SHARMA, J. - (1.) RAM Niwas, Ravindra and Rajesh, the appellants herein, along with four co-accused Madan Lal, Sita RAM, Mahendra and Kishore were tried before the learned Additional Sessions Judge No. 2 Sikar Camp Srimadhopur in Sessions case No. 24/2001 (Old No. 19/98 ). Learned Judge vide judgment dated July 22, 2002 while acquitted co-accused persons, convicted and sentenced the appellants as under:- RAM Niwas: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 10000/-, in default to further suffer simple imprisonment for two months. Ravindra and Rajesh: U/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 10000/-, in default to further suffer simple imprisonment for two months. U/s. 324 IPC: Each to suffer rigorous imprisonment for one year. U/s. 323 IPC: Each to suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently. Against the finding of acquittal the State of Rajasthan preferred the Appeal No. 224/2003, whereas informant Richhpal has preferred the revision petition No. 73/2003.
(2.) THE prosecution case as unfolded during trial is that on March 21, 1998 at 10. 40 PM informant Richhpal (PW. 1) lodged written report (Ex. P. 1a) at Police Station Reengas to the effect that a meeting of their family members regarding dispute of `chabutra' (Platform) was held in the evening of the said day which continued till 9 PM. After the meeting dispersed around 9. 30 PM while his brother Nekiram @ Narendra was standing in Chowk, Sita Ram, Ram Niwas and Madan Lal came over there armed with lathis and caught hold of Nekiram. In the meanwhile three sons of Mohan Lal viz. Kishore, Rajesh and Mahendra and Ravindra S/o. Sitaram also came over there armed with Gandasi, iron-rod and knife and surrounded Nekiram and started inflicting blows with lathis and iron-rod, as a result of which Nekiram fell down. Ram Niwas and Ravindra then caused injuries with knives on the person of Nekiram. Mukesh and Gulab Chand, who made attempt to rescue Nekiram, also sustained injuries. Nekiram died on the way while he was taken to the hospital. On that report a case under Sections 147, 148, 149, 341, 302, 323 and 307 IPC was registered and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2 Sikar Camp Srimadhopur. Charges under sections 148, 302, 302/149, 307, 307/149, 325/325/149, 323 and 323/149 IPC were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 16 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness was however examined in defence. 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. Death of deceased Nekiram was indisputably homicidal in nature and as per postmortem report (Ex. P. 25) following injuries were found on the dead body:- 1. Abrasion 12 cm x 1-2 cm variable width in left axilla antr,. post. Direction. 2. Incised wound 5 x 1 1/2 cm (width in centre) on left side of anterior of neck near base: 6 cm above left sterno clavicular joint. On skin direction of wound in medial lateral while in sterno mastoid muscle wound is in vertical direction 4 1/2 x 1/2 cm depth of wound communicated in left pleural cavity left pleural cavity full of blood (liquid form only no clotts) Direction of depth is downward and medially. Wound on left apex of lung on post surface 4 1/2 x 2 x 1cm also cutting arch of aorta near left subclavian origin. Dr. Bajrang Lal Soni (PW. 10), who conducted autopsy on the dead body, opined that the cause of death was shock (hemorrhagic) due to cutting of arch of aorta. As per injury report (Ex. P. 10) Gulab (PW. 12) received following injuries:- 1. Incised wound 5 x 1/2 cm x skin deep vertically over chest 1 cm below left nipple. 2. Incised wound 2 x 1/2 cm x skin deep tearsovely lateral side of left chest posteriorly. 3. Incised wound 3 x 1/4 cm x skin deep vertically over left thigh ant. 4. Abrasion 4 x 1/4 cm left side of chest 1 cm lateral to injury No. 1. With incised wound 3 x 1 cm x skin deep 5. Lacerated wound 1/2 x 1/2 cm x skin deep middle of left chest lateral side. 6. Lacerated wound 1/2 x 1/2 cm x skin deep over left scapula. Injury report (Ex. P. 11) of Mukesh (PW. 5) reads as under:- 1. Lacerated wound 1/2 x 1/2 cm x skin deep middle region of left thigh. 2. Lacerated wound 1 x 1/4 cm x skin deep back of left lower 3rd of chest. 3. Incised wound 2 x 1/4 cm x skin deep left parietal region of head. 4. Abrasion 10 x 1/4 cm circular extending right to left region of back of middle of chest. 5. Swelling 5 x 3 x 3 cm Right thumb. 6. Lacerated wound 1/2 x 1/2 cm x skin deep medial to renal angle. On X-ray vide X-ray report (Ex. P. 12) fracture of 1st phalanx of right thumb was found. Factual scenario emerges from the material on record is as follows:- (i) As per informant Richhpal (PW. 1) one Mukti Lal hurled abuses at Rameshwar Kaka. A meeting of family members therefore was held and in that meeting Mukti Lal said sorry to Rameshwar Kaka. (ii) In the written report it was stated that Ram Niwas was armed with Lathi but he and Ravindra inflicted knife blows on the person of Nekiram but specific injury was attributed to Ram Niwas. But in the deposition at the trial, informant Richhpal stated that Ram Niwas inflicted knife blow on the neck of Nekiram whereas Ravindra gave blow with knife to Gulab and Mukesh. (iii) Richhpal in his cross examination stated that in the meeting the assailants were present but they did not have arms. Richhpal did not know as to from where the arms came in the possession of the assailants. (iv) Deceased Nekiram, injured Gulab, Mukesh and the appellants were near relatives and all resided near the place of incident. (v) The incident occurred after the meeting of family members dispersed and before the incident hot words were exchanged between the deceased and Ram Niwas. According to Gulab (PW. 12) Ram Niwas told Nekiram that `gali Use Kya di, Hamen Dekar Dekho (why abuse was hurled at him, let abuses be hurled at us) Nekiram then replied "sabko ek lathi se mat Hanko, apne apne ghar jao (don't push everybody with one stick, go your respective homes ). (vi) Solitary incised wound received by Nekiram was attributed to Ram Niwas and he did not repeat the same. (vii) Injuries on the person of Gulab and Mukesh were attributed to Ravindra and Rajesh. (viii) Mukesh (PW. 5) deposed that although he received injuries, he did not see the assailant because of darkness. Mukesh was declared hostile.
(3.) IN the backdrop of fact situation of the present case we find that the appellants did not share common intention to kill Nekiram. Section 34 IPC deals with the doing of separate acts, similar or diverse, by several persons, if all are done in furtherance of a common intention, each person is liable for the result of them all as if lie had done then himself. IN the present case the incident occurred all of sudden after the meeting of family members dispersed. There was no previous enmity between appellant Ram Niwas and the deceased. The crime was committed without premeditation. The quarrel arose on a spur of moment, only one injury was caused in the heat of passion and appellant Ram Niwas did not take undue advantage or acted in a cruel or unusual manner. The case of appellant thus comes within Exception 4 to Section 300 IPC with the result that the offence committed was culpable homicide not amounting to murder. Learned counsel for the complainant and learned public prosecutor took us through the record and persuaded us to allow the revision and appeal preferred by the State of Rajasthan but we find ourselves unable to accept their contentions. In our opinion after the dispute arose between Mukti Lal and Rameshwar Kaka was resolved there were altercations between the family members and incident occurred without premeditation in the darkness. Neither there was common intention to kill Nekiram nor the persons present at the place of occurrence had common object. As a result of above discussion, we dispose of the instant matters in the following terms:- (i) We partly allow the appeal of appellant Ram Niwas and instead of Section 302 IPC we convict him under Section 304 Part II IPC. Looking to the fact that the appellant Ram Niwas has already remained in custody for a period of more than five years and nine months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Ram Niwas, who is in jail, shall be set a liberty forthwith, if not required to be detained in any other case. (ii) We partly allow the appeal of appellants Ravindra and Rajesh and acquit them of the charge under Section 302/34 IPC. We however confirm their conviction under Sections 324 and 323 IPC. Since Ravindra and Rajesh have remained in custody for a period of more than one year and four months and they have already served out the sentence awarded to them and they are on bail, they need not surrender and their bail bonds stand discharged. (iii) We find no merit in the appeal No. 224/2003 preferred by State of Rajasthan as well as the revision petition No. 73/2003 preferred by Richhpal and the same stand dismissed. (iv) The impugned judgment of learned trial Judge stands modified as indicated above. . ;