K.D.SHARMA, J. - (1.) THIS appeal by Niyamat Knan has been preferred against the judgment of the Addl Sessions Judge, Churu, dated 30th October, 1976, convicting the appellant under Section 323, IPC and sentencing him to one year's rigorous imprisonment.
(2.) THE prosecution case against the appellant was as follows : On 24 -6 -1974 at about 11 -30 p.m. Allahdin son of Saduleh Khan, deceased, was standing beneath a tree of 'Tali' (Sheesham). Niyamat Khan son of Labdhi Khan approached him and asked why he had abused the former's mother. Allahdin replied that he did not use any abusive language to Niyamat's mother. Niyamat son of Labdhi Khan resented the reply given to him by Allahdin and began to abuse the latter At that time Saduleh Khan, deceased, was sitting inside a near by house of Saduleh Khan son of Jasu Khan hereinafter referred to as Saduleh Khan, injured On hearing the altercation that ensured between his son Allahdin and Niyamat son of Labdhi Khan, the deceased came out and enquired about the cause of quarrel from his son. Meanwhile, Niyamat son of Labdhi Khan gave a push to Alladhin, as a result of which the latter, being a lame person, fell down Mst. Haliman on seeing being pushed in a violent manner, rushed to the spot and enquired from Niyim it son of Labdhi Khan as why he was beating a lame person. Thereupon, Niyamat son of Labdhi Khan cried in a loud tone that he would beat him On. hearing his cries, the appellant and other persons, namely, Munir Ahmed, Pir Bux, Bashir Khan, Hanif Khan, Bhaswaru Khan, Chand Khan, Yusuf Khan, Mst. Patasi, Gulam Kadar, Murad Khan, Moti Khan, Usman Khan, and Majid Khan came there having armed theme selves with Barchis and lathis from the house of Menuddin Khan which lay adjacent to the tree of Tali'. Munir Ahmed, Gulam Kadar, Pir Bux, Bashir Khan and Niyamat Khan son of Ahmed Khan appellants had Barchis in their hands, while the other persons were armed with lathis On seeing the appellants and other persons reaching the spot, Yusuf Khan son of Saduleh Khan, injured, Ibrahim Khan and Phule Khan also came out of a nearby house of Bashir Khan, where in they were playing catds. Bashir Khan, owner of the house, was sleeping at that time Saduleh Khan, injured also rushed out of his house to the place of occurrence on hearing the cries of the assailants, such as, 'Maro Maro'. The assailants surrounded Saduleh Khan, de eased, and Saduleh Khan, injured, and started beating them with Barchis and lathis. Pir Bux and Gulam Kadar struck blows on the head of Saduleh Khan, deceased, with reverse side of their Barchis. Thereafter, the appellant inflicted a blow on the left side of his neck with the reverse side of his Barchi. Thereafter Munir Ahmad struck blows on the head of the deceased with the sharp side of the Barchi. As a result of these blows, the deceased fell down. Niyamat Khan son of Libdhi Khan struck two laths blows one on the right parietal region and the other on the right elbow of the deceased, while the latter was lying on the ground Saduleh Khan, injured, rushed to the rescuse of the deceased, but at the instigation of Munir Ahmed, Pir Bux and Gulam Kadar, he was beaten by Ghand Khan, Yusuf, Hanif Khan and Bhanwaru Khan with lathis. Bashir Khan and Pir Pux also inflicted blows on the left elbow and head of Saduleh Khan injured respectively, as a result of which the lather fell down After he had fallen, all the assailants started beating him. On seeing his father being beaten by the assailants, Yusuf Khan ran to protect him but he was beaten by Mst. Patasi who inflicted a lathi blow on his left palm Yusuf Khan son of Saduleh Khan injured again tried to intervene but he was caught hold of by one Ibrahim, who advised him not to risk his life The appellant and other assailants went towards their houses after the 'Marpit' was over. After the assailants had goae from the place of occurrence, Yusuf Khan, with the help of other persons lifted up his father Saduleh Khan the deceased, removed them to the police station, Ratangarh, in a Tonga and lodged a report of the incident with the Station House Officer at the said police station on 24th June, 1974, at 2 50 p m. The Station House Officer registered a criminal case on the basis of the report of Yusuf Khan under Sections 148, 307, 326, 323 read with Section 149, I.P.C. and took up the usual investigation into the matter. He got the statement of Saduleh Khan, deceased, recorded by Nagar Mal, S.I. which is Ex. P.88 on the record and which bears the thumb impression of Saduleh Khan. Thereafter, he sent Saduleh Khan deceased and the other injured persons to S.M.J. Hospital, Ratangarh, for medical examination as to their injuries Dr. Prem Prakash Gupta, Deputy Chief Medical Officer, Ratangarh, examined Saduleh Khan, deceased, on 24th June, 1971, and founds the following three injuries on his body: 1. Incised wound 12 cm x 2 11 cm. with fracture of right frontal bone; 2. lacerated wound 8 cm. x2 cm. x 1 cm. on occipital region; 3. contusion 3 cm. x 2 cm. covering right upper eye -lid. Injury No. 1 was grievous and caused by a sharp edged weapon while injuries Nos. 2 and 3 were simple & caused by blur object. Saduleh Khan, diseased was admitted in the Hospital as his condition was precarious The deceased was X -rayed on 2nd July, 1974 and his X -ray plarts are Exs. P. 2 P. 3 and P. 4 which are on the record of sessions case No. 58/'4. X ray examination revealed fracture of his right frontal, parietal bones with radiating of fracture line to right and left orbital bones also. On the same day, i.e. 24th June, 1974, the Doctor examined Saduleh Khan, injured, and noticed the following injuries on his body: 1. incised wound 6 cm X I cm. on occipital region; 2. incised wound 6 cm. X 1 cm. on posterior aspect on upper one fourth of left fore arm; 3. contusion 8 cm. X 3 cm, on back of neck middle; 4 contusion 5 cm. X 3 cm. on left shoulder; 5. contusion 4 cm. X 2 cm. on front of left shoulder; 6. contusion 6 cm. X 2 cm. on lateral aspect of left arm upper 1/3rd; 7. contusion 3 cm. X 2 cm. on lateral aspect of right arm near elbow joint: 8. contusion 10 cm. X 3 cm. on antero -lateral aspect of left side; 9. contusion 8 cm X 4 cm. on left thigh front 6 cm above left knee; 10. lacerated wound 1/2 cm X 1/4 cm. on back of first inter -phalangeal joint of left index finger; 11. lacerated wound on 1/4 cm. X 1/4 cm. on back of terminal phalanx of left index finger; 12. lacerated wound 1/4 cm. X 1/4 cm. X 1/4 cm. on pulp of left thumb; 13. contusion 15 cm. x 3 cm. right side chest. Out of these injuries, injuries Nos. I and 2 were simple in nature, caused by -sharp weapon while the other simple injuries were caused by blunt object. On the same day, the Doctor examined Yusuf son of Saduleh Khan, injured, and found one contusion 4 cm. x 3 cm. on the back of left hand at second, third & fourth metacarpal The injury was simple and caused by blunt weapon. As the condition Saduleh Khan, deceased, was deteriorating, Shri Chaman Lal Bajaj, Munsiff Magistrate, Ratangarh was called upon to record his dying declaration in the presence of Dr. Prem Prakash Gupta. The Doctor certified that the deceased was in a fit condition to give his statement. Shri Chiman Lal recorded the dying declaration, which is Ex. P.9 on the record and which bears the thumb -impression of Saduleh h Khan, deceased. A medical board consisting of other Doctors was constituted by the Chief Medical and Health Officer, Ratangarh, to examine the injuries on the body of the deceased and Saduleh Khan, injured. The Doctors examined their injuries and gave a separate finding on 3nd July 1974, which is Ex. P.16 on the record of sessions case No. 58/74. Saduleh Khan died in the hospital on 4th July, 1974. The Doctor informed the station House Office about his death vide his letter Ex. P.10 of sessions case No. 587/74 in which he, by mistake, wrote the date of his death as 4.6.74' instead of '4.7.74' Upon Saduhleh khan's death, Dr. Prem Prakash Gupta performed post -mortem examination on 4th July 1974 at 9.45 P.M. in the hospital mortuary and found the following external injuries: 1. longitudinal scar 10cm. x 1/5 cm. on right frontal and parietal region; 2. 7 1/2 cm. x 1/5 cm oblique scar In occipital region He opened the scalp over aponeuiosis and found that there was haematoma extending from frontal to occipital bone and from left temporal to right temporal bone There was sub -apoaeurotic haematoma on the fracture site There is right frontal and parietal region sight, extending to left fontal and parietal region also 8 cm linear cut (fracture) of right frontal and parietal bones and then fractume 1 1/2 cm on each side of thu linear fracture, length about 13 cm each and then fracture, line further extending to right orbital and left oibital region and another fracture line going to left frontal, left parietal and then to right parietal bone. Extra dural htematoma on right frontal parietal region extending to left side also. Sub -dural haematoma on both fontal -parietal and temporal regions. There was 3 cm X 1/5 cm. cut on durameter of frontal region. 6 cm. X 4 cm. Laceration of right frontal tobe of brain with congestion around it. There was haematoma formation right middle cranial fossa also. In the opinion of the Doctor, Saduleh Khan, deceased, died of fracture of the right and frontal parietal bones caused by shrao -edged weapon. The fracture -line produced two separate pieces of right frontal bone further, radiating to right orbital, left orbital left frontal and left parietal and then to right parietal bone and laceration of right frontal bone of brain leading to coma and death. Tne Doctor definitely opined that injuries Nos. 1 and 2 in his injury leport Ex P. 5 which is on the file of Sessions case No. 58/74 had aussed the above fracture and his effect and were sufficient in the ordinary cuarse of nature to cause the death of the deceased. When Dr Prem Prakash coses performing the post -mortem examination on the deid body of the deceadid, Dr. B.N. Bnargava and Dr. V.K Bhagava came in the mortuary and closed to the former that they were asked by the Chief Medical and Health Officer, Ratangarh, to attend the post -mortom eximination and to give their findings. These two Doctors have given their separate findings.
(3.) DHANPAT Singh, Station House Officer, Ratangarh, inspected the she and prepared a site -plan and a site -insptction memo. He took the blood -suained clothes of the deceased andthe or her injured person into his possession and sealed them pre perly in the presence of Moibirs He arrested the appellant and recovered lathis from the possession of some of them at their instance and iu consequence of their information recorded under Section 27 of the Evidence Act. After collecting other necessary evidence the Station House Officer, Ratangarh, submitted a charge -sheet against other assailants except the apptllant in the court of the Ch. Judicial Magistrate, Churu, Under Section 302 307, 324, 323, and 148 read with Section 149 IPC. As the appellant was rving in the Army, the Investigating Officer could not procure his attendance at the time when the chailan was filed up by him against the other assailants. Later on. when the appellant was arrested, a charge -sheet was submitted against him in the court of the Ch, Judicial Magistrate, Ghuru, for offences under Sections 302, 307, 148 and 324 lead with Section 149, IPC The learned Magistrate pei used the papers submitted along with the chalan and, upon finding a prima -facie case exclusively triable by the Court of Sessions, committed the appellant to the court of the Additional Sessions Judge for trial for the of re -said offences. The Additional Session Judge Churu, acquitted the appellant -of all the aforesaid charges but convicted him under Section 123, IPC and sentenced him in the manner stated above.;