K.D. Sharma, J. - (1.) THIS appeal by Prem Singh is directed against the judgment of the Session judge, Jodhpur, dated 4th June, 1997, convicting him for the offence punishable under section 304 Part II, IPC and sentencing him to undergo rigorous imprisonment for six years. The incident that led to the arrest and prosecution of the appellant may be briefly stated as follow: On 8th July, 1976, at about 9 a.m. Himant Singh son of Anand Singh, deceased, came to know that Fateh singh, Bhoor Singh, Dungar Singh and Prem Singh, appellant, were ploughing his field with the aid of a tractor Himmat Singh informed his father anand Singh about unauthorised ploughing of their field by the aforesaid person. After informing his father Himmat Singh rushed to his field. In the way, he met Bahadur Singh who accompanied him to the field. When Himmat Singh and Bahadur Singh reached there in the field, they saw Fateh Singh, Bhoor Singh and Dungar Singh, and Prem Singh, appellant, ploughing the field with the help of a tractor. Himmat Singh asked the driver of the tractor ton to plough his field. The driver replied that he did not know that the land was a disputed one. Saying this, the driver took away the tractor from the field. Fateh Singh, thereupon, told Himmat Singh that he would plough the land with the aid of bullocks Meanwhile, Anand Singh, deceased, and surajbhan Singh also came in the field. Anand Singh asked Fateh Singh whether the latter had obtained any order relating to the possession of the field Fateh Singh, resented his intervention and directed his sons, namely, Prem Singh appellant and Dungar Singh to bring their truck to the field to kill Anand Singh and Himmat Singh. Thereupon, Prem Singh and Dungar Singh went away from the field for bringing their truck, while Fateh Singh and Bhoor Singh stayed in the field. After some time, Prem Singh and Dungar Singh returned in a truck. Prem Singh, appellant, was driving the track while Dungar Singh was sitting by his side in it. The appellant drove the truck towards Anand Singh and Himmat Singh Anand Singh tried to save himself from being run over by the truck, but he was pushed toward the truck by Fateh Singh. As a result of the push, Anand Singh fell under the truck and Himmat Singh received injuries on his left thigh and hand on account of these parts of his body having come into contact with the moving truck. There after, Himmat Singh and Bahadur Singh lifted of Anand Singh & made him sit down on heap of stones which was lying in the field, premsingh appellant came back in the truck to the place where Surajbhan Singh and Anand Singh were sitting. Dungar Singh handed over a bamboo lathi to Bhur Singh upon the body of Surajbhan Singh which hit the latter on his left hand -finger. Then Surajbhan Singh snatched the lathi from his hand. Thereupon, Dugan Singh gave a Dharia to Bhoor Singh from the truck. Bhoor Singh made an attack on Anand Singh with the Dharia & struck a blow on his head, Bhoor Singh inflicted another blow on the head of Surajbhan Singh with the reverse side of Dharia. Surajbhan Singh tried to word off the blow by wielding his lathi but he received an injury on head. The appellant then drove the truck after Himmat Singh but the latter jumped over the wheel. Prem Singh appellant then pursued Bahadur Singh but Bahadur Singh also ran away. The appellant then came back and drove the truck towards Anand Singh, who was sitting on the heap of stones. Anand Singh was again run over by the truck. The appellant then drove the truck from the field. As Anand Singh had sustained serious injuries he was lifted up by Himmat Singh and Bahadur Singh to a place on the road outside the field where he died after 1 1/2 hours. A written report of this incident was made by Himmat Singh to the Station House Officer, Bilara, the very day it 12:20 p.m. The Station House Officer, Bilara, registered a criminal case under section 2, I.P.C. on the basis of the report and made the usual investigation in to the matter. He rushed to the hospital at Bilara in the first instance and seized the truck RJQ 9790. The truck was brought to halt in front of the hospital. He inspected the truck and found glasses of the wind -screen and left -window broken. He noticed blood on the tyre and rim of its left wheel. The size of the blood stains on the are was 17" long and 6" wide. He took off the tyre and the rim and seized them in the presence of Motbirs. He caused the blood stained portion of the rubber tyre to the taken off for being sent to the Chemical Examiner and prepared a seizure memo Ex. P. 16. There after Devi Lal. S.H.O. rushed to the place of occurrence and prepared a site plan and a site impaction memo and Panchnama of the dead body of Anand Singh Inside the field he found bloodstained stones and earth. He took them into his possession. Apart from these articles, he saw one broker, Dharia one broken lathi, one towel of the deceased having blood stains on it and two gunny bass of Jawar and the shoes of the deceased. He took all the articles into his possession and called for Dr. Mahesh Chandra Vyas, Medical Officer, Government Dispensary, Bilara, for post -mortem examination on the dead body of Anand Singh Dr. Mahesh Chandra Vyas conducted an autopsy over the dead body in the farm of he deceased between 5 and 6 p.m. on 28th July, 1976 and found the following injuries: - 1. fractured dislocation of the middle half of the sacrum right part with injuries to nerves and vessels;
(2.) LACERATED wound 2" x ¼" x 1/2" size, irregular lacerated wound on the scalp left parietal eminence posterior aspect; Abrasion 4" x 3" size on the lower part of chest middle axillary -line. In the opinion of the Medical Officer, the death of Anard Singh recurred on account of shock due to hemorrhage caused by rupture of vessels in the perennial region and femoral vessels in the right side. As for it jury No. 1 the Doctor opined that it was sufficient in the ordinary course of name to cause the death of the deceased Likewise, the Doctor observed that injury No. 3 could be received if any part of the truck came into contact with that part of the body of the deceased which is described in injury No. 3. Injury No. 2, in his opinion, could be caused by any blunt weapon, such as reverse side of Dharia or its wooden handle. The Doctor examined Himmat Singh and Suraj Bhan Singh on 28th July, 1976, respectively and found the following injuries on their bodies; - injuries of Himmat Singh: 1. bruise with Abrasion 4 1/2" x 2 1/2" on the mid of the left thigh posterior lateral aspect. If was a simple injure caused by blunt weapon; 2. bruise 1" x 1/2 in the right fore -arm near elbow joint. It was a simple injury caused by blunt weapon. The duration of injuries as more than 6 hours prior to the examination. injuries of Suraj Bhan Singh: 1. lacerated wound 1" x ¼" x ¼" on vertex of head. It was simple injury caused by a blunt weapon 2. lacerated wound 1 c.m. to ¼ c.m. on distal phalynx on left index finger; 3. lacerated wound ¼" x ¼" on distal phalynx left index finger. It was simple injury caused by a blunt weapon. The duration of the injuries was more than 24 hours prior to the examination. All these injuries could be received from reverse side of Dharia or the wooden handle of Dharia. 2. Fateh Singh, Prem Singh, Dungar Singh and Bhur Singh accused also received injuries in the course of the incident. They also were examined by Dr. Mahesh Chandra Vyas on 28th July, 1976. Upon examination, the Doctor found the following injuries on their bodies: - - Injuries of Fateh Singh: 1. bruise with Abrasion fracture on right zygomatic bone 1 1/2" x ¼" on zygomatic process and below right eye. It was simple injury. The Doctor advised X -ray for zygomatic bane of Fateh Singh. 2. bruise 10" x 1/2" on back lower part. It was simple injury caused by a blunt weapon Injuries of Prem Singh: 1. lacerated wound 1 c.m. x 1/3 rd c.m. x 1/3rd c.m. on the right elbow joint posterior aspect. It was simple injury caused by a blunt weapon Injuries of Dungar Singh: 1. lacerated wound 2" x ¼" x ¼" on scalp frontal region left side. It was a simple injury caused by a blunt weapon; 2. bruise 1 1/2" X 1/2" on right arm middle anterior aspect. It was simple one caused by a blunt weapon; 3. bruise 2" x 1/2", two inches above right elbow joint on right arm posterior aspect. It was simple injury caused by a blunt weapon. Injury of Bhoor Singh: - - 1. Abrasion 1/2" to 1/3rd distal phaiynx right little finger; 2. The duration of injuries of all the four accused was about six hours. It will not be out of place to mention that Fateh Singh accused also lodged a first information report of the incident with the Station House Officer Bilara on 23rd June 1976 at about 12 a.m. which is Ex. D. 4 on the record and where in he stated that he and his sons Dungar Singh and Prem Singh and his brother Bhoorsingh were beaten by Himmatsingh, Anandsingh deceased Bahadursingh Surajbhansingh and Gangasingh, Shri Devilal Station House Officer registered a criminal case u/s. 147, 148, 447, 427 and 323 I.P.C. on the bass of the report made by Fatehsingh. 3. Devi Lal, Station House Officer collected other necessary evidence in the case instituted on the report of Himmat Singh and, eventually, submitted a charge sheet against Fateh Singh, Bhoor Singh, Dungar Singh and Prem Singh, appellant, in the court of Munsiff cum Judicial Magistrate, Bilara, under section 302 read with section 34 and section 323. IPC. The learned Magistrate perused the papers submitted along with the challan and, upon finding a prima facie case exclusively triable by the court of the Sessions, committed all the accused including the appellant to the court of Sessions judge, Jodhpur, for trial, for the aforesaid offences. The Sessions Judge tried the appellant and the other co -accused and came to a conclusion that the prosecution could not prove its case against Bhoorsingh, Fateh Singh and Dungarsingh beyond reasonable doubt He, however, found Prem Singh appellant guilty under section 304, Part II, I.P.C. only. Consequently, the Sessions Judge acquitted Fateh Singh, Dungar Singh and Bhoor Singh of all he charges framed against them and while acquitting Prem Singh appellant for the offences punishable under sections 302, 323 and 447, I.P.C. convicted and sentenced him for the offence under S. 304; Part II, I.P.C. Aggrieved by his conviction and sentence, the appellant, has preferred this appeal.
(3.) I have carefully gone through the record of the lower court and heard Mr. V.S. Dave for the appellant and Mr. K.C. Bhandari Public Prosecutor for the State assisted by Mr. M.R. Bhansali for the complainant Firstly, it has been contended by Mr. V.S. Dave, learned counsel for the appellant, that the trial Judge committed an error in holding that the appellant voluntarily crushed Anand Singh, deceased; under left rear wheel of his truck and caused his death. According to the learned counsel the act was not done by the appellant with the knowledge of the likelihood of the actual result caused. The learned Public Prosecutor, on the other hand, argued that it has been conclusively established by the evidence of the eye witnesses that the deceased was run over twice by the appellant and, in this circumstance, the Sessions Judge was justified in holding that there had been a voluntary commission of an offence by the appellant punishable under section 304, Part II I.P.C.;