GARG, J. - (1.) THIS appeal has been preferred by the accused appellants against the judgment and order dated 9. 7. 2001 passed by learned Additional Sessions Judge, Gulabpura in Sessions Case No. 94/2000 whereby the learned Additional Sessions Judge, Gulabpura convicted the accused appellants for offence under Sec. 304 (II) I. P. C. in place of Section 302 I. P. C. and sentenced each of them to undergo 7 years' R. I. and a fine of Rs. 500/- in default to further undergo 1 month's S. I. and also convicted the accused appellants for offence under Section 323 I. P. C. and sentenced each of them to undergo 1 month's R. I. Both the sentences were ordered to run concurrently.
(2.) THIS appeal arises in the following circumstances : (i) On 16. 9. 97 at about 6. 55 p. m. Soji S/o Deva Ji (hereinafter referred to as the Deceased) gave Parcha Bayan before Gautam Singh, ASI of the Police Station Fulia, Dist. Bhilwara stating that in the evening on 16. 9. 97, he and P. W. 3 Jiya wife of his brother were passing through the field along with the cattle and when they reached near Talab, the accused appellants Ramswaroop, Ramdeo, Rughnath, and Soji came and accused appellant Rughnath told him that he had abused his brother Soji yesterday and upon this the deceased told him that he did not abuse, rather his Bhabhi used to abuse and therefore, he also abused. It was further stated by the deceased that the accused appellants Rughnath and Ramdeo were having axe and rest of the accused appellants were armed with lathis and all the accused appellants encircled the deceased and thereafter the accused appellant Rughnath gave an axe blow on his left leg. Accused appellant Ramdeo gave an axe blow on the finger of left hand and, thereafter all started beating him. P. W. 10 Shambhu intervened in the matter and accused appellants also beat P. W. 3 Jiya and as a result of beating, the deceased received injuries on his both hands, head and near ear etc. Thereafter P. W. 2 Kailash and P. W. 5 Ramdhan took him to hospital, Fulia (it may be stated here that the deceased died on the same day i. e. on 16. 9. 1997 at about 9. 05 p. m. and this Parcha Bayan was recorded by Gautam, ASI, but this Gautam has not been produced by the prosecution nor this Parcha Bayan has been got exhibited by the prosecution ). On this Parcha Bayan, the police chalked out FIR and started investigation (FIR has also not been got exhibited ). During investigation, PW. 3 Jiya was also got medically examined and her injury report is Ex. P/4 and the post mortem report of the deceased is Ex. P/23. The accused appellants Ramswaroop, Ramdeo and Rughnath were arrested on 18. 9. 97 through Fard Ex. P/9, P/10 and P/11 respectively and Soji was arrested on 23. 9. 97 through Fard Ex. P/12. After usual investigation the police submitted challan against the accused persons in the Court of Magistrate for offence under Section 302 I. P. C. from where it was committed to the Court of Additional Sessions Judge, Gulabpura.
(3.) THAT on 8. 1. 98, the learned Additional Sessions Judge framed charges for offence under Sections 302 and 323/34 I. P. C. against the accused appellants who pleaded not guilty and claimed trial. During trial, 23 witnesses were produced by the prosecution and thereafter statements of accused under Section 313 Cr. P. C. were recorded and no evidence was led in defence. After conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 9. 7. 2001 convicted the accused appellants for offence under Section 304 (II) I. P. C. in place of Section 302 I. P. C. and Section 323 I. P. C. and sentenced them as stated above inter alia holding that : (i) Though in this case, the Investigating Officer has not been produced, but it would not affect the case of the prosecution as the eye witness P. W. 3 Jiya has been produced and her statement was found to be true by the learned Additional Sessions Judge as she was injured witness. (ii) If FIR has not been proved by the prosecution, it would not affect the case of the prosecution. (iii) That though Parcha Bayan of the deceased has not been proved by the prosecution, but since presence of P. W. 3 Jiya is very much found in the Parcha Bayan, therefore, P. W. 3 Jiya is a reliable witness. (iv) Though P. W. 10 Shambhu has been declared hostile, but he also corroborates the case of prosecution as this witness has also shown the presence of P. W. 3 Jiya on the spot. (v) P. W. 11 Ladu has also corroborated the statement of P. W. 3 Jiya to some extent. (vi) From the statements of P. W. 12 Dr. Gyan Prakash Maheshwari and P. W. 23 Dr. Satya Narayan, post mortem report Ex. P/23 has been proved and from the statements of P. W. 12 Dr. Gyan Prakash Maheshwari and P. W. 23 Dr. Satya Narayan, it is not clear that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death. (vii) The fact that the deceased died because of the injuries received at the hands of the accused is proved and when the accused appellants caused injuries to the deceased, they had no intention to murder him, but they had knowledge and, therefore, the learned Additional Sessions Judge convicted the accused appellants for offence under Section 304 (II) I. P. C. in place of Section 302 I. P. C. ;