SHARMA, J. - (1.) THE appellants six in number faced trial in Sessions Case No. 80/2001 before the learned Additional Sessions Judge No. 2, Bharatpur, who vide Judgment dated November 28, 2002, convicted and sentenced the appellants as under:- Kali Charan: U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer two months simple imprisonment. U/s. 307 IPC: To suffer simple imprisonment four years and fine of Rs. 500/-, in default to further suffer two months simple imprisonment. U/s. 326 IPC: To suffer simple imprisonment four years and fine of Rs. 500/-, in default to further suffer two months simple imprisonment. U/s. 148 IPC: To suffer simple imprisonment one year. U/s. 324 IPC: To suffer simple imprisonment six months. (1) Suresh, (2) Man Singh, (3) Gainda, (4) Smt. Maya and (5) Kumari Seema: U/s. 302/149 IPC: Each to suffer life imprisonment and fine of Rs. 500/-, in default to further suffer two months simple imprisonment. U/s. 307/149 IPC: Each to suffer simple imprisonment four years and fine of Rs. 500/-, in default to further suffer two months simple imprisonment. U/s. 326/149 IPC: Each to suffer simple imprisonment four years and fine of Rs. 500/-, in default to further suffer two months imprisonment. U/s. 148 IPC: Each to suffer simple imprisonment one year. U/s. 324/149 IPC: Each to suffer simple imprisonment six months. U/s. 323 IPC: Each to suffer simple imprisonment six months. Substantive sentences were directed to run concurrently.
(2.) THE prosecution story is woven like this:- On July 12, 1999 around 9. 30 AM Deen Mohd. SHO Police Station Nadbai (PW. 19) received information on telephone that a criminal incident occurred in village Bhosinga and the injured persons arrived at the Hospital Nadbai. Deen Mohd immediately rushed to the Hospital where he found dead body of Jagveer. Injured Baikunthi, Ram Dayal, Pushpa and Bablu @ Paras Ram were also there. Deen Mohd. recorded parcha bayan (Ex. P. 16) of Smt. Pushpa (PW. 9) who stated that relations between her husband and his uncle were strained and family interaction between them was stopped. However around 8 AM Nahni (her husband's uncle's daughter) came and offerred Madhi-Bayana (sweets of marriage that was celebrated on June 30, 1999) which was accepted by her (Pushpa ). Her mother in law Baikunthi, who had arrived in the meanwhile, asked Nahni as to why after ten days of marriage she brought unless eatables, Nahni became furious and came back with her mother Maya and started beating her (Pushpa) and Baikunthi. Bablu @ Parasram (her husband) and Jagveer (her brother in law) when raised protest, they were also given beating. Kalicharan inflicted blow with Pharsa on the person of Jagveer who died and her father in law, mother in law and husband had also sustained injuries. On the basis of parcha bayan of Pushpa, Police Station Nadbai registered a case for the offences under Sections 147, 148, 149, 323, 307 and 302 IPC and investigation commenced. Post mortem on the dead body was performed. Necessary memos were drawn, statement of witnesses were recorded, the accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Bharatpur, Kalicharan was charged for the offences under Sections 148, 302, 307, 326 and 324 IPC and other accused Mansingh, Maya, Gainda, Suresh and Kumari Seema were charged for the offences under Sections 148, 302/149, 307/149, 326/149, 324/149 and 323 IPC, who denied the charges and claimed trial. THE prosecution in support of the case examined as many as 19 witnesses and 41 documents. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence and in defence six witnesses were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Having scanned the material on record we notice that the death of Jagveer was homicidal in nature. As per postmortem report (Ex. P. 13) following ante mortem injuries were found:- (1) Incised wound 8 x 1 cm x 2cm x teeth deep on chin on Lt. side direction of wound Right to Lt. tailing on Lt. side of cheek margin shapes deep on lower jaw (Mandible, teeth are cut Rt. to Lower in use to 1st 2nd canire on Lt. side. (2) Incised wound 5 x 2 deep to plural cavity between spine to scapular base on Rt. back at level J/t to 4 spine. According to Dr. Sukh Ram (PW. 2) death was caused on account of asphyxia due to internal bleeding and lungs collapse. Smt. Pushpa (PW. 6) vide injury report (Ex. P. 9) received following injuries: 1. C/o Pain & tenderness on scalp. 2. C/o Pain & tenderness on back. 3. C/o pain & tenderness on back of neck. Paras Ram (Babloo) (PW. 8) vide injury report (Ex. P. 10) received following injuries: 1. Lacerated wound 2 x 1 cm Lt. Occipital of scalp. 2. C/o pain & tenderness on Rt. Knee joint. Ram Dayal (PW. 9) vide injury report (Ex. P. 11) received following injuries: 1. Bruise with Abrasion 4 x 3/4 lt. lower forarm 1/2 1/2 2. Incised wound 5 x 2 cm x bone deep Lt. arm latral to posterior aspect Direc above to down obliquely. 3. C/o pain Rt. lower chest lateral aspect r/e tenderness present. On X-ray fracture of left arm was found. Smt. Bhaikuntty (PW. 5) vide injury report (Ex. P. 12) received following injuries: 1. Incised wound 6 x 2cm x bone deep Lt. side to face eye to lower lip 2. Incised wound 12 x 2cm x bone deep to index tryca to lower palmor aspect cut at phlanx of lt. hand. 3. Incised wound 15 x 3cm x bone deep x 4 cm ribs cut lt. scapular region On X-ray dislocation of intrafalanx and fracture of proximal phlanx of ring finger were found. It is contended by learned counsel for the appellants that the incident occurred all of sudden on a very trifle matter. There was no unlawful assembly and there was no such intention to commit offence therefore the conviction under Sections 302, 307, 326 or 323 and with the aid of Section 149 IPC is bad in law. The deceased Jagveer intervened in the incident when quarrel was going on between ladies. Per contra, learned Public Prosecutor supported impugned judgment and took us to the material on record to demonstrate that the appellants were rightly convicted and sentenced. Having scanned the prosecution evidence we notice that cause behind the incident was distribution of eatables which were not fresh. After Pushpa accepted `bayana' from Nahni, Pushpa's mother in law Baikunthi (PW. 5) raised objections in loud voice, thereafter not words were exchanged between the ladies of two related families and they fought together. Jagveer (deceased) then intervened and appellant Kalicharan inflicted blows with `karant' to Jagveer that proved fatal. Injuries on the person of Baikunthi and Ram Dayal were also attributed to Kalicharan. Paras Ram @ Babloo (PW. 8) in his examination in chief deposed that he was given beating by Suresh and Gainda with lathis but in his cross examination in the statements of Baikunthi (PW. 5), Pushpa (PW. 6), Paras Ram @ Babloo (PW. 8) and Ram Dayal (PW. 9) in regard to allegations against appellant Kalicharan and we are of the view that it was Kalicharan who inflicted injuries on the person of Jagveer and Ram Dayal. On analysing the evidence adduced at the trial we find that there is no concrete evidence to show that the appellants Suresh, Man Singh, Gainda, Smt. Maya and Kumari Seema were the members of unlawful assembly which had any common object. Complainant party and the accused party were neighbour and from the behaviour and conduct of the appellants at or before the occurrence no inference can be drawn that they shared common object in inflicting injuries on the person of Jagveer.
(3.) WE also find that appellant Kalicharan acted with the knowledge that the death of Jagveer was likely to ensure, but there was no intention to cause death or an injury likely to cause death. As already noticed injuries were inflicted on back and jaw of the deceased and cause of death was asphyxia due to internal bleeding and lungs collapse. Since the incident occurred all of sudden and there was no premeditation on the part of appellant Kalicharan, the offence has to be brought down from the first category of murder to culpable homicide not amounting to murder and the appellant Kalicharan can be held guilty of the offence under Section 304 Part I IPC. WE however approve the conviction and sentence awarded to appellant Kalicharan under Sections 326 and 324 IPC. For these reasons we dispose of the instant appeal in following terms:- (i) We allow the appeal of appellants Suresh, Man Singh, Gainda, Smt. Maya and Kumari Seema and set aside their conviction under Sections 302/149, 307/149, 326/149, 324/149 and 323 IPC. We acquit all of them of the said charges. The appellants Suresh, Man Singh, Gainda, Smt. Maya and Kumari Seema are on bail they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Kali Charan and instead of Section 302 IPC we convict him under Section 304 Part I IPC and sentence him to suffer ten years rigorous imprisonment and fine of Rs. 500/-, in default to further suffer two months rigorous imprisonment. We confirm the sentence awarded to Kali Charan under Sections 326 and 324 IPC. He is however stands acquitted of the charge under Sections 307 and 148 IPC. Substantive sentences shall run concurrently. The period of detention during pendency of the trial shall be adjusted as per the provisions of Section 428 Cr. P. C. (iii) The impugned judgment stands modified as indicated above. .;