SINGH, J. - (1.) SINCE both the appeals arise out of the same judgment, therefore, it is just and proper to decide both the appeals together.
(2.) HEARD the learned Public Prosecutor for the State and the learned counsel for the accused who are respondents in the State Appeal No. 458/1978 and appellants in the Appeal No. 409/1978. At the out-set, it is pertinent to note that vide order dated 14. 12. 1978 leave to appeal was granted to the State only in respect of acquittal of Gulab Singh, Nimba and Roop Singh for the offence of murder. The leave sought against the other accused respondents was refused. Accused respondent Sona had died during the trial of the case and, therefore, the question of granting leave in his case did not arise. After conclusion of the arguments learned counsel for the accused appellant-respondent Nimba Ram submitted an application on 23. 7. 1996 alongwith the report of Sarpanch, Gram Panchayat, Naya Chainpura Panchayat Samiti, Bhinmal District Jalore and an affidavit of Gulab Singh which show that the accused appe- llant - respondent Nimba Ram has died. His death occurred about 10-12 years ago. The learned Public Prosecutor has not controverted this fact. Therefore, the State appeal No. 458/1978 abates against Nimba Ram. The other appeal filed on behalf of Nimba & other cannot abate because the sentence of fine was also imposed on him. The facts of the case so far as they are relevant for the disposal of these appeals may be summarised as below : On 23. 7. 1977 Smt. Lachhi wife of Sona resident of Chainpura Nayawala submitted a report in writing at the Police Station, Bagoda. According to that report on 23. 7. 1977 at about 7 A. M. Smt. Lachhi's son Chela has started from the house with his animals for going towards Magrawala Badiya. At that time Lachhi herself was going towards Magrawala Badiya with a pitcher of water. When Chela reached the Oran, Gulab Singh, Roop Singh, Sona, Nimba son of Sona, Jhutha son of Rata and Karinga son of Rata who were hidden behind the bushes and were armed with lathis and axes came out side and they collectively attacked Chela. Gulab Singh at that time said that the enemy has come and let us finish him and all the accused persons started inflicting lathi and axe blows on the body of Chela. Consequently his both hands and right leg were fractured and blood came out of his wounds inflicted on his body. When Smt. Lachhi and Chela raised an alarm Bheekha, Bhabuta and Rama rushed towards the place of occurrence and they tried to pro- tect Chela who was being beaten by the assailants. Bhabuta and Rama also received injuries at the hands of the assailants. Thereafter believing that Chela had died the assailants went away. When Chela was being taken to Bagoda for treatment he breathed his last in the way and, therefore at the time of lodging of the first information report his dead body was also produced at the Police Station. On the basis of the report lodged by Smt. Lachhi the police registered a case under Sections 302, 147, 148, 149 and 323 I. P. C. and started the investigation. After investigation a report under Section 173 Cr. P. C. was submitted in the Court of learned Munsif and Judicial Magistrate, Bhinmal who committed the case to the Court of Sessions Judge, Jalore. Six persons, namely, Gulab Singh son of Vagat- singh, Nimba son of Sona, Roop Singh son of Vagatsingh, Sona son of Hukma, Karinga son of Rata and Jhutha son of Rata were charged under Sections 147, 148, 302 read with Section 149 and 323 I. P. C. They pleaded not guilty to the charges and the prosecution evidence was recorded. During the trial accused Sona expired, therefore, the proceedings against him were dropped and the trial continued against the remaining five accused persons.
(3.) THE prosecution examined Hadwantsingh, P. W. 1, Dharma Shanker P. W. 2, Jumma P. W. 3, Durg Singh P. W. 4, Dr. Sumer Singh P. W. 5, Mohanlal P. W. 6, Bhabutaram P. W. 7, Lachhi P. W. 8, Rama P. W. 9, Bheekha P. W. 10, Poonamchand P. W. 11 and Balwataram P. W. 12, in support of the prosecution story. THE accused persons were examined under Section 313 Cr. P. C. Bheema D. W. 1, Roopsingh D. W. 2 and Garwardan D. W. 3 were examined in defence by the accused persons. After hearing the arguments of the parties, the learned Sessions Judge, Jalore came to the conclusion that only 4 persons, namely, Gulab Singh, Roop Singh, Nimba and Sona had taken part in the assault. THErefore, the charges under Sections 147 & 148 I. P. C. were not made out. He, therefore, acquitted Gulab Singh, Nimba, Roop Singh, Karinga and Jhutha of the charges punishable under Sections 147, 148 and 302/149 I. P. C. Accused Karinga and Jhutha were also acquitted of the charge punishable under Section 323 I. P. C. because in the opinion of the learned Sessions Judge, they have not taken any part in inflicting injuries on Chela. Accused Gulab Singh, Nimba and Roop Singh were, however, convicted under Section 304 Part II read with Sec- tion 34 I. P. C. and Section 323 I. P. C. and sentences were imposed on them as mentioned above. The learned Public Prosecutor has submitted that the finding of the learned Sessions Judge that only four persons, namely, Gulab Singh, Nimba, Roop Singh and Sona collectively attacked Chela and inflicted injuries on him and that Karinga and Jhutha did not take any part in the incident is against the law and facts. According to the learned Public Prosecutor the prosecution evidence proves that Karinga and Jhutha also participated in the incident and, therefore, the offence under Sections 147 and 148 I. P. C. is also made out and all the accused persons are, therefore, liable for the death as well as injuries caused to Chela by virtue of Section 149 I. P. C. The difficulty in accepting this argument of the learned Public Prosecutor is that leave to appeal was granted in respect of three accused respondents only and they are Gulab Singh, Nimba and Roop Singh and that leave to appeal was only in respect of acquittal of the aforesaid respondents on charge of murder. Since leave to appeal against acquittal of the 5 accused persons for charge under Sections 147 and 148 I. P. C. was not granted, it is not possible to go into the merit of the contention that Karinga and Jhutha also participated in the alleged incident and that six persons had constituted an unlawful assembly with the common object of causing injuries to Chela. Therefore, the contention that the charge under Sections 147 and 148 I. P. C. has been proved and the respondents are liable for the offence under Section 149 I. P. C. cannot be accepted. The learned Sessions Judge has convicted Gulab Singh, Nimba and Roop Singh under Sections 323 and 304 Part II I. P. C. read with Section 34 I. P. C. on the basis of the finding that these three persons alongwith Sona who died during the trial shared the common intention of attacking Chela attacked him and inflicted injuries in furtherance of their common intention and thereby committed the offences punishable under Sections 323 and 304 Part II read with Section 34 I. P. C. The contention of the learned Public Prosecutor is that the offence of the respondents falls within the four corners of Section 302 I. P. C. and in any case their act is covered by Section 304 Part I I. P. C. and, therefore, the convi- ction of the respondents under Section 304 Part II I. P. C. was legally impermissible and, therefore, it deserves to be set aside and the appeal filed by the State deserves to be accepted to that extent. ;