SHARMA, J. - (1.) OM Prakash, Murti Devi, Rajbala, Munni Devi, Saroj Devi and Leela Ram @ Murari, the appellants herein, were put to trial in Sessions Case No. 19/2002 (32/2002) before the learned Additional Sessions Judge (Fast Track) Alwar. Learned trial Judge vide judgment dated August 16, 2002 convicted and sentenced the appellants as under:- OM Prakash : u/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 5000/- in default to further suffer rigorous imprisonment for one year. u/s. 148 IPC: To suffer rigorous imprisonment for one and half year. u/s. 341/149 IPC: To suffer rigorous imprisonment for one month. Murti Devi, Rajbala, Munni Devi, Saroj Devi and Leela Ram @ Murari: u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- in default to further suffer rigorous imprisonment for six months. u/s. 148 IPC: Each to suffer rigorous imprisonment for one and half year. u/s. 341/149 IPC: Each to suffer rigorous imprisonment for one month. The substantive sentences were ordered to run concurrently.
(2.) ACCORDING to prosecution story on December 2, 2001 at 7. 30 PM informant Hanuman (PW. 5) submitted a written report (Ex. P. 2) stating therein that on the said day around 6 PM as soon as his father Shimbhu Dayal came from the field, Om Prakash, Saroj, Bala, Murti, Munni, Puran and Leela Ram who were following Shimbhu Dayal dragged him out of the house and gave beating to him with lathis. While Shimbhu Dayal was taken to the hospital he died on the way. On that report a case for the offences under Sections 147, 148, 149, 323, 341, 452 and 302 IPC was registered and investigation commenced. Dead body of Shimbhu Dayal was subjected to autopsy, statements of witnesses were recorded by the police, necessary memos were drawn and the appellants were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges under Sections 148, 452/149, 341/149, 302 alternatively 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard learned counsel for the parties and with their assistance weighted the material on record. Death of Shimbhu Dayal was undeniably homicidal in nature. As per post mortem report (Ex. P. 1) following antemortem injuries were found on the dead body:- Swelling 15 cm x 10 cm x 1. 5 cm left tempro occipital region of scalp. In the opinion of Dr. B. K. Bajaj (PW. 1), who conducted autopsy on the dead body, the cause of death was coma due to intra cranial hemorrhage following head injury which was sufficient to cause death in ordinary course of life. At this juncture it will be appropriate to consider the injuries sustained by the accused party. Appellant Munni vide injury report (Ex. D-4) received following injuries:- 1. Lacerated wound on Rt. side of forehead 2. 5 x 0. 7 x 0. 2 size irregular laceration. 2. Injury & pain of Rt. side of back with abrasion on abdominal wall Swelling Rt. side of 3 x 2 cm with no disclouration. Abrasion abdominal wall 4 x 0. 1 cm side pinkish red in colour. Appellant Om Prakash vide injury report (Ex. D. 5) also received one swelling 2 cm on right interparietal region of scalp with complaint of pain. Informant Hanuman (PW. 5) was not the eye witness of the occurrence. In his deposition he admitted that while he was at village Kolida, he received the message about the incident on telephone. Mithlesh (PW. 9) deposed that when her father in law Shimbhu Dayal came from the field the accused came to her house and demanded explanation from Shimbhu Dayal as to why he hurled abuses to their children. Shimbhu Dayal then told that he only threatened the children not to cross his field. The accused then dragged Shimbhu Dayal and gave beating with lathis. In the cross examination she stated that the accused inflicted 10-15 lathi blows on the person of Shimbhu Dayal. She did not see any injury on the person of accused Om Prakash and Munni Devi. Statement of Mithlesh gets corroboration from the testimony of Tofali (PW. 10), the wife of deceased Shimbhu Dayal. In the cross examination Tofali admitted that the accused and deceased were near relatives.
(3.) FACTUAL situation of the case is as under:- (i) Deceased sustained only one injury on the head and the said injury is attributed to appellant Om Prakash. (ii) Deceased and appellants were near relatives and incident occurred all of sudden. The appellants did not assemble with the intention to kill Shimbhu Dayal. (iii) The appellants Om Prakash and Munni Devi had sustained injuries in the same incident and the prosecution did not explain their injuries. Having analysed the evidence adduced at the trial we find that the deceased and appellants were near relatives and incident occurred all of sudden on a trifle matter. The deceased and Om Prakash fought freely and both sustained injuries. There was no unlawful assembly object of which was to kill Shimbhu Dayal. In the heat of passion Om Prakash inflicted one below with lathi on the head of Shimbhu Dayal and did not repeat the below. The blow inflicted by Om Prakash proved fatal. In these circumstances, we find ourselves unable to fasten vicarious criminal liability under Section 149 IPC on the appellants Murti Devi, Rajbala, Munni Devi, Saroj Devi and Leela Ram. Since the relation of deceased and appellants were cordinal prior to the incident and the incident occurred all of sudden and Om Prakash gave single blow and did not behave in cruel or unusual manner, it can be presumed that appellant Om Prakash had knowledge that the below given by him was likely to cause death of Shimbhu Dayal, even though he had no intention of causing death or such bodily injury as is likely to cause death, therefore the appellant. Om Prakash is guilty of the offence punishable under Part II of Section 304 IPC. ;