KASLIWAL, J. - (1.) THIS appeal by the three accused-appellants Mehrooda, Juharu and Mst. Malli is directed against their conviction and sentence awarded by the learned Additional Sessions Judge No. 2, Alwar, in the following manner : I. Mehrooda (i) under section 302/34 I. P. C. Life Imprisonment and fine of Rs. 100/- or in default of payment of fine three month's rigorous imprisonment. (ii) under section 325/34 I. P. C. 3 year's rigorous imprisonment and a fine of Rs. 100/- or in default of payment of fine, further three months rigorous imprisonment. (iii) under section 447 I. P. C. Three months' rigorous imprisonment. (iv) under section 3/25 of the Indian Arms Act. Six months' rigorous imprisonment. II. Juharu (i) under section 302/34 I. P. C. Life imprisonment and a fine of Rs. 100/- or in default of payment of fine rigorous imprisonment for three months. (ii) under section 325/34 I. P. C. Three years' rigorous imprisonment and fine of Rs. 100/- or in default of payment of fine. (iii) under section 447 I. P. C. Three months' rigorous imprisonment. III Mst. Malli (i) under section 302/34 I. P. C. Life imprisonment and a fine of Rs. 100/- or in default of payment of fine rigorous imprisonment for three months. (ii) under section 325 I. P. C. Rigorous imprisonment for three years and a fine of Rs. 100/- or in default of payment of fine, further rigorous imprisonment of three months. (iii) under section 447 I. P. C. Rigorous imprisonment for three months. (iv) under section 323 I. P. C. Rigorous imprisonment for three months.
(2.) THE prosecution case in brief is that on October 15, 1978 at 3. 15 p. m. one Bagdal (PW. 3) lodged a First Information Report at Police Station Sadar, Alwar, that on the same day Jangi and Rehmat sons of Udaibhan had come on their field for sowing gram crop, At that time Mehrooda, Juharu, Nijar Khan, Mst. Malli, wife of Mehrooda, Ishan daughter of Mehrooda and Mst. Banno wife of Nijar Khan were ploughing their field. Mehrooda reprimanded Jangi and Rehmat as to why they had dismantled the boundary wall of their field. THEre was an altercation of words between them and thereafter Mehrooda, who was carrying a gun fired a shot at Jangi but it did not hit him. On hearing the noise the informant Bagdal and his son came running on the spot. THEreafter, Mst. Malli inflicted an axe blow on the head of Jangi and Nijar Khan gave a lathi blow on the head of Rehmat. Juharu also inflicted lathi blow on the hands of Rehmat. Mehrooda who was holding the wooden part of the gun inflicted injuries on the head of Jangi from the side of the barrel part of the gun. Bagdal also received certain injuries on his fingers. It is further, alleged that Juharu inflicted a lathi blow on the head of Bagdal while Nijar Khan, Mst. Ishan and Mst. Banno assaulted the informant's son Jormal with Lathis, Jangi and Rehmat became unconscious and fell down on the ground. On hearing the cries, Rehmat son of Chandmal and Chhotalli mevs came on the spot. On seeing these persons the assailants ran away. THEre after other persons also arrived on the spot. On the aforesaid report the police registered a case under section 307, 147, 148 and 149 I. P. C. Jangi subsequently succumbed to his injuries in the evening of the same day and as such the case was converted into section 302 I. P. C. THE post-mortem of the dead body of Jangi was conducted by Dr. Prahlad Swaroop Agrawal, Medical Jurist, General Hospital, Alwar on October 16,1978. In the opinion of the Doctor the death of Jangi was due to head injury and fracture skull compression of brain and haemorrhage. All the injuries were found to be ante-mortem in nature. The police after investigation filed a challan against Mehrooda, Juharu, Smt. Malli, Smt. Ishan and Mst. Banno. It is important to mention at this stage that the police did not file challan against Nijar Khan, though he was named as one of the assailants in the F. I. R. The accused persons pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case examined 14 witnesses in all. The accused-persons were examined under section 313 Cr. P. C. The learned trial court after hearing the arguments acquitted Mst. Ishan and Mst. Banno and convicted and sentenced the accused-appellants as mentioned above. Aggrieved against the conviction and sentences, the above mentioned three appellants have filed this appeal. Mr. Dhankar, learned counsel for the appellants did not challenge the prosecution story so far as the infliction of injuries by the accused-persons is concerned, and the death of Jangi as a result of those injuries inflicted by the accused persons. Learned counsel for the appellants has also not challenged the conviction and sentence of the appellant Mehrooda under section 3/55 of the Indian Arms Act. It is contended by the learned counsel for the appellants that from the prosecution evidence, it is not proved that the appellants had any intention to kill Jangi. In this regard it is argued that incident took place at the spur of the moment on account of altercations between the parties. Though Mehrooda Mas carrying a gun and according to the prosecution evidence itself he had fired one shot from that gun which escaped and then he did not fire any other shot, although it has been proved by the prosecution that the gun was found in a serviceable condition. On the contrary it has come in evidence of the prosecution that Mehrooda inflicted injuries on the head of Jangi from the barrel side of the gun. Similarly, as regard Mst, Malli, the evidence of the prosecution witnesses is that though she was carrying an axe with her, but she did not inflict any injury from the sharp side of the axe so as to cause any incised wound but inflicted injuries only from the back side of the axe. It is also argued that according to the evidence of PW II Dr. P. S. Agrawal injuries Nos. 2 to 5 were not sufficient in the ordinary course of nature to cause death and only injury No. l was in the opinion of the Doctor sufficient in the ordinary course of nature to cause death. It is argued that from the evidence led by the prosecution it has not been proved as to who caused injury No. l which proved to be fatal and caused the death of Jangi. In view of these circumstances, it is argued that the accused-persons can at the most be convicted under section 325 I. P. C. As regard sentence, it is contended by the learned counsel for the appellants that Mehrooda was arrested in October, 1978 and since then he is in jail. So far as Juharu appellant is concerned, he was arrested in October, 1978 and remained in jail till April 26, 1979 when he was released on bail. Subsequently, he was again put in to jail on September 12, 1982, when the judgment of the trial court was given. Since September 12, 1979, Juharu is continuously in jail and he has also remained in jail for a period of nearly three and a half years. It is contended that it would serve the interest of justice in case the appellants are sentenced to the period already undergone by them. As regard Mst. Malli, it is contended that though she remained in jail from September 12, 1979 till November 5, 1979, but the interest of justice would be served if she is awarded the sentence for the period already undergone by her because she is a woman and is aged about 65 years. Learned Public Prosecutor on the other hand contended that the accused-appellants have been rightly convicted under section 302/34 I. P. C. and supported the judgement of the learned trial court. It was also argued that the accused-appellants had an animosity and ill-will with the complainant party and had gone to the field of the complainant party with an intention to kill them. It was further argued that it was immaterial whether Mehrooda did not fire the second shot from the gun in order to kill Jangi and inflicted blow from the barrel side of the gun. It was argued that the nature of the injury No. l clearly proves that the accused-persons had an intention to kill Jangi and as such all the accused persons had common intention to commit murder of Jangi and as such their conviction and sentence under section 302/34 are correct.
(3.) WE have given our careful consideration to the arguments advanced by the learned counsel for both the parties and have also gone through the record of the case. According to the evidence of PW. 11 Dr. P. S. Agrawal there are five external injuries found on the body of the deceased. It has been admitted by this witness that injuries Nos. 2 and 3 were of simple nature. It is only one injury i. e. injury No. 1 which was sufficient in the ordinary course of nature to cause death. It has also been admitted by this witness that injuries Nos. 2 to 5 were not sufficient in the ordinary course of nature to cause death of Jangi. On a thorough perusal of the prosecution evidence, the learned Additi-onl Sessions Judge arrived at the conclusion that it was not proved by the prosecution as to who inflicted the injury No. 1 which proved to be fatal. WE have also perused the prosecution evidence and we are of opinion that the prosecution has failed to prove as to which of the accused persons is responsible to cause the fatal blow i. e. injury No. 1 from the prosecution evidence it is proved that the accused Mehrooda did not fire the second gun shot after the first gun shot had escaped Jangi. Even, Mst. Malli who was carrying an axe with her did not use the weapon from its sharp side but inflicted the blow only from its blunt side. This goes to prove beyond any manner of doubt that the accused persons had no intention to kill Jangi and the incident took place at the spur of the moment. As the prosecution has failed to prove that which of the accused persons was responsible for inflicting the fatal injury, the accused persons can only be convicted under section 325/34 I. P. C. In this regard we find support from the decision of their Lordships of the Supreme Court in Ramlal v. Delhi Administration (1 ). As regard the sentence we find that it would serve the interest of justice if the accused applicants are sentenced to imprisonment already undergone by them. A perusal of the record would show that Mehrooda is in jail since October, 1978 and as such he has already undergone a sentence nearly of four years. Juharu appellant has also remained in jail for nearly three and half, years. As regards Mst. Malli, we are of the view that she is a woman of about 65 years of age and no useful purpose would be served by sending her back to jail again. Though, she has remained in jail for nearly two months, but taking in view the fact that she is a woman of 65 years of age, it would serve the interest of justice if she is also given the sentence as already undergone by her. In the result, we partly allow this appeal. The conviction and sentence of the accused-appellants under sec. 302 read with sec. 34 I. P. C. are set aside. All the accused appellants are convicted under section 325/34 I. P. C. They are sentenced to imprisonment for the period already undergone by them. The conviction and sentences of the appellants under sections 325,447 and 332 I. P. C. are also set aside. The conviction and sentence of the accused Mehrooda under section 3/25 of the Indian Arms Act are maintained. However, the sentence of six months' rigorous imprisonment awarded to him under this count is ordered to run concurrently with the sentence awarded to Mehrooda under section 325/34 I. P. C. As the appellant Mehrooda has already undergone a sentence of more than six months, it would not be necessary for him to further undergo any sentence of six months' rigorous imprisonment under the offence of section 3/25 of the Indian Arms Act. Appellants Mehrooda and Juharu are in jail. They shall be released forthwith, if not required to be detained in connection with any other case. Appellant Mst. Malli is on bail. Her bonds are hereby discharged. . ;