M. B. Sharma, J. - (1.) ACCUSED Chiman Lal has been convicted under sections 304 Part II. 452 and 323/34. Indian Penal Code. The other accused Nihala has been convicted under sections 323 and 452, Indian Penal Code. Chimanlal has been sentenced to undergo six years' rigorous imprisonment and to pay a fine of Rs. 500/- under the first count, to undergo three years' rigorous imprisonment under the second count and three months' rigorous imprisonment under the last count; in default of payment of fine under the first count he has further to suffer six months' rigorous imprisonment. His sentences have been ordered to run concurrently. ACCUSED Nihala has been sentenced to undergo three months' rigorous imprisonment under section 323, Indian Penal Code, and three years, rigorous imprisonment under section 452, Indian Penal Code. The substantive sentences have been ordered to run concurrently.
(2.) THE marriage party of one Jagdish had gone to village Malhot. Rajender son of Shrimati Buli deceased and Dayachand (P. W. 4) bad also gone in the marriage party. A theft of Rs. 250/- belonging to one Meechand took place and a charge was levelled on Rajender son of Smt. Buli that he had committed the theft. Later on it was found to be false and some other person of the village was found responsible for having committed the aforesaid theft. THE marriage party returned to village Dhanke. THE house of Shrimati Buli deceased and accused Mahilal are nearby. Shrimati Buli, mother of Rajender, on whom a false charge of theft was levelled started abusing Mahilal and others for having unnecessarily brought to disgrace his son Rajender by levelling a false charge against him. She was doing so for the last few days and on July 1, 1974 at about 8 30p. m. when Shrimati Buli was hurling abuses at Mahilal and others, it is alleged that the two accused appellants along with others armed with 'lathis' committed house trespass after having made preparation to cause hurt and cause injuries to Shrimati Buli, accused appellant Chimanlal is said to have given a Lathi blow at her head, When the others intervened, they too were beaten Shrimati Buli was taken to the hospital where she died. Dr. Ramlal Goyal (P. W 6), who was posted as Medical Jurist, Civil Hospital Ganganagar on July 1, 1974 first examined Shrimati Buli and found a single injury on her head, but later on Shrimati Buli died in the hospital and on July 2, 1974 Dr. Goyal conducted autopsy on her dead body. It was noticed that there was a lacerated wound 2-1/2"x l-l/3"x 8" on the posterior part of the left parietal legion. It was caused by a blunt weapon and was ante-mortem in nature. On opening the skull it was found that there was a linear fracture on the left parietal bone and second fracture connecting with fracture No. 1 and a transverse linear crack joining fractures Nos. 1 and 2 In the opinion of the doctor Shrimati Buli died of head injury causing compression of brain and the death was due to coma. Dr. Goyal further examined the other injured person Ramanand son of Balooram. He found that there were two injuries, both simple by blunt weapon. Dr. Goyal also examined Dayanand on July 4, 1974 and found injuries on his person. The accused persons were arrested along with others and were tried by the learned Sessions Judge, Ganganagar. They pleaded not guilty and claimed to be tried. After the close of the prosecution evidence each of the accused appellant was examined under section 313, Code of Criminal Procedure to explain the circumstances appearing against them in the evidence of the prosecution witnesses. Besides denying the charges levelled against them, accused Chimanlal stated that he had not gone in the marriage party. It was also stated by him that on the day of occurrence Shrimati Buli deceased along with Rama Nand, Dayanand, Phoolchand and Ganeshi was hurling abuses at them. He and Nihala went to pacify them and to request not to hurl abuses At this Phoolchand and Ramanand started giving lathi-blows to him. Seeing this, and that he (Chimanlal) had fallen as a result of the injuries received by him, Nihala went to the house of Chanduram and returned with a lathi. He wanted to save him and wielded his lathi-blow which struck Shrimati Buli. He also stated that he had no lathi with him. Accused Nihala also set up a similar case. The accused persons also examined Paltu Ram as a defence witness and also proved the injuries received by Chimanlal accused in cross-examination of Dr. Goyal. The learned Sessions Judge while convicting the accused appellants, acquitted the other accused persons. Dealing with the charge under sec. 304 Part II, Indian Penal Code, the main contention of the learned counsel for the accused appellants is that all the eye witnesses have stated that besides the accused appellant Chimanlal the other accused persons also gave lathi-blows on the head of Shrimati Buli. Thus it cannot be positively said that the single injury, which was received by Smt. Buli on her head, was received at the hands of Chimanlal. The learned Sessions Judge before whom similar arguments had been advanced (at page 17 typed copy of the judgment) has observed that though the argument advanced by the learned Advocate in this behalf is factually correct, but in his opinion because the witnesses were illiterate and simple villagers, they have stated that three lathi-blows were given on the head by three persons. He has also observed that they might have stated so as a result of imagination. I am of the opinion that this approach of the learned Sessions Judge in a criminal case was not called for. If a witness states some thing by imagination, then his presence itself may become doubtful at the time of occurrence. One who actually witnesses the occurrence will state what he bad actually witnessed & no statement will be made as a result of imagination. The question of imagination by enlarge will only arise in case one has not witnessed the occurrence. No doubt it can also be because the witnesses may likely to implicate more than one person. But the learned Sessions Judge has not said that he does not place reliance so far as that part of the statement of the evidence of the eye-witnesses by the learned counsel for the appellants. Ramanand (PW 1) has stated that though the first lathi-blow on the head of Shrimati Buli was given by Chimanlal but thereafter Nihala and Banwari also gave lathi blows to her and that too on her head. Phoolchand has also stated that two lathi-blows were given on the head of Shrimati Buli, one by Chimanlal and the other by Nihala, According to him Banwari had given a lathi-blow on her wrist. Dayachand (PW. 4) husband of Smt Buli has also stated that there were two injuries on the head, one at the hands of Chiman Lal and the other at the hands of Nihala, Mangilal (PW5) is the son of deceased Shrimati Buli. His name is not mentioned in the first information report. That apart, he too has stated that all the three accused persons gave lathi-blows on the head of Shrimati Buli. As already stated earlier, accused Chimanlal in his statement under 3. 313, Code of Criminal Procedure, has denied to be armed with a lathi or to have given any blow to Shrimati Buli. Dr. Goyal found only one injury on the head of Shrimati Buli and with the help of evidence oh the record, which has been discussed above, it cannot be said as to lathi-blow of which of the three person actually hit Shrimati Buli on her head. The other accused Banwari has been acquitted. It, therefore, becomes doubtful that it Was accused Chimanlal who gave a lathi-blow to Shrimati Buli as a result of which she died. In my opinion, a charge under section 304 Part II, Indian Penal Code, is not brought home to the accused.
(3.) SO far as charge under section 323, Indian Penal Code is concerned, there is clear evidence that accused Chimanlal did not give beating to any-body else except Shrimati Buli. It has been held above that it becomes doubtful that Chimanlal gave a lathi-blow to Shrimati Buli. Thus accused Chimanlal cannot be held responsible even under section 323, Indian Penal Code. I will later on deal with the charge under section 452, Indian Penal Code while dealing with similar charge against accused Nihala. Though there is evidence that Nihala also gave a lathi-blow to other injured persons but in the circumstances which shall be presently stated the case of the prosecution cannot be relied upon. Accused Chimanlal, as appears from the statement of Dr. Goyal (P. W. 6), received as many as five injuries. The first abrasion is on the left thumb, second lacerated wound is on the left parietal region, third abrasion on the left knee, fourth bruise on the left) eye-brow and the last and the fifth bruise on the left side of chest. Even the witnesses of the prosecution have admitted that there were injuries on the person of Chimanlal. Ramanand (PW 1) states that at the time of occurrence, Chimanlal also received an injury on his head, but he cannot say as to how and in what manner he received the injury. He also admits that Chimanlal was medically examined. The case of the prosecution is that Shrimati Buli was abusing the accused persons for last few days and on the day of occurrence too she was abusing. The accused went to her to request her not to do so. When she went inside the house the accused persons also chased her. Under the circumstances, it cannot be said that the accused person after having made preparations so cause hurt committed house trespass. The accused Chiman Lal also received five injuries. All the witnesses are interested witnesses and two independent witnesses Ganeshi and Gulab Singh have not been examined. Under the circumstances, it becomes highly doubtful that the occurrence took place as alleged by the prosecution. Because the accused persons only went to pacify Shrimati Buli who was hurling abuses at them, it cannot be said that they went to the house of Shrimati Buli after having made preparations to cause hurt, and when she entered the house, the accused persons also chased her and as such in my opinion no case under section 452, Indian Penal Code, in the facts and circumstances of the case, is made out. In the result, I allow the appeal, set aside the judgment of the learned Sessions Judge, Ganganagar convicting both the accused persons Chimanlal and Nihala under secs. 323/34 and 452, Indian Penal Code and accused Chimanlal under section 304 Part II, Indian Penal Code. They are acquitted of the charges levelled against them. They are on bail and need not surrender to their bail bonds which shall stand discharged. .;