SHARMA, J. - (1.) THREE appellants along with one Mangtu Ram were indicted before the learned Additional Sessions Judge, Behror, Distt. Alwar in Sessions Case No. 53/92 (70/91) for having committed the murder of Angana Ram. During the course of trial Mangtu Ram died and proceedings against him were dropped. On conclusion of trial all the three appellants were found guilty, convicted and sentenced by the learned trial Judge as under: 1. Lala Ram : 2. Mahipal @ Pappu : U/s. 302 IPC Imprisonment for life and fine of Rs. 1000/- in default to further suffer 6 months SI. U/s. 323/34 IPC 6 months R. I. and fine of Rs. 100/- in default to further suffer 15 days SI. 3. Hukam Chand : U/s. 302/34 IPC Imprisonment for life and fine of Rs. 1000/- in default to further suffer 6 months SI. U/s. 323 IPC 6 months R. I. and fine of Rs. 100/- in default to further suffer 15 days SI. All the sentences were directed to run concurrently.
(2.) THE machinery of the prosecution was set in motion by Suraj Bhan (PW. 8) through written report on March 20, 1991 lodged with the Police Station Mandhan with the averments that on the day of the incident his younger brother Angna Ram along with his son Balwant were reaping Gram Crop in their field situated near the village School while the informant was at his well. THE accused persons Mangtu, Pappu, Hukma and Lala all inhabitants of the same village were also reaping their Gram Crop on their field adjacent to deceased Angana's field. Around 9 a. m. Balwant came to the informant's well and disclosed that accused Mangtu Ram, Pappu, Hukma and Lala assaulted Angana Ram with Pharsi, Kulhari and Lathies. THE informant immediately reached at the spot of occurrence, removed his injured brother to Mandhan Hospital and after getting him admitted in the Hospital made the written report. THE Police Station Mandhan registered case No. 27/91 under Sections 307, 323/34 IPC and investigation commenced. After the death of Angana Ram the case was converted under Section 302 IPC. Autopsy on the dead body of Angana Ram was conducted. Statements of witnesses under Section 161 Cr. P. C. were recorded and the accused were arrested. Site was inspected and the weapons of offence were recovered at the instance of the accused. Blood smeared clothes, soil and weapons were sent to FSL and FSL report Ex. P. 29 was received. On conclusion of investigation, chargesheet was filed. In due course the case came up for trial. Charges under Sections 302 IPC in the alternative 302/34 IPC, 323 and in the alternative 323/34 IPC were framed. THE accused denied the charge and claimed trial. THE prosecution examined as many as 24 witnesses in support of its case. In the statements recorded under section 313 Cr. P. C. the accused claimed innocence and produced one defence witness Mahipal as DW. 1. On hearing final submissions the learned trial court convicted and sentenced the appellants as indicated hereinabove. With the assistance of the learned counsel for the parties, we have scrutinised the record. On the date of occurrence the injuries sustained by Anganaram were examined by Dr. Shiv Narain Yadav (PW. 15 ). According to injury report Ex. P. 23, following 7 injuries were found on the person of Angana Ram : 1. Lacerated wound with clot 2cm. x 1/2 cm. x skin depth on Rt. Parietal region. 2. Lacerated wound with clots 1. 5 cm x 1/2 cm, x skin depth. Rt. parietal region above the injury No. 1. 3. Contusion 3cm. x 2cm. Lt. parietal region. 4. Bruise 8cm. x 2cm. Right intra scapular region. 5. Bruise 5cm. x 2cm. Lt. intra scapular region. 6. Abrasion 9cm. x 1. 5 cm. x 2cm. Lt. intra scapular region. 7. Abrasion 2cm. x 1cm. Below Rt. Tubial Tubrocity. As per post mortem report, the death of Angna Ram was caused from haemorrhage and shock due to multiple fractures of skull bones-With intracranil haemorrhage (head injury) compression of brain, antemortem in nature. Injuries of accused Mangtu Ram were also examined vide Ex. D. 4/a, who sustained the following injuries: 1. Lacerated wound with blood cloths and scab. 1cm. x 1/4 cm. x skin depth Rt. Parietal region. 2. Lacerated wound with blood clots & Scab. Occipital region. 3. Abrasion with blood scab 1/2 cm. x 1/2 cm. Base of Lt. ring finger. 4. Abrasion with blood scab 1cm. x 1/2 cm. Base of Lt. middle finger. 5. Abrasion with blood scab 1/2 cm. x linear Dorsum of Lt. index finger As per injury report Ex. D 5/a accused Mahipal sustained the following injuries: 1. Abrasion with blood scab 1cm. x linear Lt. upper arm. 2. Abrasion with blood scab 1/2 cm. x 1/2 cm. just above the Lt. wrist joint. 3. Contusion with tenderness upper 1/3rd of Lt. fore arm. Accused appellant Hukam Chand sustained following 7 injuries vide Ex. D. 6/a: 1. Abrasion with blood scab 1. 5 cm. x 1/2 cm. Lt. Index finger. 2. Abrasion with blood scab 1 cm. x 1/2 cm. Base of Left Index finger. 3. Abrasion with blood scab 1/2 cm. x linear Base of Lt. Middle Finger. 4. Abrasion with blood scab 1/2 cm. x linear Lt. middle finger. 5. Abrasion with blood scab 1cm. x 3/4 cm. Lt. Dorsum of hand. 6. Abrasion with blood scab 1/4 cm. x linear Base of Lt. Little finger 7. Abrasion with blood scab: (a) 1/2 cm. x linear ) (b) 1/2 cm. x linear ) Dorsum of Lt. Wrist joint (c) 1 cm. x 1/4 cm.) The case of the prosecution hinges on the testimony of Jagmal (PW. 1), Shiv Lal (P. W. 2), Balwant Singh (PW. 5), Tule Ram (PW. 6), & Nihali (PW. 7) Let us scan their evidence Jagmal (PW. 1) in his deposition stated that he reached to the spot of occurrence before the arrival of Sri Ram, Ram Singh, Bhagwan Singh, Shiv Lal and Ramjilal. At one place he stated that when he reached he found Angna lying uncons-cious but at another place he deposed that he had seen Angna being beaten. He also stated that he did not see any injury on the person of Angna. He denied to have seen the injuries on the person of the accused. Shiv Lal (PW. 2) stated that Jagmal came later. He further stated that when he reached at the place of occurrence he found Angna lying on the ground with his mouth downward. He could not say as to who gave blows to whom. Balwant Singh (PW. 5), who is the son of Angna Ram, stated that when he was reaping their Gram crop alongwith his father, his sister Nihali and brother Tule Ram, appellant Mahipal armed with lathi, was passing through their field. Finding Mahipal abusing Nihali, Angna Ram objected and asked Mahipal not to abuse his dau- ghter. Mahipal then shouted and called Hukam Chand, Lala Ram and Mangtu Ram who came armed with pharsis and axe, Mangtu gave a blow from the reverse side of pharsi on the head of his father, Hukam Chand inflicted axe blow on his back. Lala Ram, Mahipal and Hukam Chand all were involved in beating. When Tule Ram interve- ned Lala Ram and Mahipal gave lathi blows on his hands. He then went to well to call his father's brother Suraj Bhan. From the statements of Tula Ram (PW. 6) and Nihali (PW. 7) it appears that the quarrel started on account of hurling abuse to Nihali by Mahipal on a previous day for crossing over the dol (boundary wall) which divided their fields. It may be deduced from the prosecution evidence that at the time of quarrel the accused Mangtu, Mahipal @ Pappu, Lala and Hukam Chand were reaping crop in their field adjacent to the field of deceased Angna Ram. There was a dol (boundary wall) between the field of the accused and the deceased. A day before the incident Mahipal hurled abuse to Nihali, the daughter of Angna Ram when she crossed over the dol. On the day of incident Angna Ram asked Mahipal as to why did he hurl abuse to his daughter. Suddenly quarrel started. Angna Ram received two lacerated wounds on the right parietal region and five contusion, bruises and abrasions and died. Accused Mangtu Ram also sustained two lacerated wounds on right parietal and occipital regions and three abrasions. Mahipal and Hukam Chand also received the injuries. The injuries received by the accused have not been explained by the prosecution witnesses.
(3.) MR. S. R. Bajwa, learned Counsel made an abortive effort to create a doubt in the finding of the trial court regarding culpability of the appellants by canvassing that the prosecution has deliberately supported the genesis and the origin of occurrence and has thus not presented true version in as much as the injuries sustained by the accused have not been explained. Their Lordships of the Supreme Court in Lakshmi Singh case (1976) 4 SCC 394 (1) indicated that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But in Ram Sunder Yavad vs. State of Bihar (2), it was propounded that where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution can not by itself be a sole basis to reject such evidence, and consequently the whole case. In regard to another submission of Mr. Bajwa learned counsel that all the alleged eye witnesses are related to the deceased and had partisan approach, we made a careful analysis of the evidence. Though there are some contradictions and embellishments in the testimony of the witnesses yet we see no substance in the plea that the accused have been falsely implicated. Disengaging the truth from the falsehood from the testimony of witnesses we find that the quarrel started all of sudden and both the parties sustained injuries in a free fight. There was neither a pre- arranged plan nor the accused acted in furtherance of the common intention. The act of accused Mangtu Ram, Lala Ram and Mahipal by which the death of Angna Ram was caused was not done with the intention of causing death or to causing such bodily injury likely to cause death. It was sudden irrational act and they had not the intention of doing more harm than was necessary. Considering the material on record, we are of the view that the case of Lala Ram and Mahipal is covered by Sec. 304 Part II and not Sec. 302 IPC. Appellant Hukam Chand in our considered opinion can not be held guilty with the aid of Sec. 34 IPC. Appellants Lala Ram and Mahipal @ Pappu have been in jail for a period of more than five years. Altering their conviction from 302 to 304 Part II IPC, we sentence them to the period already undergone by them. Their conviction under Sec. 323/34 IPC shall stand set aside. While maintaining the conviction of appellant Hukam Chand under Sec. 323 IPC we sentence him to the period already undergone by him. However the conviction of appellant Hukamchand under Section 302/34 IPC is set aside and he stands acquitted from the said charge. Appellants Lala Ram and Mahipal @ Pappu shall be released forthwith if not required in any other case. Appellant Hukam Chand is on bail. He need not surrender. His bail bonds stand discharged. ;