SHARMA, J. - (1.) IN this appeal the appellants, five in number, have impugned the judgment dated February 27, 2003 of the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu whereby the appellants were convicted and sentenced as under:- Dharampal : U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 200/-, in default to further suffer simple imprisonment for seven days. U/s. 148 IPC : To suffer simple imprisonment for two years and fine of Rs. 200/-, in default to further suffer simple imprisonment for seven days. Ramswaroop, Khushiram, Ramotar @ Ramavtar and Hanuman : U/s. 302/149 IPC : Each to suffer imprisonment for life and fine of Rs. 200/-, in default to further suffer simple imprisonment for seven days. U/s. 148 IPC : Each to suffer simple imprisonment for two years and fine of Rs. 200/-, in default to further suffer simple imprisonment for seven days. The substantive sentences were ordered to run concurrently.
(2.) THE prelude to the present occurrence appears to be an incident in August 9, 2000 when at 11 PM appellant Dharampal inflicted axe-blow on the person of Karan Singh (now deceased) who was sleeping on his cot outside his house. Karan Singh was removed to the hospital where his parcha bayan was recorded and a case under sections 148, 148, 149, 323 and 307 IPC was registered and investigation commenced. During the course of investigation Karan Singh succumbed to his injuries Section 302 IPC came to be added. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu. Charges under sections 148/149, 302 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. the prosecution in support of its case examined as many as 14 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Two witness in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Prior to death of Karan Singh injuries sustained by him was examined vide injury report (Ex. P/45a), which reads as under:- 1. Incised wound (bleeding) Lyderation is coming out of wound. 3" x 1. 5" x abdominal cavity deep right posterior lateral part. Dr. Surendra Kumar Sharma (PW-14) performed autopsy on the dead body and drew post-mortem report (Ex. P/54 ). The cause of death according to Dr. Surendra Kumar Sharma was coma due to shock & hemorrhage due to injuries inflicted on body. Having pondered over the submissions and carefully weighed the material on record we notice that after the incident injured Karan Singh was taken to the police station Khetri by his brothers Neki Ram (PW-1) and Ram Niwas (PW-5) but no report of the incident was lodged, Ram Singh, the Investigating Officer, when asked Karan Singh about the details of the incident, Karan Singh informed that Prahlad-wallas had given beating to him. Strangely nothing was taken down even in daily Rojnamcha at the police station Khetri. The prosecution case is found on the parcha bayan (Ex. P/46a) of Karan Singh, which was recorded by Ram Singh, IO (PW-13) at 1. 30 AM on August 9, 2000. No independent witness was present at the time of recording of parcha bayan, even doctor's presence was not required by the IO. Salient features appears from the record are as under:- (i) Jagmal (PW-3) an independent witness examined by the prosecution branded Neki Ram (PW-1), Ram Niwas (PW-5) and Mahesh (PW-2) as quarrelsome persons and deposed that police was in search of them since a day before the incident, they opened fire from their Haveli and thereafter scaled the hill and remained at the hill for about for 7-8 days; (ii) Dr. Vinay Kumar Godara (PW-11) in his cross- examination stated that Parcha bayan of Karan Singh (deceased) was not recorded in his presence and no attempt was made either by him or by SHO to call the Magistrate for recording the parcha bayan; (iii) Dr. Surendra Kumar Sharma (PW-1) deposed that the injury sustained by deceased was caused by pointed weapon and it could not be cause by axe. According to him the injury could be caused even by broken ribs; (iv) Ram Singh, IO (PW-13) admitted that Karan Singh along with Ram Niwas and Nekiram came to the police station where Karan Singh told him that he was given beating by `prahlad-wallas'. He further stated that when he visited the place of occurrence, he did not find light there. (v) Nekiram (PW-1) and Ram Niwas (PW-5) were present at the hospital when Ram Singh recorded parcha bayan.
(3.) HAVING analysed the evidence adduced at the trial by the yardstick of probabilities, its intrinsic worth and animus of witnesses we find that the prosecution is only able to establish beyond reasonable doubt that appellant Dharampal came armed with axe and could only visualise in the darkness that somebody was sleeping on the cot. Without ascertaining as to who was the person, Dharampal inflicted solitary blow with axe and fled away. the evidence on record relating to the occurrence cannot be taken to provide any safe basis for coming to a conclusion that the appellants formed themselves into an unlawful assembly with a common object, as envisaged in section 141. There is absolutely no evidence whatsoever to attribute any common object or such a thing having activated all of them to join in furtherance of the object either before arrival of during the course of occurrence as such. Hence the charge under Section 148 or 149 IPC has to fail and conviction thereunder is liable to be and shall stand set aside. It also appears from the record that after Neki Ram, Ram Niwas and Mahesh opened fire at villagers the situation flared up suddenly and worsened, resulting in the assault. Since at best the case can be one where appellant Dharampal might be said to have caused a bodily injury as is likely to cause death, with an intention to cause death, he can be convicted under section 304 Part I. Therefore, there is every justification to alter the conviction recorded under section 302 into one Section 304 Part I IPC. On the facts and circumstances of the case, the imposition of 10 years rigorous imprisonment and fine would sufficiently meet the requirements of justice and to this extent the judgment of the Court below shall stand altered and modified. For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellant Dharampal and instead of section 302 IPC we convict him under section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/-, in default to further suffer six months rigorous imprisonment. (ii) We allow the appeal of appellants Ramswaroop, Khushiram, Ramotar @ Ramavtar and Hanuman and acquit them of the charges under sections 148 and 302/149 IPC. Appellants Ramswaroop, Khushiram, Ramotar @ Ramavtar and Hanuman are on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. .;