SHARMA, J. - (1.) THIS appeal by appellants arises out of the judgment and order dated 15. 2. 1985 passed by the learned Sessions Judge, Bharatpur, whereby the learned Judge has convicted and sentenced the accused appellants in the following manner: Appellant Nawal Singh: For offence u/s. 304 Part II IPC: Five years' rigorous imprisonment. Appellant Raja Raj: For offence under Section 304 Part II r/w. Sec. 34 IPC: Five years' rigorous imprisonment.
(2.) IN all 11 accused including the appellants were tried for offence under Sections 147, 148, 149, 302, 302/149 and 323 IPC. At the conclusion of trial, the learned trial Court did not find the charges established against 9 accused and accordingly acquitted them of the charges. However, the learned trial Court convicted the sentenced the appellants in the manner stated above. Mr. Sinsinwar, learned counsel for the appellant has frankly conceded that he does not want to challenge the conviction of appellant Nawal Singh and would kept confined his arguments only on the point of sentence to be awarded to him. IN my opinion, the learned counsel has rightly not challengined the conviction of appellant Nawal Singh for offence under Section 304 Part II IPC, inasmuch as the prosecution has been able to prove beyond doubt that it was Nawal Singh who inflicted lathi blow on the head of deceased Hari Singh. PW. 1 Gulab Singh, Up Sarpanch an eye witness of the incident has stated that appellant Raja Ram caught hold of Hari Singh, while appellant Nawal Singh inflicted a lathi blew on his head. PW. 2 Balveer, son of deceased has also stated that Raja Ram caught waist of his father and appellant Nawal Singh struck a lathi blow on his head. Similar is the statement of yet another eye witness Bhagmal, PW. 3. According to PW. 4 Shyama, who at the relevant time, was sitting at Panchayat Bhawan which is at a distance of 10-15 years from the place of incident, on being asked by appellant Nawal Singh Raja Ram caught hold of Hari Singh and then Nawal Singh struck a lathi blow on his head. IN the meantime he also reached the place of incident and tried to intervene and he was also struck on his hand by a lathi. PW. 5 Roshan, yet another eye witness has also stated similar to what other eye witnesses have deposed. The testimony of eye witnesses stands in corroboration with the medical evidence. The injury report, Ex. P. 7 of Hari Singh mentions four injuries including a bruise with lacerated injury on the right side of scalp of the size of 3" x 2". According to post mortem report, the cause of death was stock and haemorrhage due to head injury. PW. 6 Dr. Brijendra Singh Rathore, one of the members of medical board has also stated that he found four injuries including one bruise with lacerated injury 3" x 2" on the scalp right side. IN cross examination, the doctor stated that this injury could also be caused by a stone. PW. 7 Dr. Bhopal Singh, Medical Jurist another member of the Medical Board has stated that on external examination he noted abrasion 3 cm x 1-1/2 cm with lacerated wound 1 cm x 0. 2 cm x 0. 2 cm on right parietal region and 3 cm away from the mid parietal line on front side. On internal examination there was a verticle 2 cm long fracture of right parietal bone below the injuries stated above. IN cross examination, the doctor deposed that looking to the dimensions of the laceration found with abrasion it is possible that a stone could have also caused this injury. Thus, keeping in view the medical evidence and the established facts and circumstances of the case, the trial Court has rightly clothed the appellant with the knowledge that the injury that he was causing to Hari Singh by lathi on an a vital part of the body was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of deceased and therefore the offence would suarely fall under Sec. 304 Part II IPC. On the question of sentence, learned counsel submitted that the incident relates way back to the year 1983 and thus about 23 years have elapsed from the date of incident. At the time of incident the age of appellant was 49 years and by now he has attained the age of 1/2 years. That apart, the appellant has already undergone sentence of about 1 year and 8 months. In these circumstances, learned counsel argued that it would be in the interest of justice to reduce the sentence to the period already undergone by him. He has also relied upon a decision of the Apex Court in Sarup Singh vs. State of Haryana (AIR 1995 SC 2452 ). In this case the accused was convicted for offence under Sec. 304 Part II IPC. He remained in custody for over one year after conviction. He also remained in custody for some time during investigation and trial. The Apex Court having considered the facts and circumstances of the case and period spent in confinement, reduced the sentence to the period already undergone by him. So far as conviction of appellant Raja Ram is concerned, suffice it to observe that his conviction for offence under Sec. 304 Part II with the aid of Sec. 34 IPC cannot be sustained and is liable to be set aside, inasmuch as there is no evidence to conclude that he shared common intention with appellant Nawal Singh. It was only during trial that Prosecution witnesses have made a specific allegation against Raja Ram that he caught the waist of deceased Hari Singh, while Nawal Singh struck a lathi blow on the head of deceased. However, the FIR, Ex. P. 1 does not contain the allegation that Raja Ram caught the waist of deceased at the time when Nawal Singh inflicted a lathi blow on the head of deceased. Thus the allegation against Raja Ram that he caught the waist of deceased at the time when Nawal Singh struck lathi blow on his head, in my considered view appears to be an after thought and hence it must be held that prosecution has not been able to prove beyond doubt that Raja Ram shared common intention with appellant Nawal Singh. Resultantly, this appeal is partly allowed. While maintaining conviction of appellant Nawal Singh for offence under Section 304 Part II IPC, the sentence awarded to him is reduce to the period already undergone by him. The conviction of appellant Raja Ram for offence under Section 304 Part II read with Sec. 34 IPC is set set-aside and he is acquitted of the charges. .;