SHARMA, J. - (1.) BAHGIRATH, Sultan, Jhabarmal and Baluram, the appellants herein, were put to trail before the learned Additional Sessions Judge (Fast Track) Jaipur District, Jaipur, who vide judgment dated August 20, 2001 convicted and sentenced them as under:- u/s. 452 IPC: Each to suffer rigorous imprisonment for two years and fine Rs. 500, in default to further suffer fifteen days simple imprisonment. u/s. 302/34 IPC: Each to suffer imprisonment for life and fine Rs. 2000, in default to further suffer two months simple imprisonment. Sentences were ordered to run concurrently.
(2.) IT is the prosecution case that Bahgirath Mal Bunkar (PW. 4) on August 18, 1999 submitted a written report (Ex. P.-1) to the Police Station Govindgarh stating therein that on the said day around 5 PM some altercations took place between him and his neighbour. Thereafter around 9 PM Dula Ram, Ram Narayan, Bahgirath, Sanwar Mal, Ganesh, Nanda Ram, Baluram, Hanuman, Sultan, Prabhu Dayal, Jhabarmal came to his house and gave beating with lathis to three persons, including Bahgirath and Mohanlal, who were present at the house. Mohanlal who sustained injury on his head was admitted to the hospital at Govindgarh. On that report a case under Sections 147, 148, 452 and 323 IPC was registered and investigation commenced. In the course of investigation Mohanlal succumbed to his injuries and Sections 302 IPC was added. 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) Jaipur District Jaipur. Charges under Sections 452 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 26 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 given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Mohan Lal vide injury report (Ex. P. 12) received following injuries:- 1. Whole scalp censed from dynaplast with drange tuber attach occipital region 2. Parallel bruise of 8 cm long with gap of 0. 75 cm reddish scar in colour placed over lateral side of lower 1/3 of (L) thigh. 3. Abrasion 1 x 1 cm x 1/2 x 1/2 tip of (L) shoulder joint with reddish soft scalp. 4. Bruise of size 2 cm x 1/2 cm reddish over front of (L) side chest upper part. After the death of Mohan Lal, his dead body was subjected to autopsy by Dr. M. T. Qureshi (PW. 16) and as per postmortem report (Ex. P. 14) the cause of death was coma as a result of ante mortem injuries to skull and brain, which were sufficient to cause death in the ordinary course of nature. The star witness of the prosecution Bahgirath (PW. 4) in his deposition stated that on August 17, 1999 around 9 PM when he Pooran, Mamata, and Amri were gossiping in the chowk Bahgirath, Sultan, Jhabarmal and Balu came and hurled abuses. Bahgirath was having lathi, Sultan was having Bie, Jhabar was having rod and Balu was armed with lathi. When Bahgirath made attempt to inflict lathi blow Amri caught hold of Lathi but she was pushed down. Hearing hue and cry, Mohan and brother of informant, came over there and asked the assailants not to hurl abuses but all the four assailants gave blows with lathi and rod on the head of Mohan as a result of which he fell down and became unconscious and ultimately died. Having analysed the evidence adduced at the trial, we are of the view that the appellants have not committed house trespass. Dr. M. T. Qureshi (PW. 16) in his deposition stated that the cause of death was ante mortem injuries to skull and brain which were sufficient in the ordinary course of nature to cause death. It appears that there were three injuries on the head but Dr. Qureshi did not say that as to which injury was responsible for the death of the deceased. It is also not borne out from the record that whether the injuries sustained by the deceased cummulatively were sufficient to cause death. Since each appellant cause one blow on the head of the deceased and fatal injury was not attributed to any one, charge under section 302/34 IPC is not established against them. In a similar situation, the Apex Court in Amrik Singh vs. State of Punjab (1993 Cr. L. J. 2857) indicated that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased ). Autopsy Surgeon fond a lacerated wound on the scalp and incised on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore Kewal Singh was convicted under Section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Apex Court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment.
(3.) THE prosecution thus is not able to establish the charges under Sections 452 and 302/34 IPC against the appellants beyond reasonable doubt. At the most they can be convicted under Section 325/34 IPC. For these reasons, we dispose of the instant appeal of the appellants in the following terms:- (i) Appeal of appellants Bahgirath, Sultan, Jhabarmal and Baluram is partly allowed and instead of Section 302/34 we convict each of the appellants under Section 325/34 and sentence each of them to suffer rigorous imprisonment for two years and fine of Rs. 500, in default to further suffer one month rigorous imprisonment. Since appellants Sultan, Jhabarmal and Baluram have remained in custody from 22. 8. 99 till 11. 2. 2002 and already suffered imprisonment for a period of two years and five months and they are on bail, they need not surrender and their bail bonds stand discharged. (ii) Appellant Bahgirath who has been in continuous custody since August 22, 1999 and suffered confinement for a period of six years and seven months, shall be set at liberty forthwith if not required to be detained in any other case. (iii) Appellant Bahgirath, Sultan, Jhabarmal and Baluram are however acquitted of the charge under Section 452 IPC. (iv) The impugned judgment stands modified as indicated above. _________ .;