- (1.) THIS appeal arises out of the judgment dated 17th January 1977, passed by Sessions Judge, Pali, by which learned Sessions Judge, Pali convicted and sentenced the appellant for offence under section 302/34 I. P. C. and awarded a sentence of life imprisonment.
(2.) THE incident which led to the prosecution of the appellant under section 302 of the Penal Code, occurred at about 11 P. M. on 10. 03. 1974, in Ill-Class Waiting Room of Railway Station, Sojai Road. According to the prosecution on 10th of March, 1974, at about 11 P. M. when the passengers were waiting for the arrival of the train, P. W. 3 Gordhan was standing at the tea stall (Chay-ki-redri ). P. W. 1 Ramlal, and P. W. 4 Jagdish were also standing near him. At that time, deceased Todarmal came near the tea stall from the plat-form side and was followed by accused Sampat Raj. Sampatraj, immediately after arrival, inflicted lathi blow on the head of Todarmal. Mst. Naraini, mother of accused Sampatraj, was also armed with lathi and the deceased tried to snatch lathi from her in the meanwhile Mahendra, brother of the accused Sampatraj, also came there and inflicted knife injured on the chest of deceased Todarmal. On receiving this injury, Todarmal fell on the ground. THEreafter, Mahendra inflicted lathi injury on the head of the deceased. When the injury tried to get up, Sampatraj inflicted injury on the head by saying that "sala Abhi to Mara Nahi Hai. " On rcceving this injury, he fell down. THE accused thereafter ran away. THE injured thereafter got up and came out from the waiting hall and fell down in the way fromwhere he was taken to Sojat Hospital by P. W. 11 Taj Mohmmed and P. W. 10 Bhanwarlal. In the hospital, Todarmal was declared as dead. THE report of this incident was lodged at Police Station C. R. P. Sojat Road by one Harisingh Constable who was on his night petrol duty at Police Station. As the other accused were not arrested, the Police after investigation presented the challan against the present appellant who was tried for the offence under section 302 read with section 34 I. P. C. THE prosecution in support of its case examined 14 witnesses and the accused party defence examined 3 witnesses. THE prosecution has examined P. W. 1 Ramlal, P. W. 3 Gordhan, P. W. 4 Jagdish, P. W. 5 Ramlal, P. W. 6 Harisingh and P. W. 11 Tajmohammed as eye-witnesses to the occurrence. All the other eye-witnesses except Ramlal P. W. 5 have supported the prosecution case one way or the other, but P. W. 5 Ramlal was declared hostile as he has not supported the prosecution case. THE learned Sessions Judge after trial relying on the testimony of the prosecution witnesses convicted the appellant under section 302/34 I. P. C. and sentenced him to undergo life imprisonment. THE learned Sessions Judge apart from the oral evidence of the prosecution witnesses also relied upon the recoveries of the blood stained cloth of the appellant Sampatraj. Aggrieved with the conviction and sentence passed by the learned Sessions Judge, the appellant has preferred this appeal. We have heard learned counsel for the appellant as well as the Public Prosecutor. The learned counsel for the appellant has argued that the witnesses in the present case are not reliable one. They have falsely implicated the appellant and they even tried to implicate an innocent person. Mst. Naraini, the mother of the present appellant, in the present crime, who was not even challaned by the Police. When the prosecution has tried to implicate an innocent person who was not even challaned then what is the guarantee that they are speaking truth on other part of the story and therefore, no conviction can be based on the testimony of such type of interested person. The learned counsel for the appellant has also invited our attention to the unnatural conduct of the witnesses at the time of incident when the accused party was inflicting injury on Todarmal, no body tried to intervene. The statement of P. W. 1 Ramlal, according to the appellant was recorded after 10 days of the incident, though he was present during the investigation. The learned counsel for the appellant also submitted that the statements of the witnesses under section 161 Cr. P. C. were recorded by the Investigating Officer after completing the investigation, which shows that the witnesses were not present at the scene of the occurrence. The counsel for the appellant has also submitted that the witnesses have made improvements in their statements in the Court from that of their statements recorded by the Police under section 161 Cr. P. C. as well as from the statements of the witnesses recorded under section 164 Cr. P. C. The Public Prosecutor on the other hand has supported the judgment of the learned Sessions Judge and has submitted that the witnesses are truthful and their probable, and their conduct cannot be said to be in any way unnatural. Their presence at the scene of the occurrence and witnessing the occurrence is most probable and they have deposed before the court what they have actually seen. We have given our anxious consideration to the rival submissions made by the counsel for the appellant and the Public Prosecutor. We have also gone through the statements of the eye witnesses. P. W. 1 Ramlal has stated that on the fateful night at about 10. 30 or 11 p. m. he along with Jagdish was standing in the waiting room at the Railway Station, Sojat, deceased Todarmal came in the waiting room from platform side and stood near the tea stall of Shyam Singh, accused Sampatraj also came from the plat from side and inflicted injury on the head of Todarmal then Sampatraj's mother Mst. Naraini also came there who was carrying a lathi in her hand. Todarmal tried to take the lathi from Mst. Naraini, but Mst. Naraini did not leave that lathi. In that scuffle, Todarmal fell down on the tea stall. In the mean while accused Sampatraj's brother Manak came there, inflicted knife injury on the chest of Todarmal and ran away. Mst. Naraini then told Mahendra what he is looking for injury and thereafter one person inflicted injury on the head of Todarmal. Todarmal after receiving this injury fell on the ground of the waiting room. During this time, accused Sampatraj came standing by the side of Todarmal and, when Todarmal tried to get up, Sampatraj inflicted injury on the head. After inflicting injuries Sampatraj, Mst. Naraini and others ran through plat form side. Todarmal got up, came out of the waiting room and fell own on the ground from there he was taken to Sojat City hospital in a jeep by Taj Mohammed, Jagdish, Ramlal and Bhanwarlal. In the hospital he wasdeclared dead by the doctor. Gordhan who is the owner of the tea stall has given statement only about the first injury inflicted by Sampatraj appellant. According to him, he thereafter ran away. He has not supported the remaining part of the story. PW 4 Jagdish has supported the statement of PW 1 Ramlal and his statement is almost identical with that of PW 1 Ramlal. PW 5 Ramlal, the other witness of the occurrence has turned hostile. PW 6 Hari Singh has given the statement only with respect to the last 2 injuries inflicted by the accused Sampatraj. P W11 Taj Mohammed has also corroborated the statement of other eye-witnesses. We have gone through the statements of all these witnesses and though a lengthy cross-examination has been done by the counsel for the appellant but nothing material has been elicited during the course of cross-examination from these witnesses. Of course on one point the witnesses are not supporting the prosecution case and that is the effect that when the deceased Todarmal tried to get up, Sampatraj told 'sala Abhitak Mara Nahi" and gave a lathi blow. The learned Sessions Judge also came to the conclusion that this part of the version given by these witnesses is not correct and is doubtful. The reading of evidences of this witness, coupled with the fact that this statement was not given by the witnesses in their statements recorded by the Police under section 161 Cr. P. C. as well as the statement recorded under section 164 Cr. P. C. raised some doubt about this part of the story, but so far as the evidence of the witnesses on other aspect of the incident is concerned, they are consistent and they have not been shaken during the cross-examination. Their presence at the scene of the occurrence is also natural. In this view of the matter, we are of the opinion that the learned Sessions Judge has not committed any illegality in placing reliance over the statements of these witnesses. Now coming to the point what offence has been committed by the present appellant Sampatraj. It has been argued that the learned counsel for the appellant that accused Manak, who inflicted knife blow on the chest of the deceased Todarmal was not accompanying the appellant and he came afterwards, and inflicted the injury with the knife and ran away and, therefore, the appellant did not share the common intention with,accused Manak in inflicting injury to Todarmal to kill him. It is an admitted fact that the present appellant Sampatraj followed deceased Todarmal in the waiting room and inflicted injuries on his person and thereafter Mahendra inflicted injury and by that time the present appellant remain standing there and when the deceased tried to get up, he inflicted injury on the head. It is not in dispute that Manak was not accompanying the appellant and he came afterwards and after inflicting the injuries he ran away. In the facts and circumstances of the case, it is not possible to hold that the appellant shared the common intention with accused to inflict that particular injury which Manak caused to deceased Todarmal and, in our view, the appellant Sampatraj cannot be convicted under section 302/34 IPC, but he can be convicted for his own act. As per the prosecution case, Sampatraj inflicted two injuries on the head of the deceased Todarmal, and according to P. W. 9 Dr. Mahendra Dhariwal, these injuries were grievous in nature. In this view of the matter, we are of the opinion that the accused Sampatraj should be convicted under Section 325 IPC instead of section 302/34 IPC. In the result, we allow this appeal in part, set aside the conviction of the appellant under section 302/34 IPC and convict him under section 325 IPC, and award a sentence already undergone and a fine of Rs. 5000/- and in default of fine further to undergo 2 year's R. I. The accused is on bail. He need not surrender and his bail bonds are discharged. One month's time is allowed to deposit the amount of fine if so deposited be paid to the legal heirs of the deceased. . ;