N. K. JAIN, J. - (1.) THIS appeal is directed against the judgment of learned Sessions Judge, Jalore dated 4. 6. 1986 whereby he has convicted and sentenced the accused appellants as under with a direction that all the sentences shall run concurrently. Jeewana : Under Sec. 302 IPCimprisonment for life and a fine of Rs. 200/- in default of payment of fine to undergo further three months' R. I. U/sec. 326/149 IPCfour years' R. I. and a fine of Rs. 300/in default of payment of fine to undergo further six months' R. I. U/s. 324 IPCone and a half years' R. I. and a fine of Rs. 200/ in default of payment of fine to undergo further two months' R. l. Madha : U/sec. 324 IPC one and a half years' R. 1. and a fine of Rs. 200/ in default of payment of fine to undergo further six months' R. 1. U/sec. 1148 IPCone years' R. 1. and a fine of Rs. 100/-in default of payment of fine to undergo further 15 days R. 1.
(2.) BRIEF facts of the prosecution case are that on 11. 101980, report was lodged by Ratna at 10 a. m. alleging that when he was going alongwith Pokara, Rachu, Surta, Koja, Thakra and Kalu to Kalu's Dhani, and reached at the turn of village Sankad, accused appellants Madha, Jeewana and 14 others had encircled them. Hema, Teja and Rachu were armed with Kulharies and rest of the accused were armed with Dhariya. Jeewana inflicted injury on the head of Koja by Dhariya. Koja fell down and blood came out from his head. Accused Madha s/o Lamba and other accused persons inflicted Dhariya blows on Pokara Thakra, Surta, Rachu and Ratna. They received grievouts injuries. On hearing the cries, Kalu and Uka reached and tried to settle the matter but they were told that if they would come near same treatment would be given to them. Due to injuries Koja, Thakra, Pokara and Surta became unconscious. Koja breathed his last at the Bus stand of Sankad and remaining injured persons were taken to hospital in the truck of Hema Sarpanch. On this police registered a case u/sec. 302, 307, 326, 323, 147, 148 and 149, IPC and started investigation. The dead body of Koja was sent for post mortem examination. P. W. 9 Dr. M. L. Doshi, conducted the post mortem examination vide Ex. P-19 and found following injuries: ***** It may be noted that for the same incident Sessions case no. 15/81 State Vs. Nema and 13 others was decided on 05. 8. 81, 8 persons were acquitted and six accused viz. Sujana, Chada, Madha s/o Lemba, Naina, Haru and Pubu were convicted and sentenced u/sec 302/149, 326, 324 and 148 IPC. These six accused persons preferred appeal before this Court. On 28-9-1984 a Division Bench of this Court, acquitted all those accused persons of the offence u/sec.-02/ 149 and 307/149 but converted their conviction to 326 IPC, however, their conviction and sentence u/sec. 324 and 148 IPC was maintained. Proceedings against accused Jeewana and Madha were taken u/sec. 299. But since accused Madha and Jeewana surrendered on 31. 12. 1981 and 4. 1. 1982 respectively, so, after usual investigation police submitted separate challans before the learned Munsif and Judicial Magistrate, Sanchore who committed the case no. 20/83 against Jeewana and 25/84 against Madha to Sessions Court. The learned Sessions Judge, consolidated the cases on 8. 1. 1985 as they were arising out of the same incident. The learned Sessions Judge framed the charges against the accused Jeewana u/sec. 302, 307/149, 148 and against accused Madha u/sec. 302/307/ 149 and 148 IPC. Both the accused pleaded not guilty and claimed trial. In support of its case the prosecution has examined 17 witnesses and filed 31 documents. In defence one witness Virbal Ram was examined. The learned Sessions Judge on conclusion of trial convicted and sentenced the accused appellants as mentioned above. Hence the accused appellants have preferred this appeal. Mr. Champawat, did not challenge the incident. He has not disputed that the deceased Koja's death was not natural but homicidal as proved by the statement of Dr. M. L. Doshi. The only contention made by Mr. Champawat, is that no case is made out against Madha at all because his participation is not proved beyond reasonable doubt and looking to the nature of offence committed by accused Jeewana, at the most he can be convicted u/see. 304 II IPC. Mr. Hemant Choudhary, learned Public Prosecutor has opposed the appeal and submitted that these accused persons were rightly convicted and sentenced. We have heard learned counsel for the parties and perused the record. Jeewana inflicted below on the head of deceased Koja by Dhariya. Thereafter Koja fell down and blood came out. Koja sustained one incised wound 7" x 1". In the opinion of P. W. 9 Dr. M. L. Doshi, the cause of death of Koja was shock and extensive haemorrhage due to injuries to the scalp, skull and brain. The Doctor has also admitted that there is possibility of such injury being caused, if person falls on the earth with full force. Though the learned Sessions Judge has observed that the object of unlawful assembly was not to cause death but was only to give beating and Jeewana was made responsible for the particular injury sustained by deceased Koja. As per prosecution case, the enmity of Jeewana was with Rachu and not with Koja and there is no evidence which goes to show that Jeewana had any grudge to grind an axe against Koja and to do away with him and if so, the accused could have repeated the injuries but as a matter of fact Jeewana had inflicted single injury to the deceased and did not repeat the below. There is no evidence that Jeewana had intention to cause this particular injury. There is no evidence on record to show how the accused party came to know that the complainant party would he available at the turn of Sankad and therefore, it cannot be presumed that the accused party were knowing that the complainant party would visit Kalu's Dhani. Under these circumstances, it appears that the crime was committed without premeditation on the spur of moment and the accused had not taken any undue advantage or acted in a cruel or unusual manner as Jeewana has inflicted only one injury and not repeated the same. In view of this, it could not be said that accused appellant Jeewana had intention or any motive to kill "koja but the knowledge of causing this injury can't be over-ruled. Thus this conduct of the accused brings the case within the exception 4 to Section 300 IPC with the result that the offence committed was culpable homicide and not amounting to murder. The appellant, therefore, could not have been convicted u/sec. 302 IPC.
(3.) AS regards Madha, three injuries have been attributed to him, one each to Ratna Ram, Rachu and Surta Ram. Each of them have stated as to how they were beaten by the appellants. P. W. 2 Ratna Ram has stated that Madha s/o Lamba has inflicted injury by Dhariya on his left shoulder. It is clear that this injury was not assigned to the present appellant but Madha s/o Lamba who had already been convicted for this injury. P. W. 5 Rachu has stated that Madha inflicted one Dhariya blow on his head but had not given the parentage of the accused. It was necessary as in this incident two accused were of same name Madha. Therefore, it could not be said that this injury had been caused by the present appellant Madha. So far as injured Surta Ram is concerned, he has stated that Madha s/o Dhukia i. e. present appellant inflicted injury below the knee but the Dr. had not found the alleged injury, as per injury report the injury no. 1 was on Ulna. Thus, we find that his participation in the incident is extremely doubtful. In view of the above evidence on record it is clear that the accused Madha could not be convicted for the alleged injuries and the trial court has erred in convicting him for the offence u/ secs. 324, 326, 148 and 149 IPC. For the reasons stated above we are firmly of the opinion that the appellant Jeewana u/sec. 320/149 cannot be maintained, and it must be altered to one u/sec. 304 Part II IPC. Now coming to the question of sentence. Accused Jeewana was arrested on 4. 1. 1982 and since then he is in jail and has already suffered 9 years sentence. In our opinion, the sentence undergone will be sufficient to meet the ends of justice but so far as the sentences awarded to him on the other counts are concerned, they are maintained. The convic-tinon of Madha u/sec. 326, 324, 148 and 149 IPC cannot be maintained. He is acquitted of the offences. He is already on bail, so he need not surrender, ;