Navin Sinha. - (1.) Appellant No. 1 stands convicted under Section 302 I.P.C. and the others under Section 302/149 I.P.C. to life imprisonment with fine and default stipulation along with one year rigorous imprisonment under Section 148 I.P.C. ordered by the Sessions Judge, Merta dated 16.3.1989 in Sessions Trial No. 36 of 1987.
(2.) The deceased Sadashivram was assaulted in front of his shop on 14.3.1987 at 11:00 a.m. leading to F.I.R., Exhibit-P-2, by his father PW-1, Hansa Ram the same day at 6:30 pm. Appellant No. 1 is said to have come to the shop and asked for supplies on credit which the deceased declined. The Appellant went away abusing to return five to seven minutes later with the others. Appellant No.1 was armed with Dharia and gave a single blow on the head. The others assaulted with Lathis in an omnibus manner. The deceased was taken to the Government Hospital, Hospital from where he was referred to Nehru Hospital, Ajmer and expired three days later on 17.3.1987.
(3.) Learned Counsel for the Appellants submitted that the conviction of the Appellants under Sections 302, 302/149 I.P.C. was not sustainable in the facts of the case. There was no common object to kill. At best the Appellants intended to teach the deceased a lesson for refusing supplies on credit. There was no past enmity to even suggest a motive. If there existed a common object to kill nothing prevented Appellant No. 1 from attacking with the sharp edge of the Dharia rather than with the wooden handle. There has been no repetition of the assault. The others are said to have assaulted in an omnibus manner on non-vital parts of the body such as arm, forearm. The injuries are simple in nature except for injury No. 4 causing fracture of the base of left metacarpal bone on the right hand. The Trial Judge erred in appreciating the evidence of DW-6 Dr. Satyanaran Sharma who conducted the MLC Exhibit D-6 of Appellant No. 1 on 14.3.1987 itself at 5:30 p.m. and found abrasion on his body which could have been caused by a hard blunt substance within 24 hours. If neither the witness has been disbelieved nor the MLC held to be fabricated, there is no warrant for the conclusion based on assumption and presumption that it may have been a self inflicted injury. The defence under Section 313 Cr.P.C. of an altercation preceding the assault has not been considered and appreciated. The deceased did not die immediately but expired three days later during the course of treatment. The conviction of the Appellants deserves to be altered to one under Section 304 Part II I.P.C. Reliance was placed on AIR 1981 Supreme Court 1552 Jagrup Singh v. State of Haryana.;