GARG, J. - (1.) THE abovenamed eight accused appellants have preferred this appeal against the judgment and order dated 14. 12. 2001 passed by the learned Sessions Judge, Churu in Sessions Case No. 47/99 by which he convicted and sentenced the accused appellants in the following manner:- Name of accused Appellants Convicted under section Sentence awarded to each accused appellant 1. Gaja Nand 2. Sukha Ram 3. Sita Ram 4. Sahi Ram 5. Dula Ram @ Duli Chand 6. Lal Singh 7. Hukmi Chand @ Hukma Ram 8. Mahavir Singh 148 IPC 302/149 IPc 6 Months RI Imprisonment for life and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo 3 months imprisonment. Both the substantive sentences were ordered to run concurrently.
(2.) IT arises in the following circumstances: On 8. 8. 1989 at about 8. 30 PM, PW19 Nemaram lodged a written report Ex. P/43 before the Police Station Sardar Sahar District Churu stating inter-alia that his brother Nanuram (hereinafter referred to as the deceased) had come to Sardar Sahar and at about 6. 00 PM in the evening he has returning back to the village and as soon as he passed through the field of one Mota Ram, the accused appellants, namely, Gaja Nand, Sukha Ram, Sita Ram, Sahi Ram, Dula Ram @ Duli Chand, Lal Singh, Hukmi Chand @ Hukma Ram and Mahavir Singh, after intercepting deceased beat him with lathi and barchhi and at that time, accused appellants Sahiram and Mahaveer Singh were armed with barchhi and rest accused appellants were armed with lathi and the accused appellants Sahiram and Mahaveer Singh gave barchhi blows on the head of the deceased and rest accused appellants also beat deceased with lathi. IT was further stated in the report Ex. P/43 that when accused appellants were beating deceased, Tejaram (PW2) and Dharma Ram (PW1) had witnessed the occurrence and when they objected why they were beating deceased, the accused appellants told them that if they come there, they would also be beaten and because of fear, PW1 Dharma Ram and PW2 Tejaram returned back to the village Bholusar where PW19 Nemaram used to live and at that time, PW19 Nemaram was not in the house as he had gone to field and thereafter, PW19 Nemaram was called from the field and whole incident was narrated to him. IT was further stated in the report Ex. P/43 by PW19 Nemaram that when he started to go Police Station to give information, Mool Chand came in bullock cart alongwith dead body and he recognized that it was the dead body of his brother Nanuram (deceased) and at that time, deceased was having injuries on his head and hands and he asked Mool Chand to put the dead body at the same place from where it was taken by him. IT was further stated in the report Ex. P/43 that all the accused appellants had caused the murder of the deceased as all of them had old enmity with deceased and PW19 Nemaram. On this report Ex. P/43, PW2 O Udai Singh, who was at that time SI in the Police Station Sardar Sahar registered the case and chalked out regular FIR Ex. P/44 and thereafter, investigation was started. During investigation, through arrest memos Ex. P/4 to Ex. P/11, the accused appellants Sahi Ram, Sitaram, Dulichand, Mahaveer Singh, Hukma Ram, Lal Singh Gajanand and Sukharam respectively were arrested on 11. 8. 1999 and at the information Ex. P/47 of accused appellant Sahiram, a Barchhi was got recovered through fard Ex. P/14 and similarly, at the information Ex. P/52 of accused appellant, a Barchhi was got recovered through fard Ex. P/16 and at the instance of rest accused persons, lathies were got recovered. The site plan is Ex. D/2 and the FSL report is Ex. P/58. The post mortem of the dead body of the deceased was got conducted by the Medical Board consisting of two doctors, namely, PW14 Dr. Shankarlal and PW15 Dr. Sandeep Kumar Agarwal and the post mortem report is Ex. P/39. After usual investigation, police submitted challan for the offence under Sections 302, 341, 147, 148, 149 IPC against the accused appellants in the Court of Magistrate and from where the case was committed to the Court of Session. On 15. 3. 2000, the learned Sessions Judge, Churu framed charges for the offence under Sections 148 and 302/149 IPC against the accused appellants and the same were real over and explained to them and they denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 21 witnesses and exhibited several documents. Thereafter, statements of the accused appellants under Section 313 Cr. P. C. were recorded. In defence, three witnesses were produced by the accused appellants. After conclusion of trial, the learned Sessions Judge, Churu through impugned judgment and order dated 14. 12. 2001, after placing reliance on the two eye witnesses, namely, PW1 Dharma Ram and PW2 Tejaram and after application of Section 149 IPC, convicted the accused appellants for the offence under Sections 148 and 302/149 IPC and sentenced each of them in the manner as indicated above. Aggrieved from the said judgment and order dated 14. 12. 2001 passed by the learned Sessions Judge, Churu, the accused appellants have preferred this appeal. In this appeal, the following submissions have been made by the learned counsel for the accused appellants:- (i) That the statements of alleged eye witnesses PW1 Dharma Ram and PW2 Tejaram should have not been believed by the learned Sessions Judge because of the following reasons:- (a) That they are close relatives of PW19 Nemaram and the deceased; (b) that they are not eye witnesses, but chance witnesses and their presence on the scene is very much doubtful. (c) That their statements do not get corroboration from the medical evidence as they have stated that each and every accused appellant caused injury on the body of the deceased, but the post mortem report Ex. P/39, reveals that deceased received only five injuries while the accused appellants were 8 in number. If each and every accused appellant would have caused injuries to deceased, atleast deceased must have received 8 injuries. (d) That they have stated that accused appellants Sahiram and Mahaveer Singh had caused injuries on the head of the deceased with Barchhi while the post mortem report Ex. P/39 reveals that head injuries were caused by blunt object and therefore, these two witnesses have improved their statements when they were being examined in the Court and have stated that these two accused appellants Sahiram and Mahaveer Singh caused head injuries from back side of Barchhi. (ii) That since each and every accused appellant had not caused injuries to the deceased, therefore, all accused appellants have been erroneously convicted with the aid of Section 149 IPC. From this point of view also, the findings of the learned Sessions Judge are erroneous one and liable to be set aside. (iii) That for the sake of argument, if accused appellants Sahiram and Mahaveer Singh had caused head injuries from the back side of Barchhi meaning thereby they had no intention to kill deceased and thus, their act does not amount to culpable homicide amounting to murder punishable under Section 302 IPC and they have committed the offence punishable under Section 325 IPC or at the most, punishable under 304 Part-II IPC. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant have supported the impugned judgment and order. We have heard the learned counsel for the accused appellants, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. Before proceeding further, first medical evidence of this case has to be seen.
(3.) THE post mortem report of the deceased is Ex. P/39 and for proving the same, the prosecution has produced PW14 Dr. Shankarlal and PW15 Dr. Sandeep Kumar Agarwal. Pw14 Dr. Shankarlal and Pw15 Dr. Sandeep Kumar Agarwal in their statements recorded in Court have stated that on 9. 8. 1999 they were Medical Officers in the Government Hospital, Sardarsahar and on that day at about 10. 00 AM, they conducted the post mortem of the dead body of the deceased and found the following injuries on his body:- (i) A lacerated wound 6cm x 2cm x bone deep on occipito parietal region at middle oblique direction with multiple fracture of both parietal bones and occipital bone. Skull is depressed at the site of wound. Blunt weapon-dangerous. (ii) Lacerated wound 6cm x 2cm x bone deep on Right Parietal region, verticle direction just above the right ear with fracture of right parietal bone.-Blunt-dangerous. (iii) Lacerated wound 4cm x 2cm x 1cm with fracture of right humerous at lower 1/3rd, on posterior aspect of right upper arm at lower 1/3rd region-Blunt weapon-Grievous. (iv) Bruise 4cm x 4cm on posterior aspect of lower 1/3rd of left forearm with fracture of both bones, radius and ulna at lower 1/3rd region. Blunt-Grievous. (v) Bruise 4cm x 4cm on anterior lateral aspect of lower 1/3rd of left leg near ankle joint with fracture of both tibia and fibula bones. Blunt-Grievous. They have opined the cause of death of the deceased in the following manner:- " From the above post mortem examination, we are of the opinion that the deceased had died due to shock caused by excessive injuries as mentioned above duration of death is within 24 hours. " They have proved the post mortem report Ex. P/39. Furthermore, Pw 14 Shankarlal has categorically stated that the injuries on the body of the deceased were caused by blunt object. Thus, from the statements of Pw14 Dr. Shankarlal and Pw15 Dr. Sandeep Kumar Agarwal, it is very much clear that the deceased received five injuries as mentioned above and the same were caused by blunt object and not by sharp edged weapon and the deceased died due to shock caused by excessive injuries and thus, the death of the deceased may be classified as homicidal. ;