- (1.) THE appellants Ramveer Singh and Deewan have preferred this joint appeal against their conviction and sentences under Section 302 to imprisonment for life and a fine of Rs. 200/- each, passed by the learned Additional Sessions Judge, Dholpur, in Sessions Case No. 105/1988.
(2.) INITIALLY, ten accused persons were charge-sheeted and prosecuted for the offence under Section 149, 302, 302/49 and 323/149 I. P. C. The learned Additional Sessions Judge vide his impugned judgment convicted and sentenced the appellants as stated above but acquitted all other co-accused from all the charges levelled against them. In brief, the prosecution case is that P. W. 11 Sughad Singh made a report at Police Station Basadi, about the incident, which had taken place on the same day at 9 a. m. on 2. 10. 1986. It was stated in the report that he and his father Anek Singh were going to the field from their house and all the ten accused persons met in the way. The accused Ramveer, Deewan and Sultan were having lathies, Bachhu Singh and Rukam Singh were having country made pistols, while others had stones. It was stated in the report that Bachhu and Rukam Singh made fires from their pistols, but it did not strike to any one, then the appellants Ramvir and Deevan, inflicted one lathi blow each on the head of the deceased. It was also stated that when they attempted to remove Anek Singh, who had fallen on the ground after being injured, they were also assaulted by the accused persons causing injuries to the informant and P. W. 8 Shyam Lal. On this report, a case under Section 307 IPC was initially registered. Subsequently, after the death of injured Anek Singh the offence under section 302 IPC was added. The dead body of Anek Singh was post-mortemed by Dr. Narain Swaroop Sareen (P. W. I ). The post-mortem report is Ex. P. 2. As per the post-mortem report, the deceased had five injuries, out of which three were lacerated wounds on the head. Injury No. 4 was an abrasion and No. 5 was an echymosis. Out of the three injuries on head, one was found to be simple in nature. On opening of the body, the doctor found fracture of right parietal bone and frontal bone. The Doctor has opined that the Injury Nos. 1, 2 and 3 were sufficient in the ordinary course of nature to cause death of the deceased. He further stated that the fracture of left and right parietal bone of the deceased were the result of Injury Nos. 1 and 2 & there was no fracture from Injury No. 3. In cross-examination, the doctor stated that Injury No. 3 was simple in nature. He also stated that the fractures could be caused from any of the Injuries No. 1 & 2. He also stated that he was ' not in a position to tell as to which of the two injuries on head caused fractures of the deceased. After completion of investigation, the police submitted a charge-sheet against all the ten accused persons, including the appellants & later on they were committed to the trial court for their trial. During the trial, the prosecution examined 18 witnesses. P. W. 5 Amar Singh, P. W. 6 Bhanwar Singh, P. W. 8 Shyam Lal, P. W. 9 Pradeep Kumar, P. W. 10 Gaj Singh, P. W. 11 Sudhar Singh were examined as eye-witnesses of the incident. Out of the aforesaid eye-witnesses, the learned trial court disbelieved P. W. 5 Amar Singh and P. W. 9 Pradeep Kumar. It may be stated that P. W. 3 Betal Singh & P. W. 18 Baijnath were also examined as eye- witnesses of the incident & their names were also mentioned in the FIR as such, but they did not support the prosecution case. The learned trial-court did not believe the prosecution case qua the accused Bacchu and Rukam Singh, against whom the accusation was that they made fires from country made pistols. The learned trial court also did not act upon the prosecution case that the accused Ganpat & Sultan caused injury/injuries on the head of the deceased. The trial court also did not believe that other accused persons caused injuries to the deceased by stone and also to other two members of the complainant party viz. Shyam Lal and Sughar Singh. However, the learned trial court relied upon the statements of the prosecution witnesses qua the appellants, to the extent that each one of them caused one blow on the head of the deceased. Consequently, they were convicted under Section 302 IPC, as the doctor had opined the injuries to be sufficient in the ordinary course of nature to cause death of the deceased. We have heard learned counsel for the appellants and learned Public Prosecutor. After making his submissions for some time on merits of the case, the learned counsel for the appellants conceded that the finding of the trial court is sustainable that each of the accused appellants caused one lathi blow to the deceased. We have also perused the statements of the witnesses and we are of the view that the finding of the trial court that each of the accused appellants inflicted one lathi blow on the head of the deceased is well-founded and the learned counsel for the appellant, rightly made concession on this fact.
(3.) THE learned counsel strenuously contended that the incident took place without pre meditation. THEre was no immediate motive to commit murder of the deceased Anek Singh and even if the prosecution case is accepted that 2-3 months prior to the incident Anek Singh deceased had given evidence in the police, against the accused appellants for cutting a tree, the said motive was not so grave so that the appellants could have the intention to commit murder. It was also argued that two of the accused persons were having country made pistols to commit murder of the deceased or his son Sudhar Singh, who was also there. Counsel further submitted that as per the facts there were ten persons as assailants and the total number of injuries sustained by the deceased were five. This goes to show that there was no intention to commit murder. In the sequence, it was contended that as per the prosecution case, the accused appellants inflicted only one blow with a lathi, without repetition. Lastly, it was contended that prior to the actual incident of assault, there was exchange of abuses, of some time between the members of the complainant party and the accused persons. On the other hand, the learned Public Prosecutor contended that the conviction of the appellants under Section 302 IPC was rightly made by the trial court looking to the medical evidence and the force used by the appellants in inflicting the injuries. We have given our careful consideration to the above submissions. The intention has to be gathered from the facts and circumstances of each case. In the instant case, the accused persons and the deceased resided in the same village. No immediate cause of the incident has been brought on the record by the prosecution. The alleged cause that the deceased Anek Singh gave evidence before the police 2 or 3 months proof to the incident that the accused had cuts the trees in our opinion, was not so grave, even if it is believed, that the accused would have intended to commit murder of the deceased. It is also noteworthy that as per the prosecution case, there were ten persons and two of them were having country made pistols. Admittedly, the fires were not aimed towards the deceased. On the other hand, these were made in the air. This circumstance also shows that the intention of the accused persons was not to commit murder. Further, only one blow was given by each of the appellants and there was no repetition, which could have been done by them to see that the man dies and does not survive. There were other persons, who caused some of the injuries to the deceased but they have been acquitted Thus, taking into consideration, all the facts and circumstances of the case, we are of the opinion that the accused appellants did not intend to commit murder of the deceased. However, we are also of the view that the act done by the accused appellants was with the knowledge that it was likely to cause death even if they had no intention to cause death of the deceased Anek Singh. We, therefore, think it "proper to convict the appellants under Section 304 (2) IPC. ;