S.C.AGRAWAL, J. - (1.) THIS appeal filed, from jail, by Mohan Singh and Amar Singh is directed against the judgment dated 17th August, 1982 passed by the Additional Sessions Judge No.2, Hanumangarh, Camp -Suratgarh, in Sessions Case No. 20/82. In the sessions case aforesaid, the appellants were prosecuted in respect of the offence under Section 302 read with Section 34. Indian Penal Code for having committed the murder of their step brother, Ratan Singh. The incident giving rise to the prosecution of the appellants for the aforesaid offence is alleged to have taken place on 2nd February, 1981 at about 5 p.m. at village Doidaspura, police station Suratgarh. The case of the prosecution is that the appellants are real brothers and the deceased happened to be the step brother of the appellants. The deceased and the appellants were living in the same house though separately. According to the prosecution, certain persons used to come into the portion of the house in possession of appellant Mohan Singh and that the deceased had objected to their coming and, as a result, the appellant Mohan Singh became annoyed. It is further alleged that Sharda, the daughter of the deceased, had gone towards the portion to the house in possession of appellant Mohan Singh at about 5 p.m. on the date of the incident and that she was beaten by both the appellants and that she returned and informed about the same to the deceased. After listening of the complaint of his daughter, the deceased asked appellant Mohan Singh .is to why he had beaten his daughter and thereupon the appellants came armed with lathis and started assaulting the deceased, as a result of which at fell down. Smt. Bimla (P.W. 1), the wife of the deceased arrived at the scene and tried to protect her husband but she was pushed away and the deceased was carried towards the house, of the appellants. After sometime Manphool (P.W.3), Chayan Singh (P.W.4) and Deep Chand came and they brought the deceased back to his house. The deceased died at about 11 a.m on 3rd February, 1981. The F.I.R. (Ex. P -1) about the incident was lodged by Jagmal Singh (P.W.2), the elder brother of the deceased, at Police Station Suratgarh on 3rd February, 1981 at 7 p.m. On the basis of the said report, a case under Section 302/34 was registered. The post -mortem examination of the dead body of the deceased was conducted by Dr. Sahi Ram (P.W.7) at the Govt. Hospital, Suratgarh. According to the post -mortem report (Ex. P -8), the deceased had five injuries on his person out of which, injury No.1 was a lacerated wound 1 ¼ " x 1/3" bone deep on the middle of tight parietal area of soalp, ¼" lateral to interpretable suture, and the other four injuries were bruises. According to the aforesaid post -mortem report, injury No.1 was sufficient to cause death in the ordinary course of nature and that the deceased had died of shock and brain haemorrhage due to fracture of right parietal and temporal bone as a result of injury No.1. The appellants were arrested on 8th February, 1981 and on the basis of the information given by them, two sticks were recovered on 10th February, 1981 vide Recovery Memos Ex. P -15 and Ex. P -16. After completing the investigation, the police filed a charge -sheet against the appe1lants and they were committed for trial to the Court of Sessions.
(2.) THE prosecution in support of its case, examined 15 witnesses, out of them, Smt. Bimla (P.W. 1), the wife of the deceased is the eye witness of the occurrence. Manphool (P.W.3) and Chayan Singh (P.W. 4) arrived at the scene soon after the incident and have stated that the deceased had told them that he had been assaulted by the appellants with the lathis. The appellants in their statements recorded under Section 313, Criminal Procedure Code pleaded not guilty. They also examined one witness. Smt. Chawali, to show that the deceased had assaulted appellant Mohan Singh. The Additional Sessions Judge by his judgment dated 17th August, 1982 held that from the evidence of Smt. Bimla (P.W. 1), Manphool (P.W. 3), Chayan Singh (P.W.4), it was established that the appellants had assaulted the deceased with lathis and that as a result of the aforesaid assault, the deceased sustained a grievous injury on the head as a result of which he died. The learned Additional Sessions Judge, however, held that since only one injury is found on the head, it could not be said that the appellants had the intention to commit the murder of the deceased and that the appellants could not be convicted under Section 302 Indian Penal Code. The Additional Sessions Judge further observed that both the appellants and the deceased were step brothers and that the occurrence had taken place due to a sudden quarrel and one injury had been inflicted on the head and, therefore, the offence committed by the appellants could not be said to be punishable under Section 304, Part I. According to the learned Additional Sessions Judge, the appellants could be imputed only with the knowledge that the injury which was caused by them was likely to cause the death of the deceased and, therefore, the appellants were liable to be convicted for offence under Section 304, Part II, Indian Penal Code. The Additional Sessions Judge, therefore, while acquitting the appellants of the offence under Section 302, read with Section 34 Indian Penal Code, convicted them of the offence under Section 302, Part II read with Section 34 Indian Penal Code and sentenced both of them to rigorous imprisonment for five years and to pay a fine of Rs. 1000/ - each and in the event of non -payment of fine to undergo rigorous imprisonment for a further period of one year. Feeling aggrieved by the aforesaid order of conviction and the sentence imposed on them the Additional Sessions Judge, the appellants have filed this appeal from jail. Since the appeal was filed from jail, Shri Kumbhat was appointed is Amicus Curiae to plead the case of the appellants.
(3.) FROM the evidence of Smt. Bimla (P.W. 1), Manphool (P.W. 3) and Chayan Singh (P. W. 4), it is established that the appellants had assaulted the deceased with lathis. From the evidence of Dr. Sahi Ram (P.W. 7) and the post -mortem report (Ex. P -3) it is established that the deceased had sustained five injuries and that injury No.1 on the head was grievous in nature and had resulted in the death of the deceased. In view of the aforesaid evidence the Additional Sessions Judge was right in holding that the appellants had inflicted injuries on the person of the deceased and as a result of the said injuries, he died. Shri Kumbhat did not assail this finding.;