts clearly indicate the intention of the accused appellants. 9. Heard learned Public Prosecutor and counsel for the appellants. 10. There is no dispute that death of Tikuram was a homicidal one and due to the injuries given by the accused persons. We are not discussing the evidence adduced in this regard by the prosecution simply for the reason that the accused persons have admitted the factual position noticed above. 11. Precisely the question is that whether the accused appellants are guilty for the offence punishable under Section 302/34 Indian Penal Code or for the offence punishable under Section 325 or 304 Part-II Indian Penal Code. 12. During the course of investigation an autopsy on the person of deceased Tikuram was made and he was having following injuries:- 1. Bruise 4 x 2 cm near left eye. 2. Bruise 2 x 2 cm over right frontal region scalp. 3. Multiple bruises over back of chest size varying from 5 cm x 2.5 cm to 10 cm x 2.5 cm. Some bone coalesces. 4. Bruise covering whole of left buttock thigh posteriorly, anteriorly upto ⅔ part of thigh. 5. Bruise covering whole of right buttock, thigh posteriorly, anteriorly upto ⅔ part of thigh. 6. Lacerated wound 3 cm x 1 cm over right ankle. 7. Multiple bruises left upper arm size 5 cm x 2.5' to 7 cm x 2.5 cm. 8. Multiple abrasions over right hand fingers ½ x ½ cm. 9. Abrasions multiple over right wrist ½ x ½ cm to 1 x ½ cm. 13. As per the postmortem report (Ex.P/23) the cause of death was shock due to multiple antemortem injuries. The contents of the postmortem report were verified by PW-18 Dr. Mangilal Bohra. It is also relevant to note that during the course of investigation PW-1 Smt. Bhikhi and PW-14 Smt. Dhapu Devi too were examined and they were having certain injuries. 13. As per the postmortem report (Ex.P/23) the cause of death was shock due to multiple antemortem injuries. The contents of the postmortem report were verified by PW-18 Dr. Mangilal Bohra. It is also relevant to note that during the course of investigation PW-1 Smt. Bhikhi and PW-14 Smt. Dhapu Devi too were examined and they were having certain injuries. The injuries received by Smt. Dhapu Devi as per the injury report Ex.P/24 were as under:- 1. Bruise 5 x 2 cm right thigh. 2. Bruise 3 x 2 cm right thigh near injury No. 1. 3. Bruise 4 x 2 cm left thigh. 4. Bruise 20 cm x 2 cm back of chest right to left obliquely. 5. Bruise 10 x 2 cm back of chest supra scapular region. 14. The injuries received by Smt. Bhikhi Devi as per injury report Ex.P/25 were as under:- 1. Bruise 7 x 2.5 cm placed horizontally over lower ⅓rd of left leg - reddish in colour. 2. Bruise 2.5 x 2.5 cm present over right lateral aspect of upper ⅓rd of leg reddish in colour. PW-18 Dr. Mangilal Bohra has verified the injuries received by the above named ladies. 15. True it is, no incised wound was available on the person of deceased Tikuram and in the postmortem report it has not been stated that the injuries received by him were sufficient to cause death in normal course of life, but merely on that count it cannot be said that the offence committed by the accused persons does not travel beyond an offence described under Section 325 Indian Penal Code. 16. Adequate evidence is available on record to establish that the accused persons first caught hold of deceased, tide his hands and legs with rope and then gave multiple injuries, shock of those multiple injuries caused death. Admittedly, the accused persons have given several injuries to the deceased and cumulative effect of those was cause of death, as such, not to point out any specific injury sufficient to cause death, cannot be a reason to say that the accused appellants were not intending to commit any offence punishable under Section 302 Indian Penal Code. Admittedly, the accused persons have given several injuries to the deceased and cumulative effect of those was cause of death, as such, not to point out any specific injury sufficient to cause death, cannot be a reason to say that the accused appellants were not intending to commit any offence punishable under Section 302 Indian Penal Code. It is also pertinent to note that the injured eye witnesses PW-1 Bhikhi Devi and PW-14 Dhapu Devi in specific terms stated that when they made an effort to save deceased Tikuram, lathi blows were given to them also. These facts clearly indicate that the accused persons were intending to kill Tikuram and, therefore, they were not permitting anyone to save him. The discussions made above is also sufficient to establish that the accused appellants were acting quite cruelly and they were taking complete advantage of the existing circumstances. As such, the argument advanced to bring out the offence committed by the accused persons from the ambit of Section 302/34 Indian Penal Code is ill-founded. Suffice to mention here that the explanation advanced by the accused persons and the evidence adduced in defence in no manner dismentals the prosecution case. Whatever evidence available is only with regard to the earlier conduct of the deceased, but not relating to the incident in which Tikuram died. Accused Narsinga Ram (DW-5) though made an effort to establish that deceased Tikuram was tried to commit rape with his wife and that resulted into some quarrel, but that is not at all trustworthy in view of the fact that adequate evidence is available to prove earlier vengeance between the parties due to some land dispute and further that Smt. Dhapu Devi and Smt. Bhikhi Devi came to the spot to save Tikuram but the accused persons gave lathi blows to these two ladies also. It is also relevant to notice that Dhapu Devi is an old lady and Bhikhi Devi at the time of occurrence was pregnant. The accused persons, if had any spontaneous reason to give beating to deceased Tikuram, then at least they would have not assaulted the ladies above named. 17. In view of the discussions made above, we are having no hesitation in affirming the conviction recorded and sentence awarded. The appeal, thus, is having no merit, hence dismissed.Appeal dismissed. *******