K.D.SHARMA, J. - (1.) THIS appeal by Munir Ahmed, Pir Box, Bashir Khan, Hanif Khan, Bhanwaru Khan, Ghand Khan, Yusuf Khan and Mst. Patasi is directed against the judgment of the Additional Sessions Judge, Churu, dated 27th June, 1975, convicting the appellants as under: 1. Munir Ahmed under Section 304 Ten years' Rule I.Part I, I.P.C. and a fire ofRs. 1010/ -, in de -fault one year's further Rule I.2. Pir Box )under Section 324, I.P.C. Each sentenced totwo 5 ears Rule I.3. Bashir Khan)under Section 323 I.P.C.4. Hanif Khan ) ) each convicted under) Section5. Bhanwaru Khan ) 323, I.P.C. and sentenced) to one year's rigorous6. Chand Khan ) imprisonment7. Yusuf Khan ) 8. Mst. Patasi under Section 323I.P.C. Six months' rigo -rous imprisonment
(2.) THE prosecution case against the appellants was as follows : On 24th June, 1947, at about 1.30 pm. Allahdin son of Saduleh khan, deceased, was standing beneath a tree of 'Tall' (sheesham), Niyamat 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 this by Allahdin and began to abuse the latter. At that time Saduleh khan, deceased was sitting inside a nearby house of Saduleh Khan S/o Jasu Khan, hereinafter referred to as Saduleh Khan, injured. On haring 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 Allahdir, as a result of which the latter, being a lame person, fell dow. Mst Haliman on seeing Allahdin being pushed in a violent manner, rushed to the pot and enquired from Niyamat son of labdhi Khan as why he was beating a lame person. Thereupon, Niyamat son of labdhi khan cried fin aloud tone that he would beat him. On hearing his cries, the appellants and Niyamat Khan son of Ahmed Ali khan and Niyamat Khan son of Labdhi khan and other persons having armed themselves with Barchis and lathis came from the house of Manuddin khan which Jay adjacent to the tree of 'Tali'. Munir Ahmed, Gulam kadar, Pir buz, bashir khan appellants and Niyamat son of Ahmed khan had Barchis in their had while the other appellants an niyamat Khan son of labdhi khan, who has not preferred any appeal were armed with lathis. On seeing the appellants and niyamat Khan son of Ahmed Khan reaching the spot, also came out of a nearby house of Bashir khan, where in they were playing cards. 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 appellant, such as, 'maro maro'. The appellants, Niyamat Khan son of Ahmed Ali khan and Ali khan and Niyamat Khan son of Labdhi Khan surrounded Saduleh Khan deceased and Saduleh khan, injured, and started beating them with Barchis and lathis, Pir Box appellant, appellant and one Gulam kadar struck blows on the head of Saduleh khan, deceased, with the reverse side of their Barchis. Thereafter, Niyamat khan son of Ahmed Ali Khan inflicted a blow on the left side of the neck with the reverse side of his barchi. Thereafter, Munir, Ahmed appellant struck blows on the head of the deceased with the sharp side of the barchi. As a result of theise blows, the deceased fell down. Niyamat khan son of Labdhi Khan struck two lathi blows one of the right parietal region and the other of the right elbow of the deceased, while the latter was lying on the other on the right elbow of the deceased, while the latter was lying on the ground. Sadhuleh Khan, injured, rushed to the rescue of the deceased, but at the instigation of Munir Ahmed, Pir Box, appellants and one Gulam Kadar, he was beaten by Chand khan, Yusuf, hanif khan, and Bhanwaru khan appellants with lathis Bashir khan and Pir Bux appellants also inflicted blows on the left elbow and bead of Saduleh Khan injured respectively, as a result of which the latter fell down. After he had fallen all the appellants started beating him. On seeing his father being beaten by the appellants and Niyamat Khan son of Ahmed Khan yusuf Khan ran to protect him but he was beaten by Mst. Patasi appellant who inflicted a lathi blow on his left palm Yusuf khan S/o 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 appellants, Niyamat son of Ahmed Khan and Niyamat Khan son of Lasbdhi Khan went towards their houses after the 'Marpit' was over. After the assailants had gone from the place of occurrence Yusuf Khan with the help of other appellants lifted up his father Saduledh Khan and the deceased, and removed them to the police station of 24th June, 1974, at 2.50 pm. 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, Section 1 which is Ex. P. 28 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, 1974 and found the following three injuries on his body: 1. Incised wound 12 cm x 2 cm x 1 1/2 cm. with fracture of right frontal bone. 2. lacerated wound 8 cm x 2 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 and caused by blunt object. Saduleh Khan, deceased, was admitted in the Hospital as his condition was precarious. The deceased was X -rayed on 2nd July, 1974 an d his x -ray plates are Exs. P. 2, P 3 and P. 4. X -ray examination revealed fracture of his right fronal, parietal bones with radiating of fracture line to right and left orbital bones also. On the same day, i.e., 24th June 1971, he examined Saduleh Khan, injured, and noticed the following injuries on his body. 1. Incised wound 6 cm. x l cm. x 1 cm. on occipital region; 2. Incised wound 2 cm. x 1 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. cm left thigh front 6 cm. above left knee; 10. lacerated wound on 1/2 cm. X 1/4 cm. x 1/4 cm. back of first inter phalangeal joint of left index finger; 11. lacerated wound on 1/4 cm. X 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 on pulp of thumb; 13. contusion 15 cm. x 3 cm. on right side chest. Out of these injuries Nos. 1 and 2 ware simple in nature, and 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 back of left hand at second and third and fourth metacorpal. The injury was simple and caused by blunt weapon. As the condition of Saduleh Khan, deceased, was deteriorating, Shri Chaman Lal Bajaj, Munsiff -Magistrate, Ratangarh was called for 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 Chaman Lal recorded the dying declaraton, which is Ex. P. 9 on the record and which bear the thumb impression of Saduleh Khan, deceased A medical board consisting of other Doctor 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 3rd July, 1974 which is Ex P. 61 on the record Saduleh Khan died in the hospital on 4th July, 1974. The Doctor informed the Station House Officer about his death vide his letter Ex. P. 10 in which he, by mistake, wrote the date of his death as'4 6 -74' instead of '4 -7 -74' Upon Saduleh Khan's death, Dr. Prern 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 10 cm. x 1/5 cm. on right frontal and parietal region. 2. 74 cm. x 1/5 cm. oblique scar in occipital region. He opened the seal over aponeurosis and found that there was haematoma extending from frontal to occipital bone. There was sub -aponeurotic haematoma on the fracture site. There was right frontal and parietal region slightly extending, to left frontal and parietal region also. 8 cm linear cut (fracture) of right frontal and parietal bones and then fracture, 11 cm. on each side of this linear fracture, length about 13 cm each and then fracture right line further extending; to orbital and left orbital region and another fracture line going to left frontal,' left parietal and then to right parietal bone. Extra dural haematoma on right frontal parietal region extending to left side also Sub dural haematoma extending on both frontal parietal and temporal regions. There was 3 cm. x 1/5 cm. cut on durameter of frontal region 6 cm x 4 cm. Iacertation of right frontal lobe of brain with congestion around it. There was haematoma formation right middle cranial fossa also. In the opinion of the Dr. Saduleh Khan deceased, died of fracture of the right and frontal parietal bones caused by sharp 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 bones and laceration of right frontal bone of brain leading to coma and death. The Doctor definitely opined that injuries Nos. 1 and 2 in his injury report Ex P 5 had caused the above fracture and its effect and were sufficient in the ordinary course of nature to cause the death of the deceased. When Dr. Prem Prakash was performing the post -mortem examination on the dead body of the deceased, Dr. B.N. Bhargava and Dr. V.K. Bhargava came in the mortuary and disclosed to the former that they were asked by the Chief Medical and Health Officer, Ratangarh, to attend the post -mortem examination and to give their findings. These two Doctors have given their separate findings.
(3.) DHANPAT Singh, Station House Officer, Ratangarh, inspected the site and prepared a site -plan and a site -inspection memo. He took the blood stained clothes of the deceased and the other injured persons into his possession and sealed them properly in the presence of Motbirs. He arrested the appellants and recovered lathis from the possession of some of them at their instance and in consequence of their information's recorded under Section 27 of the Evidence Act. After collecting other necessary evidence, the Station House Officer submitted a charge -sheet against all the appellants and Niyamat Khan S/o Labdhi Khan and Gulam Kadar and others in the court of the Chief Judicial Magistrate, Churu, under Section 302, 307, 324, 323 and 148, read with Section 149, I.P.G. As Niyamat Khan son of Ahmed Khan was serving in the Army, the Station House Officer could not procure his attendance at the time when the challan was filed by him against the appellants and others. Later on, when Niyamat Khan son of Ahmed Khan was arrested, a charge -sheet was submitted against him in the court of the Chief judicial Magistrate, Churn, under Sections 302, 307, 148 and 324 read with Section 194, I.P.C. 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 Judge, committed all the appellants, Niyamat Khan son of Labdhi Khan and Gulam Kadar and others to the court of the Additional Sessions Judge, Churn, for trial for the aforesaid offences'. The Additional Sessions Judge Churu, tried them and while acquitting Gulam Kadat, Murad Khan, Mori Khan, Usman Khan and Mazid Khan accused, convicted and sentenced the appellants in the manner indicated above;