MATHUR, J. - (1.) FOURTEEN accused persons alongwith one Khetaram (since dead) were put to trial for offence under Sections 147, 148, 302, 302/149, 307, 307/149, 323, 324, 325 and 326, I. P. C. The learned Sessions Judge, Jodhpur by the judgment dated May 21, 1981 acquitted eight accused persons viz. Jogaram, Chotharam, Deraram, Bhakarram, Muknaram, Manaram, Jetharam and Boraram of all the charges. The State has preferred appeal against acquittal of aforesaid accused persons. The appeal has been registered as D. B. Criminal Appeal No. 43/82. Accused Keraram son of Rawat Ram, Mangla Ram, Deva Ram, Gokul Ram, Magna Ram and Kera Ram son of Nena Ram have been held guilty of offence under Section 304/149, I. P. C. and each of them have been sentenced to four years'rigorous imprisonment. They have also been convicted and sentenced for the allied offences. They have preferred D. B. Criminal Appeal No. 361/81 aggrieved of their conviction and sentence. Both the appeals are decided by common judgment.
(2.) THE prosecution case as set out during the trial is that in village Bardlia, District Jodhpur there are two factions, one headed by Sarpanch P. W. 15 Kharta Ram and other by accused Magna Ram. Kharta Ram and Magna Ram pitched against each other in the last Panchayat election held somewhere in April, 1978. Kharta Ram won the election. THE members of the complainant party belong to Kharta Ram's party while the accused persons are in the camp of accused Magna Ram. It is alleged that the accused party became inimical with the complainant party, and on 11. 9. 78 went to the shop of Kishna Ram and killed him. THEy also thrashed other member of the complainant party. F. I. R. of the incident was lodged by P. W. 9 Kheraj Ram at Police Station, Jhanwar, stating inter alia that at about 11. 00 AM while he was sitting on his shop alongwith his brother P. W. 4 Basta Ram and deceased Kishna Ram, the accused persons namely Kheta Ram, Kera Ram son of Rawat Ram, Magna Ram, Joga Ram, Gokul Ram, Mangla Ram, Deva Ram, Chotha Ram, Dera Ram, Bhakar Ram, Mukna Ram, Mana Ram, Jetha Ram, Kera Ram son of Nena Ram, and Boraram arrived with a view to kill them. THEy were armed with lathis, dhariyas and Balams. Kheta Ram gave a dhariya blow on the head of Kishna Ram. On account of the injuries sustained while he was reeling down he gave another blow on his leg. On the intervention of Basta Ram, Keraram inflicted injury on him by dhariya. When Kheraj Ram and Chena Ram intervened, Mangla Ram inflicted injury on Kheraj Ram by dhariya. Magna Ram inflicted lathi blow on the head of Chena Ram. THEreafter all the accused persons belaboured the victims who had fallen on the ground. On hearing their cries, Kishore Singh, Gokul Ram, Bhinya Ram etc. arrived. On this information the police registered a case for offence under Sections 307, 324, 323, 147, 148 and 149, I. P. C. and proceeded with investigation. Kishna Ram died in the hospital and as such offence under Section 302, I. P. C. was added. After usual investigation the police laid charge-sheet against 14 accused persons and Kheta Ram. All the accused persons pleaded not guilty and claimed trial. The prosecution in support of the case examined 20 witnesses and produced certain documents. The accused persons in their statement under Section 313, Cr. P. C. stated that the prosecution evidence appearing against them is false. They also examined three witnesses in defence. The trial court found the evidence of the eye witnesses as against acquitted eight accused persons vague, loose and omnibus. The court found that mere presence of the eight accused persons on the place of occurrence is not sufficient to make them members of unlawful assembly. The court also found that the evidence of the eye witnesses is reliable to the extent that the seven accused persons, viz. Kheta Ram (since dead), Keraram son of Rawat Ram, Kera Ram son of Nena Ram, Mangla Ram, Deva Ram, Gokul Ram, and Magna Ram went together to the shop of the deceased victim. Three of them viz. Kheta Ram, Magna Ram and Kera Ram son of Rawat Ram were armed with Dhariyas and remaining four with lathis. These persons administered blows on the members of the complainant party and left the place together. The court also held that it was only Kheta Ram who inflicted injuries to deceased Kishna Ram. However the court found that from the evidence it does not appear that Kheta Ram intended to cause death of Kishna Ram. Thus in the opinion of the trial court the matter falls within third part of Section 299, punishable under second part of Section 304, I. P. C. In view of the finding the learned trial court convicted six accused persons for offence under Section 304 part II read with Section 149, I. P. C. The accused persons have also been convicted under various allied offence and sentenced as noticed above. We have heard Mr. S. R. Singhi learned counsel for the appellants in the appeal filed by the accused persons and respondents in the appeal filed by the State. We have also heard Mr. Panney Singh, Additional Public Prosecutor assisted by Mr. Jagmal Singh Choudhary, learned counsel for the complainant. We have perused the record carefully. The prosecution has examined P. W. 4 Basta Ram, P. W. 5 Chena Ram, P. W. 6 Kharta Ram, P. W. 7 Bhinya Ram, P. W. 8 Gokul Ram and P. W. 9 Kheraj Ram as eye witnesses. Out of them, P. W. 4 Basta Ram P. W. 5 Chena Ram, P. W. 7 Bhinya Ram and P. W. 9 Kheraj Ram are the injured eye witnesses. P. W. 4 Basta Ram deposed that Kherajram P. W. 9 is his real brother. Deceased Kishna Ram was also his real brother. They owned a `kirana' shop situate near hospital. At about 11. 00 A. M. on the day of occurrence he was taking bath nearly 6-7' away from the shop. Kherajram P. W. 9 and Kishna Ram were sitting at the shop. P. W. 5 Chena Ram and P. W. 7 Bhinya Ram were also sitting at the shop. Gokul Ram P. W. 8, Kharta Ram P. W. 6 and one Kishore Singh were sitting on the water reservoir situated nearby the shop. All of a sudden the accused persons came at the shop. The accused Kheta Ram, Magna Ram and Kera Ram son of Rawat Ram were armed with Dhariyas whereas the other accused persons with lathis. The accused party was led by accused Kheta Ram. Accused Kheta Ram then struck a Dhariya blow on the head of Kishna Ram. In the cross-examination he stated that accused Kheta Ram struck another Dhariya blow on the left foot of Kishna Ram on account of which he fell down. On his intervention accused Keraram son of Rawat Ram struck a Dhariya blow on his head. Accused Deva Ram struck a lathi blow on his shoulder. There was profuse bleeding from the wounds. The clothes he was wearing got drenched with blood of his wounds. P. W. 9 Kheraj Ram also came forward to help Kishna Ram but he too was not spared by the accused persons. Accused Mangla Ram struck Dhariya blow on the right hand of Kheraj Ram. P. W. 5 Chena Ram and P. W. 7 Bhinya Ram tried to intervene but they too were landed blows by the accused persons. Accused Deva Ram struck lathi blow on the head of Chena Ram. Accused Gokulram struck a lathi blow on the right hand of Bhinya Ram. P. W. 6 Kharta Ram, P. W. 8 Gokul Ram and Kishore Singh implored the accused persons not to strike blows but the accused did not yield. Those of the accused persons who did not strike blows, exhorted the other accused persons to strike blows and to finish the members of the complainant party. After causing injuries the accused persons went away towards the village. After some time a tractor was brought, the victims were placed in the trolly and were taken to the Police Station, Jhanwar and from there to Mahatma Gandhi Hospital, Jodhpur.
(3.) P. W. 5 Chena Ram, P. W. 7 Bhinya Ram and P. W. 9 Kheraj Ram are also injured witnesses. All the three witnesses have given the same version of the incident. P. W. 6 Kharta Ram and P. W. 8 Gokul Ram have also given the same version of the incident. All the six witnesses were cross-examined at length by the defence but nothing could be elicited to discredit the testimony of these witnesses. Thus there is no reason not to accept the testimony of six eye witnesses, more particularly of the four injured eye witnesses. The testimony of these witnesses is corroborated by the medical evidence. P. W. 19 Dr. P. Dayal stated that Kishna Ram was admitted for treatment in the hospital at 4. 30 P. M. on 11. 9. 1978. He succumbed to the injuries at about 6. 00 PM on the same day. He performed post-mortem of the dead-body and found the following injuries: " Wounds etc. 1. Incised wound 15 c. m. x 1. 5 c. m. and muscle deep on the antro-medical aspect of left thigh distal 1/3rd. It was oblique. 2. Incised would 3 c. m. x 0. 5 c. m. on the postro-lateral aspect of right index finger distal phalynx. The distal phalyngeal bone had been cut. 3. Incised wound 8 c. m. x 1 c. m. and bone deep in the left parito-occipital region. There was fissured fracture of the left occipital bone about 5 c. m. long and there was sub-dural haemo toma over the left parito-occipital region. " In his opinion the cause of death of Kishna Ram was head injury. Dr. P. Dayal also stated that he examined P. W. 4 Basta Ram and found he following injuries: " 1. Incised wound 5. 5. c. m. x 0. 7 c. m. and bone deep in the left fronto-parietal region of scalp. 2. Abrasion with bruise 5 c. m. x 4 c. m. in the right scapular region. 3. Abrasion with bruise 3 c. m. x 2 c. m. on the left scapular region. 4. Abrasion 1 c. m. x 0. 3 c. m. in the right ankle on lateral aspect. " He has proved the Injury Report Ex. P/33. In his opinion injury No. 1 was caused by sharp edged weapon while the remaining by some blunt object. On radiological examination by P. W. 1 Dr. Shankhla fracture of frontal and parietal bones of the left side and the fracture of the right scapula were detected. Dr. Shankhla has proved the x-ray report Ex. P/8. Thus P. W. 4 Basta Ram sustained one grievous injury caused by sharp edged weapon and three simple injuries caused by blunt object. Dr. P. Dayal further stated that he examined P. W. 5 Chena Ram and found the following injuries: " 1. Lacerated wound 3. 5 c. m. x 0. 3 c. m. and skin deep on the left perietal eminence region. 2. Bruise 3 c. m. x 2 c. m. on the right shoulder on superior aspect. " He has proved Injury Report Ex. P/37. He found both the injuries to be simple caused by some blunt object. Dr. P. Dayal has also examined P. W. 7 Bhinya Ram and found the following injury: " Abrasion 1 c. m. x 0. 3 c. m. on the posterior aspect of right hand with ill-defined swelling. " He has proved Injury Report Ex. P/36. On radiological examination fractures of 3rd, 4th and 5th metacarple and also proximal phalynx of index finger were found. Therefore, the injury was classified as grievous caused by blunt object. P. W. 19 Dr. P. Dayal also examined P. W. 9 Kheraj Ram and found the following injuries: " 1. Incised wound on the postero-medical aspect of right fore-arm with avulsion of skin and exposer of tendons (shaped as in the injury report) 11 cm. x 5 cm. 2. Abrasion 1cm x 0. 7 cm on the left zygomatic region. " He has proved the injury report Ex. P/34. In his opinion Injury No. 1 was caused by some sharp edged weapon while injury No. 2 by some blunt object. Both the injuries were simple in nature. The statement of P. W. 19 Dr. P. Dayal remained unshattered inspite of lengthy cross-examination. Thus the prosecution has proved that Kishna Ram died on homicidal death. The four injured victims, PW 4 Basta Ram, P. W. 5 Chena Ram, P. W. 7 Bhinya Ram and P. W. 9 Kheraj Ram sustained multiple, simple and grievous injuries. The injuries sustained by P. W. 4 Basta Ram and P. W. 7 Bhinya Ram were grevious. P. W. 19 Dr. P. Dayal also examined the injuries of two accused persons, namely, Deva Ram and Gokul Ram. He noticed the following injuries on the person of the accused Deva Ram: " 1. Lacerated wound 2. 5 cm x 0. 7 cm and skin deep in the right occipital region of scalp. 2. Abrasion 4. 5 cm x 1 cm on the right supra scapular region. 3. Abrasion 2 cm x 1 cm on the anterior aspect of right leg at its middle. 4. He was complaining of pain in the chest. But there was no evidence of injury. 5. Bruise 7 cm x 2 cm on the back of chest in mid-line at the level of lower ribs. " He has proved injury report Ex. D/5. In his opinion all the injuries were simple in nature. He also examined accused Gokul Ram and noticed the following injuries: " 1. Lacerated wound 0. 8 cm x 0. 2 cm and skin deep on the bridge of nose. 2. Ill defined swelling over the right fore-arm upper 2/3 and lower 1/3 rd junction. " He has proved the injury report Ex. D/6. In his opinion both the injuries were simple caused by some blunt object. It is contended by the learned counsel for the appellant that, learned Judge failed to consider that it was a case of free fight, as the incident took place all of sudden, as such each of the accused could be held guilty only for their individual act. In alternate, it is submitted that even if it is not considered to be a case of free fight the circumstances of the case show that the object of the unlawful assembly was not to commit the murder of Kishna Ram. We do not find substance in either of the contentions. It is of course true that while three accused persons were armed with Dhariyas and four with lathis, but except Khetaram (since dead) no body caused any injury to the deceased Kishna Ram. The injuries caused to the prosecution witnesses referred to above are not of serious nature. But the fact remains that all the seven accused persons went together to the shop of Kishna Ram armed with Dhariyas and lathis and one of them Kheta Ram inflicted injuries which resulted in his death. In these circumstances the only inference which can be drawn is that the unlawful assembly did not intended to commit murder of Kishna Ram, otherwise they would have added in achieving the object by inflicting mere injuries to the deceased, but they had the knowledge that such bodily injury was likely to cause death. Thus the appellants have been rightly convicted under Section 304 (II) read with Section 149, I. P. C. ;