LODHA, J. - (1.) THESE are two connected matters arising out of the judgment dated 19th May, 1975 by the Sessions Judge Bikaner, who has convicted and sentenced the accused-appellants as under: - Convicted and Sentenced to 1. Bhoor Singh: - (i) U/s 302 IPC for the murder of Panneysinsh Life imprisonment (ii) U/s 302/34 IPC for the murder of Bhanwersingh Life imprisonment (iii) U/s 323/34 IPC for simple hurt to causing Pepsingh One year's R. I. and fine of Rs. 50/- in default 2 months' further R. I. 2. Narqyan Singh: - (i) U/s 302 IPC for the murder of Panneysingh Life imprisonment (ii) U/s 302/34 IPC for the murder of Bhanwersingh Life imprisonment (iii) U/s 323/34 IPC for causing simple hurt to Pepsingh One year's R. I. and fine of Rs. 50/- in default 2 months' further R. I. 3.Pratap Singh: - (i) U/s 302 IPC for the murder of Bhanwersingh Life imprisonment (ii) U/s 302/34 IPC for the murder of Panneysingh Life imprisonment (iii) U/s 323 IPC for causing simple hurt to Pepsingh One year's R. I. and fine of Rs. 50/- in default 2 months' further R. I. 4. Raghunath Singh: - (i) U/s 302 IPC for the murder of Bhanwersingh Life imprisonment (ii) U/s 302/34 IPC for the murder of Panneysingh Life imprisonment (iii) U/s 324 IPC for causing injury to Pepsingh One year's R. I. and fine of Rs. 50/- in default 2 months' further R. I.
(2.) APPEAL No. 589 of 1971 is a joint appeal by ail the four accused-appellants. Revision No. 618 of 1971 is by the State for enhancement of sentences awarded to the accused. We shall dispose of them together by this judgment. A trifling dispute about grazing of sheep and she-goats resulted in the incident in question in which two unfortunate persons Panney Singh and Bhanwer Singh lost their lives and PM/4 Pep Singh, their third brother, received injuries by sharp weapon as well as by blunt weapon. The field of the accused, who are all brothers, is situated contiguous to the field of PW/5 Jethusingh through which there is a way leading to the field of the deceased from the abadi of village Sova, Police Station Deshnoke. The field of the deceased is also contiguous to the field of Jethusingh on the western side. On 3rd December, 1970 the accused Raghunath Singh grazed a herd of sheep and she goats in the field of the deceased on account of which the grass standing in the field was damaged. The deceased Bhanwersingh thereupon objected and remonstrated to Raghunath Singh as to why he grazed sheep in his field. Raghunath Singh, however, took a defiant attitude and challenged Bhanwersingh that he would not stop grazing his sheep and Bhanwersingh may do whatever he liked. After some time he drove the herd of the sheep out of the field to his own field and there the matter ended for the time being. On the next day i e. 4th December, 1970, the day of occurrence, Bhanwershing was taking a cart loaded with grass from his field to the village. On the way he met the accused Bhoor Singh and Pratapsingh, who were coming from the village on a camel. There was exchange of hot words between them and may he, display of some violence also. However, the prosecution case is that Bhanwersingh behaved in a submissive manner and went to the village and complained to PW/l Pannlal, Sarpanch about the unwarranted act of the accused in grazing their sheep in his field and than becoming aggressive. Pannalal came to the spot just to verify the correctness of the complaint made by Bhanwersingh. In the afternoon at about 5 pm. when Bhanwersingh was coming back to his field from the village in his cart accompanied by his brother Panneysingh, the accused persons saw them from their field. Raghunathsingh was grazing sheep and Bhoorsingh, Pratapsingh and Narayansingh were working at the thrashing floor. While Bhanwersingh and Panneysingh were passing through Jethu-singh's field where there is a way leading to their field, all the four accused came and surrounded them. Bhoorsingh and Narayansingh were armed with 'kassies'. Reghunathsingh had an axe and Pratapsingh had a lathi. Bhanwersingh and Panneysingh tried to run away, but the assailants overtook them. Bhoorsingh and Narayan Singh took charge of Panneysingh and Raghunathsingh and Partapsingh obstructed Bhanwersingh. Bhoorsingh and Narayansingh started beating Panneysingh mercilessly with their 'kassies'. Raghunathsingh dealt a blow with an axe on the face of the deceased Bhanwersingh and Pratapsingh dealt a lathi blow to him. The hue and cry raised by Panneysingh and Bhanwersingh attracted the attention of PW/4 Pep-Singh who was working in his field. He rushed to the spot and so also Jethusingh who was in his field came there. Pepsingh tried to intervene but he too was beaten, by Raghunathsing and Pratapsingh. Jethusingh saw the whole incident but dare not intervene as he was afraid for his own life. Bhanwersingh died at the spot, whereas Panneysingh was taking his last breaths. Meanwhile PW/l Pannalal, Sarpanch, arrived at the spot. Pepsingh and Jethusingh took Panneysingh in a bullockcart to the Police Station, Deshnoke, but he died on the way. A First Information Report of the occurrence was lodged verbally by Pep Singh at Police Station, Deshnoke at 11. 00 p. m. the same night. The report was taken down by the Head Constable Bhairusingh under the supervision of the Station House Officer PW/9 Pratapsingh. It has been marked Ex. P/2 on the record. The examina ion of the injuries of Pepsingh and the post-mortem examination of the dead bodies of Panneysingh and Bhanwarsingh took place on 5th December, 1970. The. necessary investigation was conducted by PW/9 Pratapsingh on the spot. All the four accused were arrested on 6th December, 1970. The Station House Officer seized the blood-stained Dhoti of the accused Bhoorsingh which he was putting on his person at the time of his arrest (vide recovery memo Ex. P/14) He also seized the blood stained shirt of the accused which he was putting on at the time of his arrest (vide recovery memo Ex. P/15 ). An injury on the head of Raghunathsingh was noticed at the time of his arrest His under-wear, shirt and sweeter had also stains of blood and. therefore, the Station House Officer seized the same vide recovery memo Ex. P/13. While in police custody, the accused Bhoorsingh informed the Station House Officer that he had concealed the 'kassi' in the kitchen of his house and was prepared to get it recovered. The information memo is Ex. P/25 and the recovery memo of the 'kassi' recovered at the instance of the accused Bhoorsingh is Ex. P/!0. Accused Narayansingh also informed the Station House Officer that he had concealed his 'kassi' in the verandah of his house and was prepared to get it recovered. The information memo is Ex. P/26 and the recovery memo of his 'kassi' recovered at the instance of the accused Narayansingh is Ex. P/11. Accused Pratapsingh gave information that he had concealed his stick under the heap of grain in his field and was prepared to get it recovered. The information memo is Ex. P/27 and the recovery memo of the stick recovered at the instance of the accused Pratapsingh is Ex. P/9 Raghunathsingh also informed the Station House Officer that he had concealed his axe in his house and was prepared to get it recovered. The information memo is Ex. P/29 and the recovery memo of the axe recovered at the instance of the accused Raghunathsingh is Ex. P/12. The clothes as well as the weapons of offence suspected to be blood stained-were sent for chemical examination. Thus after completing the investigation the police prosecuted the accused under sections 302, 302/34, 307 and 307/34 IPC. Ultimately after trial, they were convicted and sentenced as mentioned above. We shall first take up the appeal by the convicts. Mr. Bhimraj learned counsel for the appellants has urged that the two eye witnesses namely, PW/4 Pepsingh and PW/5 Jethusingh are not reliable and the corroborative evidence regarding recovery of the clothes of the accused and the weapons of offenee is also infirm and open to serious challenge. He has contended that the case is not proved against any of the accused. In the alternative he has submitted that the court below committed an error of law in making the accused constructively liable under section 34 IPC, as they had no common intention to commit any offence much less the offence of murder. In this connection he has also urged that the learned Sessions Judge has not given due attention to the injuries found on the person of Raghunathsingh, which lead to a reasonable inference that whatever injuries were caused by the accused to the complainants party were caused by them in exercise of their right of private defence of person. Lastly, he has argued that in any view of the matter, none of the accused should have been sentenced under section 302 or 302 read with section 34 IPC. The direct evidence in the case consists of the statements of PW/4 Pepsingh and PW/5 Jethusingh. Both these witnesses, by and large, have supported the prosecution story in all the essential details. It is true that PW/4 Pepsingh is the brother of the deceased. But this relationship by itself is no good ground for taking his evidence on discount. The medical examination revealed the following injuries on his person : - 1. Incised wound vertical 2" x 1/4" x scalp deep on right parietal bone - Caused by sharp weapon. 2. Swelling 1/2"x 1/2" on left parietal laterally. It is simple-Caused by blunt weapon 3. Pain in right arm upper 1/3rd No external injury was visible. It was simple and caused by blunt weapon. 4. A lacerated wound 2-1/2 "xl-/l2"x skin deep, On right fore arm, middle 3rd postero medially. This injury was caused by blunt weapon. 5. A contusion red 3"x1/4"on back left side middle third. It was simple and caused by blunt weapon. PW/10 Dr. Satish Khincha has further stated that duration of the injuries was about 17 hours. These injuries were also x-rayed. The X-Ray report, Ex. P/33, however, shows that injuries No. 1 and 3 were simple. It is also undisputed that the field of Pepsingh where he is said to be present at the time of occurrence is contiguous to the field of Jethusingh where the occurrence took place. Again, it was Pepsingh who lodged the First Information Report and took Panneysingh to the Police Station in a serious condition in the cart. He reached the Police Station, Deshnoke at 11 p. m. in the night. The distance between the place of occurrence and the Police Station, Deshnoke is ten miles. All these facts namely, the presence of injuries on his person, the location of his field and the fact of lodging of the First Information Report by him promptly leave no manner of doubt that this witness was present at the place of occurrence when the occurrence took place. He have gone through his statement very carefully and are satisfied that he had witnessed the occurrence and had also been a victim of the assault made by the accused. He has clearly stated that Bhooorsingh and Narayansingh gave a number of blows to Panney Singh with the 'kassi' which they had in their hands and Pratapsingh and Raghunath Singh had beaten Bhanwersingh. He further states that when he tried to intervene, the accused Raghunath singh struck a blow with an axe from its sharp side on his head. On this point, he is corroborated by the medical evidence which shows that there was an injury by a sharp weapon on his head. He further states that Pratapsingh struck a blow with a lathi on his right wrist. On this paint also, he is corroborated by the medical evidence which shows that there was a lacerated wound on the right fore arm middle third postero medially. The statement of the witness that a number of blows with 'kassies' (which is a sharpe-dged weapon) were given by the two accused Bhoorsingh and Narayansingh to Panneysingh, is also corroborated by the post mortem report prepared by PW/7 Dr. Kishanlal, who has stated that the following injuries were found on the dead body of Panneysingh: - 1. Incised wounds 4"x 1" and 1/4" into bone deep on the anterior aspect of the scalp extending mid of fore-head and longitudinal and extending anterio posteriorily directed. Bone is exposed and there is injury mark on the bone, which is longitudinal 1" long 2. Incised wound 4"x1- 1/4 x bone deep on the leteral aspect of the scalp 4" above the left ear. And 1" away from the left eye. Directed anterio posteriorly. Bone shows depressed fracture of wings of sphenoid and temporal bone of left side of skull. Few bone pieces were missing. 3. 't' shaped lacerated wound was present on the middle of scalp 2" x2" and bone deep clotted blood was present. 4 Incised wound 2"x2" bone deep present on the middle of scalp. 1" anterior to the tale of head and is obliquely and horizontal. 5. Incised wound 4"x1/2" horizontally present on the occipital region exposing bone. There was clotted blood present on the base of the would. 6. Incised wound 2"x1/2" present on the right temporal region 3"above the right ear and extending the acterio posteriorily. 7. Incised wound 1/2"x2" present in scalp 6" above the left ear and is horizontal and bone deep and exposing bone. 8.Inched wound 2"x2" present on the left side of the fore-head horizontal 1/2" above the eye brow bone deep and exposing bone. 9.Incised wound 1"x2" horizontal present 1" behind the tale of head. Bone deep and exposing bone. 10 Incised wound 1/2"x2" was present 1" below the first wound. Bone deep and exposing bone. 11. Incised wound 1 "x1/2" present on the left occipital protuberance horizontal and exposing bone which also show the injury to the bone. 12. Incised wound 1/2"x2" was present on the lateral aspect of right upper arm 3 ' above the right elbow joint. 13. Incised wound 1 "x1/2" was present on the skin of right leg 1/2" deep exposing muscle and muscle piece was hanging out.
(3.) NOW, as regards Bhanwersingh, the witness states that Raghunathsingh struck Bhanwersingh on his mouth by the sharp side of the axe. However, it appears from the statement of Dr. Kishanlal and the post-mortem examination report of Bhanwersingh prepared by Dr. Kishanlal that there was no injury caused by a sharp weapon on the deed body of Bhanwersingh. Dr. Kishanlal found the following injuries on the body of Bhanwersingh - 1. Horizontal lacerated wounds 2"x1/2" on the inner aspect of upper lip including gums above the upper incisor teeth. Upper teeth became slightly loose 2. There were incomplete tearing of the base of gum and gums of right lower incisor and canina which became incompletely dislocated. There is longitudinal fracture of mandible. 3. There was abrasion 1/2"x. 2" longitudinally placed on the dorsum of left hand 4. Small rounded abrasion was present on the dorsum of middle finger of right hand. All the wounds and abrasions were anti-mortem in nature. BRUISES : 1. There were two bruises each was 3"x1/2" present on the lateral aspect of chest and front of chest which were oblique and parallel to each another. Which showed bluish red discolouration. 2. There is oblique and longitudinal bruises present on the left side of back which shows acchymodia and hasmotama. 3. There were two abrasions on the dorsum of left hand and thumb which were 1/4"x 2" with bluish red discolouration and horizontal. 4 There is contusion on the lateral side of cheek 1/2" below the left eye. 1"x1/2" shows bluish red discolouration 5. There was longitudinal bruise on the chin 1"x1/2". All the bruises and abrasions were antemor-tem in nature. In cross examination Dr. Kishanlal has stated that injuries No. 1 and 2 of Bhanwer Singh may have been caused by one stroke from the blunt side of an axe or by a lathi or they may be caused by two strokes of blunt weapon. Thus PW/4 Pepsingh is not corroborated by medical evidence in respect of the blow with an axe attributed by him to Raghunathsingh. But for this discrepancy, the effect of which we shall consider a little later while dealing with the case against Raghunathsingh, we do not find any other infirmity in his statement on the basis of which the witness may be discredited or may be considered as unreliable. Learned counsel has urged that that part of the story narrated by this witness hat on receiving 'kassi' blows Panneysingh sometimes stood up and then fell down as un natural. However, we are unable to accede to this submission. All that the witness has stated is that Panneysingh on occasions fell down to the ground and then stood up. There is nothing in the statement of the doctor to show that this was not possible. May be that, the victim could rise from the ground before the more serious injuries were inflicted on him. In our opinion, nothing turns upon this contention. The statement of PW/5 Jethusingh also appears to us to be quite convincing. His presence at the spot is very natural because the occurrence undoubtedly took place in his field, as the dead body of Bhanwarsingh was found there and so also blood stained earth. He has stated that there is a way passing through his field and he was in his field at the lime of occurrence. He also saw the four accused in his field. He further goes on to state that when Bhanwarsingh and Panneysingh were passing on the way which lies in his field, all the four accused came there and gave beating to the deceased as well as Pepsingh PW/4. He has given the same narration of the actual incident as given by PW/4 Pepsingh and nothing has been brought out in cross-examination to discredit his testimony. From the statements of PW/4 and PW/5 namely Pepsingh and Jethunngh, we are satisfied that Bhoorsingh and Narayansingh caused injuries to Panneysingh. We are also satisfied that Raghunathsingh and Pratapsingh caused injuries to Pepsingh. As regards the injury on the face of Bhanwarsingh ascribed to Raghunathsingh, Mr. Shisodiya, learned Public Prosecutor has contended that PW/4 Pepsingh committed a mistake in describing it, inasmuch as even though he may not have noticed accurately whether the injury was inflicted by the sharp side of the axe or by its wrong side, he has on his imagination stated that injury was inflicted by Raghunathsingh to Bhanwarsingh by the sharp side of the axe. Otherwise the evidence is consistent, argues Mr. Shisodiya, that an injury with the axe was inflicted by Raghunathsingh to Bhanwarsingh as stated by both the witnesses PW/4 Pepsingh and PW/5 Jethusingh. Mr. Shisodiya has submitted that regard being had to the facts and circumstances of the case, there is every likelihood that the injury must have been inflicted by Rasrhu-nathsingh by the wrong side of the axe It may be pointed out that Jethusingh is silent as to from which side of the axe the blow was given. The medical evidence shows that the injuries on the face of Bhanwarsingh which are a lacerated wound and a fracture of mandible, could have been caused only by a blunt weapon At this stage, we may point out that even in the F. i R. which is the first version of the prosecution it is mentioned that Raghunathsingh dralt a blow with an axe on the face of Bhanwarsingh from the sharp side. There is a further statement in the F,i R. that Raghunathsingh hit Pepsingh from the wrong side of the axe on his right shoulder. Thus it is clear that Pepsingh was quite careful in describing she blows With the axe and at one place he described it as from the sharp side of the axe and at another place from the wrong side of the axe. He was not making the statement casually Hence in face of the clear assertion by Pepsingh we consider it unsafe to presume that Raghunathsingh may have struck Bhanwarsingh from the wrong side of the axe particularly when this injury could be caused by a lathi also which the other assailant Pratapsingh is said to be wielding. We are, therefore, not inclined to hold Raghunathsingh responsible for injuries No. 1 and 2 found on the face of Bhanwarsingh which proved to be the cause of his death. ;