R. S. VERMA, J. - (1.) FIVE persons namely Girdhari, Het Ram, Rajiram, Bhola Ram and Om Prakash were tried by learned Additional Sessions Judge, No. 2, Hanumangarh for constituting an unlawful assembly on 26. 3. 86 at about 3. 30 p. m. in front of the house of Girdhari at village 34 LLW with the common object of committing murder of Gopiram and for committing riot, causing simple hurt to Maniram and in furtherance of the common object of all committing murder of Gopiram. By his judgement dated 27. 2. 91, learned trial Judge partly believed the prosecution story and convicted appellant Girdhari for causing murder of Gopiram. He, however, acquitted all other accused persons of all the charges framed against them. He also acquitted Girdhari of all other charges framed against him. Girdhari was convicted for offence under Section 302, IPC and was sentenced to undergo imprisonment for life and to pay fine of Rs 1000/- and in default to undergo simple imprisonment for six months. Aggrieved, Girdhari has come in appeal.
(2.) WE may here stale that the matter came up today for hearing of the bail application of Girdhari before us but the learned counsel for the appellant submitted that the conviction had been based on the sole testimony of an alleged eye witness and the points involved were also very short and therefore he may be permitted to argue the appeal itself. Looking to the submission made on behalf of the appellant, learned Public Prosecutor also agree to argue the appeal on merits. This is how we heard the appeal on merits itself. The prosecution story, briefly stated, is that on 25. 3. 86 a quarrel had taken place between deceased Gopiram and one of the accused Bhola Ram at which Gopiram had slapped Bholaram. That very evening at about 1. 30 p. m. Gopiram was coming from his field alongwith PW 1 Maniram. When both of them reached near the house of appellant, all the accused persons, named above, came out shouting 'lalkaras'. Girdhari was armed with a Gandasi while Bhola Ram was armed with a Sella. Rest of the accused a persons were armed with lathies. PW 2 Raghuveer and PW 3 Rampratap also somehow happened to be there. All of a sudden, the appellant and his companions assaulted Gopiram. Girdhari save a Gandasa blow on the head of Girdhari with the result that the fell down. Thereafter, Bholaram gave a Sella blow to Gopiram on his blow. Maniram tried to rescue Gopiram at which he was assaulted. Thereafter the accused persons left the injured persons on the spot and ran away. Raghuveer (PW2) went away to fatch a tractor. He came with a tractor after some time and injured Gopiram was carried in the tractor to hospital. A report of the incident Ex. P. l was lodged with Police Station, Pilibanga by Raghuveer the same day at about 11. 30 pm. It may be stated that the Police Station, Pilibanga is at a distance of about 26 Kilometres from the scene of the occurrence. It appears that Gopiram was eventually admitted to Government hospital. Gan-ganagar where he succumbed to his injuries after three days. He was examined for his injuries on 27. 3. 86 by Dr. Rajendra Kumar Gupta who prepared Injury Report Ex. P 10 in this regard. After death of Gopiram, autopsy was performed. It may be stated that Dr. Rajendra Kumar found in all six injuries on the person of the deceased out of which one injury had been caused by a sharp edged weapon on frontal region of the bone and it was this injury which eventually proved fatal. The Investigating Officer after making due investigation, challaned all the five persons to Sessions trial. After due committal, proceedings by a competent Magistrate and after due trial, the learned Judge acquitted all other accused persons except the appellant and convicted and sentenced him as stated above. In the present appeal, learned counsel for the appellant has firstly urged that Maniram (PW 1) was a rasident of Umewala and there is no plausible explanation for his presence on the scene of occurrence in village 34 LLW. He submits that both the witnesses Raghuveer and Rampratap did not see the present appellant inflicting any injury on the person of deceased Gopiram. He urges that in view of these circumstances appellant should be acquitted altogether of the offence under Section 302 IPC. In the alternative, he submitted that the story given by Maniram is false in number of particulars. Learned trial Court has not accepted his version that he was assaulted by any of the companions of the appellant. Likewise, the learned trial Court has not accepted his testimony to the effect that other companions of the appellant had assaulted Gopiram or Bholaram had caused a Sella blow to Gopiram. It is submitted that Maniram has not given a wholly true version of the incident and at best it appears that deceased Gopiram and Maniram went to the house of Girdhari and created some sort of trouble, upon which the incident might have taken place. It is urged that appellant Girdhari did not inflict a second blow on the person of the deceased, therefore, in the facts and circumstances of the case it cannot be said that appellant intended to cause death of (Gopiram or he had knowledge that Gopiram would meet his end. It is urged that incident was not at all pre-meditated one and must have taken place at the spur of the moment. He, therefore, submits that the appellant can, at best be convicted for offence under section 304, IPC. Learned Public Prosecutor has vehemently opposed the appeal but after going through the evidence of PW 2 Raghuveer Singh and PW 3 Rampratap, he very frankly and candidly concedes that these two witnesses could not have seen the assault by Girdhari on Gopiram. There is the admission of these two witnesses that they had reached the scene of occurrence after hearing hue and cry. The learned trial Court has found of that the house of these two witnesses were at a distance of about 825 ft. It is thus apperent that Raghuveer and Rampratap did not witness the assault on deceased Gopiram and they reached only later. The version given by PW 1 Maniram is not wholly reliable version as held by the learned trial Judge himself. Hence, we have to scrutinise his evidence carefully and only such part of his testimony can be accepted which gets corroboration from independent evidence. According to him, all the accused persons had come giving lalkaras. If it was so, he must have mentioned this fact to Raghuveer and Rampratap but both of them do not corroborate this version. FIR lodged soon after the incident also does not corroborate this version. In these circumstances, the possibility remains that when Maniram and Gopiram reached near the house of appellant Ciirdhari, some incident might have taken place during which appellant assaulted Gopiram and caused him Gandasa injury. It may be recalled that he did not repeal any Gandasa blow on the person of Girdhari. It does not appear that there was any previous enmity between appellant Girdhari and deceased Gopiram. The previous incident in which Gopiram is said to have slapped Bholaram, was a minor one. To our mind, Maniram has suppressed the true genesis of the incident. Besides this, he has falsely implicated the other co-accused and has given a highly exaggerated version of the incident. Hence, his ipse dixit cannot be believed regarding the genesis of the incident. There is no evidence on the record to show that the appellant knew from before hand that the deceased would be passing infront of his house at that time. The incident took place infront of the house of the appellant. Hence, the possibility is that some incident might have taken place between deceased and the appellant and appellant may have come out of his house all of a sudden with a Gandasi and may have given one blow to the deceased in heat of sudden passion and without any premeditation. He did not repeat the blow, nor did he act in an unusually cruel manner.
(3.) WE have considered the circumstances of the case and we are of the opinion that the act of the appellant does not travel beyond Section 304 Part II, IPC. It may be stated that he is behind the bars since 1. 4. 86 i. e. almost for more than five years and two months. In the facts and circumstances of the case particularly when the act does not appear to be a pre-meditated one, ends of justice would be met if the conviction of the appellant Girdhari is altered to one under Section 304 Part II, IPC and his sentence is reduced to the period already undergone by him. Consequently, we accept this appeal partly, acquit the appellant of offence under Section 302 IPC and set aside the sentence passed on this count but alter his conviction to 304 Part II. His sentence is reduced to the sentence already undergone by him. He shall be released forthwith if not required in any other case. . ;