A. K. MATHUR, J. - (1.) THIS is an appeal directed against the conviction of the accused-appellants by the learned Sessions Judge, Balotra, whereby the learned Sessions Judge has convicted both the accused-appellants under section 302 read with section 34 I. P. C. and sentenced them to life imprisonment and a fine of Rs. 200/- each and in default of payment of fine to further undergo three months' rigorous imprisonment each.
(2.) THE facts giving rise to this appeal are that on 20th of April, 1983 at about 9. 30 P. M. a first information report was filed by P. W- 6 Dhoklaram at Police Station Barmer stating there in that his father Tajaram Meghwal resident of Barmer was residing at Jogion-Ki-Chhatri on the road going from Mahabar On 22nd of April, 1983 at about 7 or 7. 30 P. M. when he was going to his Dhani and he was near the petrol pump situated on the Barmer-Chautala road near the Railway crossing, at that time Ambsingh and Kumpsingh along with three persons Magsingh, Paharsingh and Ramsingh started to fight with him. It is alleged that accused persons took away three she-goats of Tajaram and ultimately traced the load to the house of the accused persons. Tajaram wanted to file first information report to the police but the accused assured him that they will pay cost of the goats and persuaded him not to file the first information report. But the payment for the she-goats was not made by the accused persons and Tajaram insisted for the payment. On the fateful day Tajaram wanted to go and file the report at Police Station that enraged the accused persons. It is alleged that on that day some hot words were exchanged but one Bhianram p. w. 10 some how intervened in the matter and pacified the same. Ambsingh and Kumpsingh left that place and went near Chautan octroi outpost and the remaining three other persons Paharsingh etc. went to the Barmer Bazar. THEreafter, Tajaram and Bhianram went to the hotel for taking tea but when they left the hotel and were going on the way to Mahabar, they hardly covered some distance then they found that both the accused persons suddenly appeared, the accused Ambsingh was armed with Dharia and Kumpsingh was armed with a lathi. Ambsingh overpowered Tajaram and Kumpsingh started beating Tajaram with the lathi. Tajaram made entreaties to spare him, but both the accused started beating him with Dharia and lathies. When Tajaram wanted to get up, but he again fell down on account of the injuries. Bhianram immediately rushed from that place and informed Dhoklaram p. w. 6 son of Tajaram. Dhoklaram P. w. 6 called Smt. Babri P. w. 5 and both of them reached to the scene of the occurrence. When they were running to the scene of the occurrence they found that accused persons met them near the petrol pump. P. w. 6 Dhoklaram tried to lookafter his father, his father told him that Ambsingh and Kump-P. w 5. singh had given these injuries. He sent for cot which was brought by Smt. Babri P. w. 5. Meanwhile they saw police constable and informed them about this incident. A truck was brought by them for transporting the injured Tajaram. As soon as he reached to the hospital Doctor declared him dead. On the basis of this report, first information was registared against the accused persons. and necessary investigation was taken up. THE body of the accused was sent for post mortem and police then prepared a necessary site plan, seized the blood from the place of occurrence and sealed the same. After close of necessary investigation police filed a challan against both the accused and case was ultimately committed to the court of Sessions for trial. THE prosecution in support of its case examined 12 witnesses and got number of documents exhibited. The learned Sessions Judge after due trial convicted the accused-appellant as aforesaid. Hence the present appeal. We have heard the learned counsel for the appellant and the learned public prosecutor assisted by Mr. Sandeep Mehta, learned counsel for the complainant. Mr. Doongarsingh, learned counsel for the appellants has taken us to the statement of Bhianram p. w. 10, Dhoklaram p. w. 6 and Mst. Babri p. w. 5, and Dr. G. K. Vyas p. w. 4 who examined the injuries of the deceased". The learned counsel submitted that P. w. 6 Dhoklaram and P. w. 5 Mst. Babri are not the eyewitnesses of the incident as they reached after the occurrence, p. w. 10 Bhianram is only the eye witness of the incident, learned counsel submitted that his testimony is also not of any sterling worth. Learned counsel submitted that in view of the shaky testimony of sole eyewitness P. w. 10 Bhianram, the accused-appellants are entitled to acquittal. In the alternative, learned counsel submitted that even if the case of the prosecution is accepted as it is, then too also looking to the nature of the injuries the offence cannot travel beyond section 304 Part II I. P. C. As against this, the learned Public Prosecutor and Mr. Mehta supported the judgment of the learned Sessions Judge. So far as p. w. 10 Bhianram is concerned, his testimony is truthful one and he has not been shaken in any manner. P. w. 10 Bhianram has deposed that on the fateful day he was with Tajaram. The heated words were exchanged between Tajaram and these accused Ambsingh and Kumpsingh along with three persons, but he intervened in the matter and pacified the whole thing. The cause of the trouble was that the accused had taken away goats of the deceased Tajaram and he was asking for the payment of these goats. But payment was not made. Therefore, he intended to file a first information report at the Police Station which was not found to be palatable to them. Both of them initially left the place but soon thereafter they came back and both the accused, namely, Ambsingh was armed with Dharia and Kumpsingh was armed with lathi and belaboured him. He requested them not to beat but without any result. He immediately rushed to the son of Tajaram and informed him about this beating, pw. 6 Dhoklaram and p. w. 5 Mst. Babri both of them came on the scene. When they reached on the scene the accused left that place as they met them near the petrol pump. It has been further deposed that injured Tajaram informed his son P. w. 6 Dhoklaram that these two accused persons have belaboured him and he may be immediately taken to the hospital. A cot was immediately sent for which was brought by P. w. 5 Mst. Babri and while they were taking him to the hospital they met the constables on the way and requested them for assistance. The Constable brought the truck and they transported Tajaram to the hospital. But when the reached the hospital the doctor declared Tajaram dead. This testimony of Bhianram is clearly supported by p. w. 6 Dhoklaram and p. w. 5 Mst. Babri. In these circumstances, we are of the opinion that the prosecution has successfully established the case against the accused persons.
(3.) NOW coming to the next question that whether the offence under the present circumstances is made under section 302 or section 304 Part II I. P. C. P. W. 4 Dr. G. K. 'vyas has examined the injuries of the deceased and according to the testimony of Dr. Vyas, the cause of death was haemorrhage and shock due to injury on the right lung. The doctor has found as much as 19 injuries on the body of the deceased. But there was no injury on the vital part of the body of the deceased. Most of the injuries in the present case were contusions and there were only two incised wounds one on the dorsal of left foot and another on the right thumb. The contusions appear to have been caused by lathi. Mr. Doong-arsingh learned cdunsel for the appellants, submitted that in fact looking to the nature of the injuries there was no intention on the part of the accused to cause death of deceased. In fact the paramount intention was to chastise the deceased. We are of the opinion that the submission of Mr. Doongarsingh appears to be accepted in view of the nature of the injuries caused to the deceased, as there was no injury on the vital part of the body of the deceased, nor any one injury was sufficient to cause the death of the deceased. Therefore, taking the cumulative view of the whole situation we are of the opinion that instead of convicting the accused-appellant under section 302 I. P. C. it will be proper to convert the conviction of the I accused from under section 302 I. P. C. to section 304 part II I. P. C. and sentence then to already undergone and a fine of Rs. 2500/- each and in default of payment of fine to further undergo one year's R. I. The amount of the fine so recovbred, a sum of Rs. 5000/- may be paid to the next of kin of deceased Tajaram. The amount may be deposited within a period of 3 months. The appeal is allowed in part. .;