LODHA, J. - (1.) THE three appellants Gopiram, Bhomaram and Rooparam have been convicted under sec. 302 read with sec. 34 I. P. C , and sentenced to imprisonment for life and a fine of Rs. 100/- each by the learned Sessions Judge, Bikaner on August 25, 1981. THEy have therefore, come up in appeal.
(2.) THE learned counsel for the appellants has very candidly not disputed the prosecution story so far as the causing of injuries and the resultant death of Shaktaram. He has only contended that taking the prosecution story as it is, the offence under sec. 302 read with sec. 34 I. P. C. cannot be said to have been made out against the appellants and they can be held guilty only under sec. 304 part II or at most 304 part I, I. P. C. In view of the limited argument raised before us by the learned counsel for the appellants we need not state the facts of the case at length. Suffice it to say that at about 6 A. M. on May 20, 1980 Megharam, brother of the deceased Shaktaram, was going from his 'dhani' to the 'dhani' of his brother Shaktaram. On the way, near the field of one Bhian Ram, he heard some hue and cry and proceeding further he saw the accused Gopiram, Rooparam and Bhopa-ram inflicting injuries on Shaktaram. According to him. Gopiram had a 'barcbi', Rooparam had a 'jai' and Bhomaram had a lathi. He saw them inflicting a number of blows on the deceased and then run away. He then went near Shaktaram and found him dead. Thereupon he proceeded to go to his other brother Kesra to inform him of this incident, but on the way one Mangilal met him whom he narrated the story and told him to inform Shaktaram's wife about it and he proceeded to inform Kesra. The matter was also related to other villagers and then Megharam lodged a report of this incident at Police Station Nokha at 11. 30 A. M. on the same day. The investigations started, post mortem examination was carried out by Dr. Nathmal P. W. 14 and the accused were also arrested and the respective weapons are said to have been recovered in pursuance of the informations given by them. However, on examination, the serologist could not discover any human blood on any of these weapons. The accused were challaned and committed and at trial they were held guilty as aforesaid. The prosecution has relied upon the direct testimony of Megharam P. W. 9 and Poosaram P. W. 4 which is corroborated by the evidence of Kesaram P. W. 5, Deeparam PW. 6, Mst. Koji P. W. 8 and Dhularam P. W. 11 to whom the eyewitnesses had narrated the story soon after the incident. The learned Sessions Judge has also sought corroboration from the recovery of the weapons and the motive to the effect that the accused Gopiram had been seen by the deceased Shaktaram in the course of illicit intercourse with a girl in his relation and had threatened him to outcaste. As already stated above, the only contention raised before us in this appeal is about the nature of the offence. We have to examine whether on the material on record the conviction under s. 302 read with s. 34 I. P. C. can be maintained, or the appellants can be held guilty of some lesser offence? In this connection, it may be pointed out that on the post mortem examination Dr. Nathmal found the following injuries on the person of the deceased: - " (1) Incised wound longitudenaly 6 cm. x 2 cm. x 1/2 cm. forehead midrearm (torn ). | (2) Abrasion with redish 2 cm. x 2 cm.- Angle of rt. mandible. (3) Echymosis redish - 4 c,m. x 3 c m. x Rt. Eygomatic arch (4) Extensive echymosis with Redish - 20 c. m. on outer surface of the Rt. firearm. (5) Incised wound oblique with fract. of thumbs cc. m. x 2 c. m.-Rt. thumb proximal segment. (6) Echymosis Redish-6 c m. x 5 cm. About 5 cm. above Rt. knee joint on thigh laterally. (7) Echymosis Redish-12 cm. x 8 cm.-6 cm. behind Rt. knee joint laterally. (8) Lacerated wound-2 c. m. x 2 c. m.-Medial side of Rt. leg. with Broken piece of tibia, about 4 cm. above ankle joint. (9) Lacerated wound-2-1/2 cm. x 2 c. m. x5 cm. above ankle joint Rt. thigh broken pieces of tibia coming out. (10) Lacerated wound 2 cm. x 2 cm. x2 cm. above left ankle joint. Thigh which bones tibia pieces coming out laterally. (11) Lacerated wound -3 cm. x 2 cm.-2 cm. above inj. No. 10. (12) Lacerated wound -3 cm. x 1-1/2 c. m.-3 c. m. below left knee joint Anterior (torn) bleeding. (13) Dislocation of Ankle joint Left medially. (14) Extensive Echymosis Redish colour-6 cm. x 5 c. m.-left forearm bone, extending from Elbow joint towards Distal side. Fractures of both forearm bone mid region. (15) Echymosis Redish -5 cm. x 2 cm. on lower 1/3 of Arm (Left) with Rt. Supra condilar region. (16) Lacerated wound- 2 cm. x 2 cm. at Junction of middle and lower 1/3 of Arm left side. (17) Extensive Echymosis oblique with Redish col. 18 c. m. x (4) 2 c. m.-on scapular region and chest Rt. side. (18) Echymosis 8 c. m. x 3 cm.-2 cm. Medial to Inj. No. 17. (19) Echymosis (redish col. 12 cm. x 2 cm. from scapular to 12th vertebrae on left side. (20) Echymosis- 8 cm. x 4 cm. oblique -At. Inf. Angle of left scapula. These all above injuries were ante mortem. In nature except injury No. 1 and injury No. 5 all were caused by blunt weapon and injury No. 1 and injury No. 5 were caused by sharp weapon. " The doctor had further found fractures of the right side 2nd, 3rd, 4th, 5th, 7th, 8th and 10th and left side 2nd, 3rd, 4th, 6th and 7th ribs, fracture of the right thumb, fracture of both fore-arm bones at the middle lower 1 /3, fracture of both fore-arm bones of the left hand upper 1/3, fracture of the left humerus and dislocation of both ankle joints. He has opined that the death was caused on account of shock due to peripheral vascular failure as a result of extensive injuries to both extremities bones and ribs. The accused were said to be armed with 'barchi', 'jai' and lathi. There are only two injuries with sharp edged weapon, namely, injury No.) on the forehead which was only 6 cm. x 2 cm, x 1 c. m. and there was no fracture underneath it and injury No. 5 which was an incised wound on the right thumb with a fracture This injury was also not on any vital part of the body. The other injuries have been caused only by blunt weapons and that those 2 on hands and back. The very fact that the accused being armed with a sharp weapon like a 'barchi' did not cause any serious injury with such a weapon on any vital part of the body of the deceased, gives rise to the presumption that they did not intend to cause death; but only wanted to cause serious injuries on the person of the deceased. Further the fact that even the injuries by blunt weapon had not been caused on the head supports this presumption that the accused did not intend to cause death of Shaktaram. Of course about 20 injuries have been inflicted on the person of the deceased and number of his ribs were fractured as also his both the hands had also been fractured The cumulative effect of these injuries has resulted into death of Shaktaram. The doctor in the post mortem report has not slated that the injuries on the person of the deceased either individually or collectively were sufficient in the ordinary course of nature to cause death. He has also not stated so during the course of his examination in-chief. It is only in the re-examination that he has stated that the injuries were collectively sufficient to cause the death of Shaktaram. But that statement also does not appear to be quite convincing because in the cross-examination which proceded the re-examination he had stated that these injuries may have caused death and has not specifically stated that they were sufficient in the ordinary course of nature to cause death. Therefore, in the re-examination it appears that at the suggestion of the learned Public Prosecutor the doctor may have stated so. He has clearly stated that the injuries with the sharp edged weapon were only two. Injury No. 1, as already stated above, was a minor injury on the forehead whereas injury No. 5 was on the thumb and, therefore, they could not have caused the death Only the injuries which were caused by blunt weapon were responsible for the fractures which led to peripheral vascular failure and that in turn resulted in the death. It is further pertinent to note that the 'jai' was also not used as a sharp edged or pointed weapon but only as a blunt weapon as the nature of the injuries would indicate and, therefore, it is difficult to attribute the intention of causing death to the accused. The matter, therefore, cannot fall under any of the clauses of sec. 300 I. P. C and can only fall under sec. 304 I. P. C. as culpable homicide not amounting to murder. In the circumstances of the case it can of course be concluded from the number of blows given that the accused had the knowledge that the death of Shaktaram was likely to be caused by their acts. We are, therefore, of the opinion that the case must fall within 3rd part of section 299 I. P. C. In almost similar circumstances, this view had been taken by a Division Bench of this Court in Meharchand V. State of Rajasthan (1 ). The conviction of the accused, therefore, under sec. 302 I. P. C. read with section 34 I. P. C. cannot be maintained, but they can be held guilty under section 304 part II I. P. C.
(3.) AS regards the sentences, it may be observed that the accused have been in custody ever since their arrest in May 1980 and thus they have already suffered more than 6 years' rigorous imprisonment. We are of the opinion that the substantive sentence already undergone would be sufficient. We accordingly partly allow the appeal, set aside the conviction and sentenced of the accused under section 302 read with section 34 I. P. C. and instead alter the conviction of the three appellants to II part of section 304 I. P. C. and impose a substantive sentence of imprisonment already undergone by them along with fine of Rs. 100/- each, in default of payment of which they will undergo one month's rigorous imprisonment each. .;