A. K. MATHUR, J. - (1.) BOTH these appeals arise out of a common order and therefore, they are disposed of by this common order. The learned Additional Sessions Judge, Hanumangarh by his order dated 29. 4. 1976 convicted accused appellants Ganga Ram and Bhajansingh under Section 302 I. P. C. and accused appellants Bootaram, Pritamsingh and Chanansingh under Section 302 read with Section 149 I. P. C. and sentenced them to imprisonment for life with a fine of Rs. 100/- and in default of payment of fine to undergo further rigorous imprisonment for two months. Accused Bhajansingh was also convicted under Section 324 I. P. C. and accused Gangaram, Pritamsingh, Chanansingh and Bootaram were also found guilty under Section 324 read with Section 149 I. P. C. and sentenced to 1-1/2 years rigorous imprisonment. All the five accused appellants were also found guilty under Section 148 I. P. C. and they were sentenced to one year's rigorous imprisonment. The learned Additional Sessions Judge further found the accused appellants guilty under Section 323 I. P. C and sentenced them to one year's rigorous imprisonment. All the substantive sentences were directed to run concurrently.
(2.) THE facts giving rise to this case are that in Chak No. 5 B. P. M. Sardargarh is situated about 30 miles away from Police Station, Suratgarh. In this Chak, the agriculturists get irrigation through Panchayat Bari. For management of this Panchayat Bari two Mirabs (for maintaining the distribution of water) were appointed. P. W. 3 Palasingh was appointed as Mirab for half of the chak and for the remaining half of the chak Bootaram was the Mirab. On 25. 3. 1975 the accused persons were getting the irrigation according to their turn and it was scheduled to be over by 6 P. M. P. W. 3 Palasingh told the accused that since their turn of water is over at 6 P. M. and now it is the turn of Tarachand P. W. 1, but the accused did not take any notice of it. THEreafter at 9. 30 P. M. Palasingh P. W. 3 along with his brother Modu PW. 2 and Bachansingh their Siri went to P. W. 1 Tarachand for getting regular water supply. THE accused called them to take the account of water as we have summoned the Panchayat. When P. W. 2 Modu and P. W. 3 Palasingh along with their Siri Bachansingh deceased reached near the field of Ramu in Kila No. 11 accused Chanansingh shouted that enimies have come so beat them. THEreupon, accused Chanansingh came with saila and assaulted Modu. Bhajansingh was armed with a Gandasi and he hit Modu on his legs. THEreafter, accused Gangaram and Bhajansingh surrounded deceased Bachansingh and started beating him. Accused Gangaram hit him on his head and Bhajansingh hit him on his hand with Gandasi. Accused Pritamsingh and Bootaram assaulted P. W. 3 Pala-Singh. It is alleged that Bachansingh fell down and died on the spot. It is further alleged that the accused persons took Modu to Karwali Dhani and further assaulted and thereafter left him at Jetsar. THEreafter, P. W. 2 Modu reached at Police Station, Suratgarh in the jeep of one Gopi and filed the first information report on 26. 3. 1975 at 9. 30. On this a case was registered against the accused persons and the investigation was taken up. THE Investigating Officer reached at the scene of occurrence and sent the body of the deceased Bachansingh for post mortem. THE injuries of P. W. 2 Modu and P. W. 3 Palasingh were also examined. After close of necessary investigation, the accused persons were charged under Section 302, 307/149 and 148 I. P. C. THE case ultimately committed to the court of Sessions and the accused persons Gangaram and Bhajansingh were charged under Section 302, 307 read with Section 149 and 148 I. P. C. Accused Chanansingh, Pritamsingh, Bootaram were charged under Sections 302 read with Section 149, 307 read with Section 149 and 148 I. P. C. The prosecution examined 5 witnesses and got a large number of documents exhibited. The accused denied the charges. Accused Bhajansingh took the plea that he was not on the scene of occurrence. The other accused have taken the plea that the wife of Modu had an illicit intimacy with Bachansingh, deceased, therefore, Modu and Palasingh have done away with Bachansingh and this case is falsely foisted on them. They denied the giving of any information of saila and gandasi. The accused did not produce any witness in defence. The learned Additional Sessions Judge, after holding the necessary trial, found the accused persons guilty and convicted and sentenced them as aforesaid. Aggrieved against this judgment of the learned Additional Sessions Judge, Hanumangarh dated 29. 4. 1976 the accused appellants have preferred the appeals. We have heard learned counsel for the appellants and the learned Public Prosecutor and have also gone through the judgment and the necessary record. Learned counsel for the appellants have seriously urged that there are only two eye-witnesses of the incident, namely, P. W. 2 Modu and P. W. 3 Palasingh. Both are real brothers. Therefore, their testimony have to be examined with great amount of caution. Learned counsel has urged that both the witnesses are not reliable and it is not possible for them to see in the dark as to who were the assailants. We have gone through the testimony of P. W. 2 Modu and P. W. 3 Palasingh. P. W. 3 Pala Singh was a Merab and it was his responsibility to enforce the Panchayat bari and in order to discharge his duty he asked the accused to stop the supply of water so that another person P. W. 1 Tarachand may get his supply of water. This appears to have not been liked by these accused appellants, therefore they have resorted to this beating. Both P. W. 2 Modu and PW, 3 Palasingh have deposed that the night was dark but the persons were visible from 2 to 3 feet. All these assailants were known to the witnesses as they are residents of the same chak and beating has been taken place from 2 to 3 feet, as all the persons namely, P. W. 3 Modu, P. W. 2 Palasingh and Bachansingh deceased have received injuries and in that fight deceased Bachansingh has also died. Thus, so far as the identity of the assailants is concerned, the same cannot be disputed. The names of the assailants find mention in the first information report which was filed on the next morning. Though the accused persons have also received injuries, namely, Gangaram, Bootaram, Pritamsingh and Chanan-Singh, but they wanted to resile from this at a later stage so as to deny their presence at the scene of occurrence. But the fact remains that they did receive injuries and similarly P. W. 2 Modu and P. W. 3 Palasingh also received injuries and deceased Bachansingh died at the scene of occurrence as a result of this fight. In these circumstances, it cannot be disputed that these accused persons were the assailants. The learned Additional Sessions Judge has rightly found them guilty on the basis of the testimony of P. W. 2 Modu and P. W. 3 Palasingh. Learned counsel for the appellants have strenuously urged that even if the accused persons are the assailants still they never intended to cause death of deceased Bachansingh and their purpose was only to beat them and not to kill them. It has further been pointed out that if the accused persons had really intended to kill any body then when they took Modu they would not spared him also. Learned counsel submitted that the intention of the accused was to belabour the victim and the nature of injuries will also show that it was not intended to cause such bodily injury so as to cause death of the deceased. We are of the view that the contention of the learned counsel is sustainable. In fact, looking to the nature of injuries caused to the deceased and P. W. 2 Modu and P. W. 3 Palasingh, it cannot be said that the accused persons really wanted to intend the death of the deceased. But their whole purpose was to resist P. W. 3 Palasingh from changing the water supply from the accused person's field to that of P. W. 1 Tarachand. Thus, on account of this whole alteration arose and it was not intended to cause death of any of the victims. Having regard to the injuries received by the deceased Bachansingh we are of the view that it would not be safe to convict the accused under Section 302 I. P. C. Therefore, we convert the conviction of accused Gangasingh and Bhajansingh from 302 I. P. C. to 304 Part II I. P. C. and Bootaram, Pritamsingh and Chanansingh from 302/149 to 304 Part II read with section 149 I. P. C. The accused Bhajansingh at the time of conviction was aged 19 to 20 years i. e. below 21 years of age. Thus, except accused Bhajan Singh all the four accused persons, namely, Gangaram, Pritamsingh, Bootaram and Chanansingh are sentenced to 5 years rigorous imprisonment and a fine of Rs. 1000/- each and in default of payment of fine to undergo further imprisonment for two years. The amount of Rs. 3,500/- should be paid to the wife or dependents of the victim Bachansingh out of the fine if so realised from the accused persons. The accused persons are on bail, their bail bonds are cancelled and they are given one month's time to surrender themselves before the learned Additional Sessions Judge, Hanumangarh to serve out the remaining sentence failing which the learned Additional Sessions Judge shall get them arrested to serve out the remaining sentence.
(3.) THE accused Bhajansingh is given benefit of probation and he shall execute a personal bond in the sum of Rs. 5000/- with two sureties in the sum of Rs. 2,500/- each to the satisfaction of the learned Additional Sessions Judge, Hanumangargh for maintaining peace and be of good behaviour for a period of two years and to receive the sentence as and when called upon to do so. He is on bail, he need not surrender. One month's time is allowed to him to furnish the personal bond and sureties. The conviction of the accused persons under Sections 148 and 324 and 323 IPC. is affirmed. However, all the sentences shall run concurrently except in the case of Bhajansingh who has been released on probation. In the result, these appeals are disposed of as indicated above. . ;