S. S. BYAS, J. - (1.) SINCE these two appeals- one by the State and the other by the convicted persons-are directed against one and the same judgment of the learned Sessions Judge, Balotra dated December 20, 1979, they were heard together and are decided by the single judgment. By the judgment aforesaid, the learned Sessions Judge acquitted the accused Sawai Singh and convicted and sentenced the four appellants as under:- S. No. Name of accused u/sec. Sentenced imposed 1. Sabal Singh 302,302/149 I. P. C. Imprisonment for life with a fine of Rs. 500/- in default of payment of fine to further undergo four years rigorous imprisonment. 148, IPC Two years rigouous imprisonment and a fine of Rs. 1000/- in default of the payment of fine to further undergo six months like imprisonment. 2.Sagat Singh 302/149, IPC Imprisonment for life and a fine of Rs. 3000/-, in default of the payment of fine to further undergo rigouous two year imprisonment. 147, IPC Rigouous imprisonment for one year and a fine of Rs. 500/- in default of the payment of fine to further undergo four months rigorous imprisonment. 3. Chandan Singh 302/149, IPC Imprisonment for life and a fine of Rs. 3000/- in default of the payment of fine to further undergo two years rigouous imprisonment. 147, IPC Rigouous imprisonment for one year and a fine of Rs. 500/-, on default of the payment of fine to further undergo four months like imprisonment. 4. Koopsingh 302/149, IPC Imprisonment for life and a fine of Rs. 3000/-, in default of the payment of fine to further undergo two years rigouous imprisonment. 147, IPC Rigouous imprisonment for one year and a fine of Rs. 500/- in default of the payment of fine to further undergo four months like imprisonment.
(2.) THE State has come-up in appeal against the acquittal of accused Sawai Singh while the accused persons have taken the appeal to challenge their convictions and sentences. At about 2. 45 A. M. on August 22, 1977, PW 6 Padam Singh appeared at Police Station, Chauhtan (district Barmer) and presented written report EX. P 11. It was stated therein that at the dinner time on the preceding day (August 21, 1977), PW 2 Suratsingh came to him at his house and informed him that his brother Bhanwar Singh had been assaulted and belaboured by the accused Sabalsingh, Sagatsingh, Sawai Singh, Balwantsingh, Koopsingh and Chandan-singh in his field situate nearly a mile away from village Doodwa. Accused Sabal Singh had a Kassi while the others had lathies. The beating resulted in some severe injuries to Bhanwarsingh and he was lying in injured condition on the spot. It was further stated therein that on receiving this information from Suratsingh (PW 2), he (Padamsingh) went with some persons to the spot and found his brother Bhanwarsingh lying in an injured condition. There were multiple injuries on his body from which blood was oozing. His clothes were drenched with blood. Bhanwar Singh had not died till then and was able to talk. On being asked, he told that he was assaulted and belaboured by the above six culprits. After some time, Bhanwar Singh passed away on the spot. The police registered a case under secs. 302, 147, 148 and 149 of the Penal Code. The usual investigation ensued. The investigating officer Uttam Singh (PW 17) arrived on the spot at about 9. 15 A. M. on August 22, 1977. He inspected the site and prepared the inquest report of the victim's deadbody. Blood found on the spot was lifted and sealed. The autopsy of the victim's deadbody was conducted at about 1. 00 P. M. on August 22, 1977 by PW 10 Dr. Jugal Kishore, then Medical Officer Incharge, Primary Health Centre, Chauhtan. He noticed the following injuries on the victim's deadbody:- External: (1) Incised wound 3/4" x 1/2" x 1/2" lateral aspect of left arm. (2) Incised wound 3/4" x 1/2" x 1/3" left post auricular region. (3) Incised wound 2-3/4" x 3/4" x 1/2" occipital region. (4) Abrasion 1" x 1/4" left shoulder posterior aspect. (5) Bruise \" x 5" posterior aspect lateral aspect of left arm. (6) Bruise 4" x 4-1/3" laters aspect of left thigh. (7) Bruise 4" x 2" lateral aspect of chest left side. (8) Multiple abrasion V to 1" x 1/2\" left lower limb. Internal: (1) Fissured fracture of occipital bone. (2) Fracture of 10th rib. In the opinion of Dr. Jugal Kishore, the cause of death of Bhanwar Singh was shock which was due to the injuries over head and chest, resulting in fracture of skull bone and rib. The post-mortem examination report issued by him is EXP. 14 The accused persons were arrested and in consequence of the disclosure statements made by them, Kassi and Lathies were recovered. The blood-stained clothes of the deceased were also seized and sealed. On the completion of investigation, the police submitted a challan in the court of Munsif & Judicial Magistrate, Barmer, who in his turn committed the case for trial to the Court of Sessions Judge, Balotra. The learned Sessions Judge framed charges under sections 302, 302/149, 147 and 148, IPC against them, to which they pleaded not guilty and demanded the trial. In support of its case, the prosecution examined 17 witnesses and filed some documents. In defence, the accused examined one witness. During trial, the accused Balwantsingh expired On the conclusion of trial, the Sessions Judge found no incriminating material against accused Sawai Singh to connect him with the commission of the offence. He was consequently acquitted. The charges against the remaining four accused persons were taken as duly proved. They were consequently convicted and sentenced as mentioned at the very out-set. We have heard Mr. S. R. Singhi, learned counsel for the accused-appellants and the acquitted accused Sawai Singh and Mr. Niyazuddin Khan learned Public Prosecutor for the State. Mr. Singhi, learned counsel for the accused persons did not challenge the incident nor the part played by each of the convicted persons in belabouring the deceased. The learned counsel has confined his contentions only to the nature of offence made out. It was contended by him that no offence under section 302, IPC is made out. The deceased received eight injuries, out of which as many as six were minor and insignificant and were on the non-vital parts of the body. Only one incised wound was found on the occipital region and one bruise on the left side of the chest. It was argued that Dr. Jugalkishore did not state that injuries No. 3 and 7 or any of these two were sufficient in the ordinary course of nature to clause the death. According to Dr. Jugal Kishore, death could be caused by any of these two injuries. The other injuries were not even collectively sufficient to cause death. It was further contended that the case is not covered by any of the four Clauses of section 300, IPC. The facts and circumstances show that the accused persons had no intention to cause the death of the deceased. The genesis of the occurrence has not been disclosed by either of the two eye witnesses : PW 2 Suratsingh and PW 7 Sukhsingh. Accused Sabalsingh was medically examined by Dr. Jugalkishore on August 23, 1977 and five injuries were found on his person, as mentioned in injury-report EX. P. 15. The contention of Mr. Singhi is that in view of all these circumstances, it can be easily inferred that the accused persons went only to chastise the deceased and never intended to kill him. The offence made out, therefore, is that under section 325, IPC.
(3.) COUNTERING these contentions, the learned Public Prosecutor submitted that the culprits were six in number. One of them had a Kassi while the others had Lathies. They made a joint assault on the deceased and belaboured him. Two of the injuries were inflicted on the vital parts of the body of the deceased. The case is. therefore, covered by Clause Secondly of Section 3 0, IPC because the act was done with the intention of causing such bodily injury as the offenders new to be likely to cause the death of the deceased. We have bestowed our thoughtful consideration to the respective submissions made at the bar. The prosecution has examined two eye witnesses : PW 2 Suratsingh and PW 7 Sukhsingh. PW 7 Sukhsingh did not support the prosecution and adopted an hostile attitude. According to him. he went to the spot on hearing the cries. When he arrived on the spot, he found the deceased Bhanwarsingh lying in the field with injuries on his body. He did not see the assailants who had inflicted the injuries on the deceased. PW 2 Suratsingh stated that on hearing the out-cries, he rushed to the spot. On reaching there, he found the accused persons beating the deceased Bhanwarsingh. Accused Sabalsingh had a Kassi while the others had lathies. He did not state as to how the occurrence started. There is, thus, no evidence as to the genesis of the occurrence. Pw 10 Dr. Jugalkishore, who conducted the post-mortem examination of the dead body of Bhanwar Singh simply deposed that injuries No. 3 and 7 were dangerous and could cause death. He further stated that each of these two injuries could cause death. No specific question was put to him in his examination-in-chief that injuries No. 3 and 7 collectively or individually were sufficient in the ordinary course of nature to cause death. It is the duty of the prosecution to seek a definite opinion from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause the death, in order to bring the case within Clause 3rdly of section 300, IPC. It cannot be left to imagination or conjecture that because the death has resulted from some injuries, the injuries should be taken to be sufficient in the ordinary course of nature to cause death. In Kachawaha V. State of Rajasthan (1) decided by us on November 20, 1984, we expressed the view that simply because the death is the result of a particular injury, it cannot be said that the particular injury was sufficient in the ordinary course of nature to cause death. The case, therefore, does not fall within the ambit of Clause 3rdly of Section 300, IPC. ;