GARG, J. - (1.) THE above-mentioned appeals and criminal revision are being decided by this common judgment as all of them arise out of common judgment and order dated 31. 8. 1982 passed by the learned Addl. Sessions Judge, Nohar. D. B. Criminal Appeal No. 338/82
(2.) THIS appeal has been filed by the accused appellant Sita Ram against the judgment and order dated 31. 8. 1982 passed by the learned Additional Sessions Judge, Nohar District Sri-Ganganagar in Sessions Case No. 31/81 by which he convicted the accused appellant Sita Ram for the offence under section 304 Part-II IPC and sentenced him to undergo six years' R. I. and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo three months' R. I. It may be stated here that by the same judgment, the learned Addl. Sessions Judge acquitted the present accused appellant Sita Ram as well as other accused, namely, Gangaram, Hiralal and Malluram for the offence under section 302 or 302/34 IPC. The facts giving rise to this appeal, in short, are as follows:- On 27. 10. 1981 at about 9. 45 PM, PW 4 Murli Dhar lodged an oral report (Ex. P/1) before PW 11 Gujai Singh, SHO, Police Station Nohar stating inter-alia that on that day at about 10. 00 AM, when he was at his house, the accused Ganga Ram and Heeralal came to his house and stated that his son Satpal (PW 1) had teased their niece, who was daughter of accused Mallu Ram. It was further stated in the report (Ex. P/1) that on this, PW 4 Murli Dhar assured them to enquire about that incident as his son Satpal (PW1) had already gone to the field. Thereafter, both accused Ganga Ram and Heeralal went away. It was further stated in the report (Ex. P/1) that thereafter PW 4 Murli Dhar went to his son Satpal (PW 1) and asked about the alleged incident and upon this, his son PW 1 Satpal told him that he did not do anything with that girl, but only asked "how do you do", Thereafter, PW 4 Murli Dhar sent one Manphool to call accused Mallu Ram, father of that girl, but he did not come. It was further stated in the report (Ex. P/1) by PW 4 Murli Dhar that on the same day at about 8. 00 PM he and his wife Singari (hereinafter referred to as the deceased) and his sons Bhoop Singh (PW 5), Mangturam (PW 6) and Tikoo Ram (PW 2) were sitting in the court-yard and his son Satpal (PW 1) was firing crackers outside the house and when his son Bhoop Singh (PW 5) was going to the house of Kalu Ram, PW 3 Ram Kumar met him and asked that accused Heera Lal, Ganga Ram, Mallu Ram and Sita Ram (present accused appellant) would beat PW 1 Satpal and thereupon, PW 5 Bhoop Singh rushed to bring back PW 1 Satpal in his house, but in the meantime, the accused appellant Sita Ram and other accused Heera Lal, Ganga Ram and Mallu Ram cried "mar-lo Mar-lo" and hearing these cries, deceased Singari came out from the house and enquired as to what was going on. Thereupon, the accused appellant Sita Ram, who was having a kasia in his hand, gave a kasia blow on the head of deceased, as a result of which, she fell down and later on died. On this report (Ex. P/1), PW 11 Gajai Singh registered the case and started investigation. During investigation, post mortem of the body of the deceased Singari was got conducted by Dr. Rajendra Kumar Gupta (PW 12) and the post mortem report is Ex. P/15. The accused appellant Sita Ram was arrested through Ex. P/10 and the kasia was got recovered from him through Ex. P/6. After usual investigation, the police submitted challan against the accused appellant Sita Ram as well as accused Mallu Ram, Ganga Ram and Heeralal for committing offence under section 302, 34 IPC in the Court of Magistrate and, thereafter, the case was committed to the Court of Session. On 4. 1. 1982, the learned Additional Sessions Judge, Nohar framed the charges under sections 302 alternatively 302/34 IPC against the accused appellant Sita Ram and other accused Mallu Ram, Ganga Ram and Heeralal and the same were read over and explained to them. They pleaded not guilty and claimed trial. In support of is case, the prosecution examined as many as 12 witnesses and exhibited several documents. Thereafter, the statements of the accused appellant Sita Ram and other accused Mallu Ram, Ganga Ram and Heeralal under section 313 Cr. P. C. were recorded and no evidence was led by them in defence. After conclusion of trial, the learned Additional Sessions Judge, Nohar, through judgment and order dated 31. 8. 1982 acquitted all the four accused Sita Ram (present accused appellant), Mallu Ram, Ganga Ram and Heeralal of the charges for the offence under Sections 302 alternatively 302/34 IPC, but convicted the present accused appellant Sita Ram for the offence under section 304 Part-II IPC and sentenced him in the manner as indicated above. Aggrieved from the said judgment and order dated 31. 8. 1982 passed by the learned Additional Sessions Judge, Nohar, this appeal has been preferred by the accused appellant Sita Ram. In this appeal, the main contention of the learned counsel appearing for the accused appellant Sita Ram is that the findings of the learned Addl. Sessions Judge, by which the accused appellant was convicted for the offence under section 304 Part-II IPC, are wholly perverse one as even if the allegations made by the prosecution are taken to be correct, the offence against him does not travel beyond the scope of Section 325 IPC and thus, the accused appellant Sita Ram should have been convicted under section 325 IPC and not under section 304 Part-II IPC and if this Court comes to the conclusion that he was going to be convicted under sections 325 IPC, then, he may be sentenced to the period already undergone by him as he has already served out the sentence of about 11 months. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
(3.) TO appreciate the above argument of the learned counsel for the accused appellant, first we would like to see the medical evidence in the present case. The post mortem report of the deceased is Ex. P/15 and the post mortem of the dead body of the deceased was conducted by Dr. Rajendra Kumar Gupta (PW 12 ). Pw 12 Dr. Rajendra Kumar Gupta in his statement recorded in Court on 18. 8. 1982 has stated that on 28. 10. 1981, he was Medical Jurist in the Government Hospital and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries:- 1. Lacerated wound 2"x1/4" bone deep on the left parietal region. Post bone depressed oblique. 2. Bruise 3 1/2" x 1" on the left knee Ant. with Abrasion Ant. 3. Abrasion 1/4" x 1/4" on the right knee front Ant. Left eye black. Eyes closed. He has further stated that after opening the head of the deceased, he found a fracture in the fronto parietal bone. He has further stated that the cause of death of the deceased was intracrenial haemorrhage due to blunt weapon on the skull. He has proved the post mortem report Ex. P/15. ;