ARORA, J. - (1.) THIS appeal is directed against the judgment dated 22. 12. 89, passed by the Additional Sessions Judge No. l, Udaipur, by which the learned Additional Sessions Judge convicted the appellants for the offences under Sections 302/149 and 148 I. P. C. and sentenced each of them to undergo imprisonment for life and a fine of Rs. 500/- each and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under Section 302 IPC and one year's rigorous imprisonment and a fine of Rs. 250/- each and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 148 IPC.
(2.) THE appellants, alongwith co-accused Galba, were tried by the learned Additional Sessions Judge No. l, Udaipur, for committing the murder of Joga S/o Bhura in the field after forming an unlawful assembly and by inflicting injuries to him by Kulharis and Lathis. THE case of the prosecution is that on 20. 8. 86, in the evening, deceased Joga was in his field. All the six accused reached in the field of Joga. Bhura's wife Smt. Hankli (the mother of the deceased) was grazing her she-goats. All the accused inflicted injuries to Joga by Kulharis and Lathis. Joga raised alarm. Hearing his alarm, Bhura, his son Mansa and daughter Shanti came at the place of the incident. Mansa tried to rescue his brother Joga. Appellant Barsa inflicted injury to Mansa. Bhura's wife Smt. Hankli, who was grazing the she-goats, raised alarm, which attracted Bhoota, Roda and Dewa, who came there running. On seeing these persons coming, the accused ran away. Joga was brought to the house where he succumbed to the injuries. THE prosecution, in support of its case, examined thirteen witnesses. THE appellants did not examine any evidence in their defence. THE learned trial Court, after trial, convicted and sentenced the accused-appellants as stated above. However, the learned trial Court acquitted accused Galba of the aforesaid offences by giving him the benefit of doubt. The prosecution case rests upon the statements of six eye witnesses, viz. , PW 5 Smt. Hankli-the mother, PW 6 Roda - the brother-in-law, PW 7 Mansha-the brother of the accused, as well as PW 10 Bhota, PW 11 Smt. Jomli-the widow of the deceased and PW 12 Shanti-the sister of the deceased. This evidence of the eye witnesses is sought to be corroborated by the evidence of PW 4 Bhura-the father of the deceased, who lodged the FIR and also from the medical evidence of PW 9 Dr. Surendra Singh Zhala, who was the Medical Officer in Government Dispensary, Sayra, and who conducted the autopsy on the dead body of Joga as well as from the evidence of PW 1 Kalu Singh and PW 3 Babu Mohammed, who are the two Motbir witnesses. PW 2 Bhawani Shanker was the Police Constable posted at Police Station, Ogna, who took the eight sealed packets of the incriminating articles on 23. 9. 86 for F. S. L. examination to the State Forensic Science Laboratory, Jaipur. PW 13 Badami Lal was the S. H. O. , who investigated the matter and presented the challan. Pw 1 Kalu Singh and Pw 3 Babu Mohammed, the two Motbir witnesses to the recoveries and the preparation of the site plan etc. , have not supported the prosecution case and have been declared hostile Pw 10 Bhoota, who was one of the eye witnesses, has, also, not supported the prosecution case and has been declared hostile. Pw 5 Smt. Hankli-the mother of deceased Joga has stated that it was the evening time and deceased Joga was sitting on a rock. The accused were, also, there. Accused Hamta, Barsa and Galba were armed with Kulharis while accused Lakhma, Neta and Ganiya were armed with Lathis. They all gave beatings to Joga by Kulharis and Lathis. Mansa was, also, given beatings by the accused. Shanti and Jomli were, also, present there. Roda was, also, given beatings. After receiving the injuries, Joga fell down on the ground and then the accused ran away. Joga was thereafter taken to the village on a cot. The first blow was inflicted to Joga by appellant Hamta on his neck by the Kulhari and the other accused, also, inflicted injuries to Joga with Kulharis and Lathis. She asked them not to give beatings to Joga but they paid no heed to her request. Bhura thereafter went to his house. Pw 6 Roda has stated that though he had seen the accused inflicting injuries by Kulharis and Lathis to Joga and out of them three were armed with Lathis and three with Kulharis but he cannot say who were armed with Lathis and who with Kulharis and, also, to the effect that who inflicted injuries to whom. He tried to rescue Joga. He had seen the occurrence from a distance of two-three paces. Mansha was, also, given beatings by the accused. The accused, after inflicting injuries, ran away. Joga was then brought to the house. Pw 7 Mansha-the another eye witness to the occurrence and the brother of the deceased has stated that in the morning of the day of the incident, accused Hamta came to his house and enquired about Joga and he informed him that Joga had gone to the field. Thereafter accused Hamta asked him to accompany and he went with the! accused. Accused Hamta inflicted Kulhari injury on the neck of Joga with the Kulhari and continued to give beatings to Joga. Accused Lakhma, Neta, Barsa, Ganiya and Galba, who were armed with Kulharis and Lathis, also, gave beatings to Joga. Accused Barsa inflicted injury on his (the witness) head by the reverse side of the Kulhari. The other accused, also, inflicted injuries by Lathi. He showed his ignorance regarding the cause of giving beatings by the accused to Joga but, however, he had admitted that the bone of contention was the alleged illicit relations of deceased Joga with the wife of Chatra and on that account a sum of Rs. 750 was paid on account of compromise arrived at between the parties. Joga, after being inflicted injuries by the accused, was taken to the village on a cot. Pw 11 Mst. Jomli-the widow of the deceased has stated that on the day of the occurrence, she was in the field. Her husband was sitting on a rock near a Bur tree. Smt. Hankli was grazing her she-goats. All other members of the family were, also, in the house which is situated in the field itself. The accused Hamta, Lakhma, Neta, Barsa, Ganiya and Galba came near the rock and gave beatings to her husband. Netiya, Hamta and Barsa had Kulhari while the other accused had Lathis. They gave beatings to Joga by Lathis and Kulharis. When she tried to intervene, the accused threatened her of the dire consequences. Hankli, Shanti and Roda, also, tried to rescue Joga and in this process Mansha, also, received injuries, which were inflicted by accused Barsa and Hamta with Kulharis. They raised alarm, which attracted Ratna, Jota and Bhoota. The accused thereafter ran away. Joga was thereafter brought to the village on a cot and after reaching home, he breathed his last. Pw 12 Shanti has, also, stated that at the time when the incident took place, she was in the field. Joga was grazing his oxen. The accused came there armed with lathis and Kulharis and accused Hamta inflicted injury on the neck of Joga by the Kulhari. Accused Barsa inflicted injury on his hand. Netiya inflicted injury by the Kulhari on his other hand. All the other accused inflicted injuries to Joga by Lathis and Kulhari. When he tried to rescue Joga, the accused tried to inflict injuries to her, also. They raised alarm, which attracted Roda, Mansha, Sankli etc. and they tried to rescue Joga. The accused, after inflicting injuries, ran away. Accused Hamta inflicted two injuries by Kulhari to Mansha. Joga was thereafter taken to the village. A lengthy cross-examination has been conducted On these witnesses but their testimony remained unshaken and nothing could be elicited from their cross-examination which could make their testimony unreliable. After going-through the evidence of these eye witnesses, we are of the opinion that these witnesses it is clear that it was accused Hamta who inflicted injury on the left side of the neck of Joga by the Kulhari. PW 9 Dr. Surendra Singh Zhala has stated that the deceased received in all eight injuries, which were caused by sharp and blunt weapons. Injuries No. 1,2,4,6 and 7 were incised wounds while injuries No. 3 and 5 were bruises and injury No. 8 was an abrasion. The accused were' six in number and in all eight injuries were inflicted to deceased Joga by the accused. There were strained relations of the complainant party with the accused on account of the illicit relations of deceased Joga with the wife of Chatra and, therefore, it appears that with a view to teach a lesson or to give thrashing to the deceased the accused formed an unlawful assembly so that the deceased may not indulge in such an act. The accused were six in number and only eight injuries were inflicted by them to the deceased. From the attending circumstances it can be inferred that the accused party had no intention to kill Joga and the common object of the unlawful assembly was to give thrashing to the deceased and to cause him grievous injuries. The appellants other than appellant Hamta can, therefore, be convicted for the offence under Section 326 read with Section 149, I. P. C. and not for the offence under Section 302/149 IPC. But so far as appellant Hamta is concerned, he inflicted injury by Kulhari on the neck of deceased Joga which proved fatal. He intended to inflict that particular injury which was sufficient in the ordinary course of nature to cause the death and, therefore, the case against him falls squarely within the purview of Clause -Thirdly of Section 300 and as such he is convicted for the offence under Section 302 IPC. The prosecution has, therefore, been able to prove the case against accused-appellant Hamta beyond reasonable manner of doubt and he has rightly been convicted and sentenced for the offence under Section 302 IPC. But so far as the other appellants, viz. , Lakhma, Neta, Barsa and Ganiya are concerned, they had only common object of giving thrashing and causing grievous injuries by sharp weapon to the deceased, and, therefore, they deserve to be acquitted of the offence under Section 302/149 IPC as they had no intention to kill deceased Joga; but they are convicted for the offence under Section 326/149 IPC.
(3.) IN the result, the appeal, filed by the appellants, is partly allowed. The conviction of appellant Hamta for the offence under Section 302/149 IPC is altered to Section 302 IPC simplicitor and he is sentenced to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergo three month's rigorous imprisonment. The conviction and sentence of the accused-appellant Hamta for the offence under Section 148 IPC, awarded by the learned trial Court, are maintained. Both the sentences shall run concurrently. Appellants Lakhma, Neta, Barsa and Ganiya are acquitted of the offence under Section 302/149 IPC. but they are convicted for the offence under Section 326/149 IPC and each of them is sentenced to five years' rigorous imprisonment and a fine of Rs! 500/- and in default of payment of fine each of them to further undergo three months' rigorous imprisonment. Their conviction and sentence for the offence under Section 148 IPC are maintained. Both the sentences shall run concurrently. (8) Appellants Lakhma, Neta, Barsa and Ganiya are in jail since 22. 12. 89. They have served out the sentence imposed against them. They shall be released forthwith if they are not required in any other case. .;