CHAUHAN, J. - (1.) THE three appellants. Mangi Lal (A-1 ). Rampal (A-2) and Madan Lal (A-3) have filed two different appeals challenging the same impugned judgment dated 1. 10. 2001 passed by the Additional District and Sessions Judge (Fast Track) Ajmer whereby the Learned Trial Court has convicted Mangi Lal of offence under Section 302 IPC and has sentenced him to Life Imprisonment and imposed a fine of Rs. 1000/- and to further undergo a sentence of three months of simple imprisonment in default thereof. THE learned Trial Court has also convicted Rampal and Madan Lal for offence under Section 324 IPC and has sentenced them to three years of R. I. and imposed a fine of Rs. 1000/- each and to further undergo a sentence of three months of simple imprisonment in default thereof. Since the two appeals arise out of the same judgment, they are being decided by this common judgment.
(2.) THE brief facts of the case are that on 1. 2. 98, the police recorded the statement of the injured, Bhagchand (P. W. 2) while he was admitted in the Jawahar Lal Nehru Hospital at Ajmer. In the statement, Bhagchand claimed that "he and his family members are agriculturist by profession. THEir farm is near the "danga" which is next to the land belonging to the government. On the vacant land, he and his family were piling up wood for the purpose of burning it, but his neighbor, Mangi Lal objected to it. In the morning, he and his father, Suraj Karan, carried some wood on the cart to be emptied at the vacant land. However, when they reached the place, Mangi Lal, his three boys, his wife, the wives of two of his children, and his daughter were waiting for them. THEy were armed with "kulhari" (axe) and "lathi" (wooden sticks ). THE moment they reached the place, the accused persons mercilessly assaulted his father and him. When his brother. Kailash, rushed to their rescue, the accused persons also assaulted him. THE incident occurred around 2:00 PM. After the assault, they all ran away. He has lost his earnings and his watch. If they have carried them, he doesn't know. Prabhu's son Dilip and Ugma's son Ram Niwas have carried the injured to the hospital. He is badly injured in the head. " On the basis of the said statement, the police chalked out a formal FIR, FIR No. 15/98, for offences under Sections 147, 307, 341, 323, 34 IPC. However, with the death of Suraj Karan, the offence under Section 302 IPC was added and the investigation commenced. The police submitted a charge sheet against eight persons for the above-mentioned offences. In order to prove its case, the Prosecution examined ten witnesses and submitted forty- four documents. The defense did not examine any witness, but did submit two documents. After examining the oral and documentary evidence, while the Learned Trial Court acquitted five persons, it convicted and sentenced the three appellants as aforementioned. Mr. Jai Singh Rathore, the learned counsel for the appellants, raised a number of contentions before us. Firstly, although the incident is alleged to have taken place on 1. 2. 98, the parcha bayan was not recorded till a day later, i. e. , on 2. 2. 98. The prosecution has not offered any explanation for the inordinate delay of one day. Secondly, similarly, the statements of the alleged injured persons were `recorded after an inordinate delay. Thirdly, Bhagchand's statement is absolutely vague. He has not assigned any specific injury to any of the individual accused persons. He has made a general statement that the appellants assaulted the deceased. Fourthly, although the witnesses have claimed that the appellants had assaulted the deceased with sharp edged weapon on the body of the deceased. Hence, obviously, there is contradiction between the ocular and the medical evidence. Fifthly, the recoveries of the weapons are unreliable. Sixthly, the appellants could not have caused the injuries from the weapons recovered from them. Lastly, the prosecution has produced only interested witnesses. These witnesses cannot be relied upon for convicting the appellants. On the other hand, the learned Public Prosecutor, Mr. R. P. Kuldeep has argued that the case is based on direct evidence. The presence of the injured witness cannot be doubted. Their evidence is consistent and above reproach. The medical evidence further corroborates their testimonies. Hence, the prosecution has proved its case beyond a shadow of doubt. He has, thus, supported the impugned judgment. We have heard both the counsels for the parties, critically examined the record, considered the evidence and perused the impugned judgment.
(3.) ACCORDING to P. W. 10, Dr. R. K. Mathur, when he examined the deceased prior to his death, he noticed five wounds: a lacerated wound vertically placed on the forehead 4 cm x 1 cm scalp deep, bleeding. Haematoma 6 cm x 4 cm in the left temporal-parietal region. Haematoma 7 cm x 5 cm on the right parietal region. Contused swelling on the right arm and lastly contused swelling on the right forearm. ACCORDING to Injury Report (Ex. P. 43), all these injuries were caused by blunt weapon. The existence of these injuries has also been corroborated by P. W. 1, Dr. P. K. Saraswat, who conducted the post-mortem on the deceased on 2. 2. 98. There were three injuries on the head. However, according to him, these three injuries could be caused by a single impact. The cause of death was due to coma as a result of injuries on the head. Clearly, the death was homicidal. Although, Bhag Chand (P. W. 2) does claim that the deceased was hit by a sharp edged weapon, P. W. 3,kailash, clearly states in his cross-examination that Mangi Lal hit the deceased on his head with a "lathi". Kailash is, therefore, corroborated by P. W. 10, Dr. R. K. Mathur, by the Injury Report of the deceased (Ex. P. 43), by P. W. 1, Dr. Saraswat and by Post-Mortem Report (Ex. P. 1 ). Thus, Suraj Karan had died due to a single injury caused by Mangi Lal on his head. According to the prosecution, the land of the complainant party and of the accused persons are adjoining each other. The quarrel between the two parties had ensued because the accused persons had objected to the complainant party's dumping the wood near their land. At the spur of the moment in a sudden heat, Mangi Lal had hit the deceased only once on his head with a blunt weapon. Therefore, Mangi Lal did not have the intention to cause the death of Suraj Karan. However, he can be attributed with the knowledge that by his act he is likely to cause the death of Suraj Karan. In case of Tholan vs. State of Tamil Nadu (1984) 2 SCC 133, the accused had inflicted a single knife on the chest of the deceased at the spur of the moment. The Hon'ble Supreme Court had held that although he may not have the requisite intention under Section 300 IPC, he can be attributed with the knowledge that he was likely to cause injury, which was likely to cause death. Hence, the Apex Court converted the conviction from one under Section 302 IPC to one under Section 304 Part-II IPC and sentenced him to five years rigorous imprisonment. Taking a cue from the said judgment, we are of the opinion that Mangi Lal's conviction under Section 302 is unsustainable. As far as Ram Pal (A-2) and Madan Lal (A-3) are concerned, Bhag Chand (P. W. 2) clearly states that these two appellants had hit him over the head with a "kulhari" (axe ). His statement is further corroborated by the testimony of P. W. 3, Kailash and P. W. 8, Gajanand. P. W. 10, Dr. R. K. Mathur further states that Bhag Chand had suffered two sharp edged injuries on his head. According to Investigating Officer, Jabbar Singh (P. W. 7) Kulharies were recovered at the instance of these two appellants. Hence, these two appellants have been rightly convicted for offence under Section 324 IPC. However, we deem it proper to extend the benefit of Probation of Offenders Act, 1958 to these two appellants. ;