D. L. MEHTA, J. - (1.) THE appeal is directed against the judgment of the Learned Additional Sessions Judge, Gangapur City (Sawaimadhopur) dated Jan. 29,1987, by which appellants Ramhet, Swaroop @ Ram Swaroop, Dhanna. Deepa & Deep Chand and Khilari were convicted under Sections 302 & 302/149 325/149, 147, & 323/149 IPC and each was sentenced to various terms of imprisonment including that of imprisonment for life under Sections 302 & 302/149 IPC.
(2.) BRIEFLY stated the prosecution case is that at about 12. 05 PM. on 17. 1. 84. P. W. 1 Gordhan appeared at Police Station, Mandawar, district Sawaimad- hopur and presented a written report, Ex. P/1. ft was stated therein that he was residing with his family in Gram Kesara. The appellants and their associates were on inimical terms with him. In the morning at about 8. 00 AM. on 17. 1. 1984 when Gordhan was coming from the well to his house, some of the accused meet him in the way. They struck some blows to him. Gordhan came to his house and just after that the appellants accompanied by 5 more persons came there armed with lathies, farshas and other lethal weapons. They started beating Gordhan and other members of the family. Giliya and Moolya who were brothers of Gordhan came to intervene. Giliya was struck blows with lathi and Farshi Giliya fell down. The police registered a case under Section 307 and 149 IPC. Giliya however did not survive and passed away. The police converted the case into that under Sec. 302 IPC and proceeded with the investigation. The post-mortem examination of the dead body of Giliya @ Gilaram was conducted on 18. 1. 1984 by PW 8 Dr. Chandra Shekhar, the then Medical Jurist, S. M. S. Hospital, Jaipur. He noticed the following two injuries over the deceased's dead body: 1. Lacerated wound 2 cm x 3/4 cm x skull bone deep obliquely placed on Rt. front parietal junction clotted blood present on it and diffuse swelling on mid parietal and Rt. frontotemporal region, Right eye is Black eye with sub-conjectural haemorrhage upper 1/2 and clotted blood in both nostrils. 2. Abrasion with scab 2 cm x 1 cm on medial end of Rt. clavicle. Dr. Daga was of the opinion that the cause of death was Coma brought about as a result of injury to the skull and brain. The injury report issued by him is Ex. P. 4. The accused persons were arrested and in consequence of the information furnished by them lathies etc. were recovered. On the completion of investigation the police submitted a challan against 5 appellants and 5 other persons in the court of Addl. Munsif and Judicial Magistrate, Hindon City, who in his turn committed the case for trial to the court of Sessions. The learned Additional Sessions Judge framed charges under sections 147, 148, 302/149, 325/149 and 223/149 IPC against all of them, to which they pleaded not guilty and faced trial. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, the accused examined one witness. On the conclu-sion of the trial, the learned Addl. Sessions Judge found no incriminating evidence against 5 accused namely Mangla, Marina, Dhanna Ram, Chandra and Murli. They were, therefore, acquitted. However, the learned Sessions Judge held the charges duly proved against the present 5 appellants. They were consequently convicted and sentenced as mentioned at the very out set. Aggrieved against their conviction the accused have come up in appeal. We have heard Shri N. L. Tibrewal, learned counsel for the appellant and the learned Public Prosecutor, Shri O. P. Sharma. Mr. Tibrewal, learned counsel for the appellants did not challenge the incident and the role assigned to the 5 appellants. The only submission made by him is that from the proved facts, no offence under Section 302 I. P. C. is made out against any of the appellants. It was argued that deceased victim Giliya sustained only 2 injuries. One was on the right clavicle, which was not at all dangerous. Only injury No. 1 found on the head was stated to be dangerous to life by Dr. Daga. It was argued that in these circumstances of the case it cannot be said that accused Deepa who is said to be the author of the fatal injury to deceased Giliya, had any intention to cause his death. According to all the eye witnesses Giliya had come only to intervene and give assistance or help to his brother and other members of the family. In these circumstances it would not be free from risk to maintain conviction of the appellants under Section 302 or 302/149 IPC. In support of his contention, Mr. Tibrewal placed reliance on Gurmail Singh v/s State of Punjab (1) and Gulam Hussain v/s State of Raj. Mr. Tibrewal did not challenge the conviction of the appellants under other sections. In reply, the learned Public Prosecutor tried his best to support conviction of the appellants under Section 302 or 302/149 IPC.
(3.) WE have taken the respective submissions into consideration. Since the incident has not been challenged, the only question, which survives for our con-sideration relates to the nature of offence. Admittedly, according to all the eye witnesses, deceased Giliya came to intervene when his brothers and other family members were assaulted by the appellants. In these circumstances it cannot be said that the appellants or any of them had any intention to commit murder of Giliya. In Gurmail Singh's case (supra) a similar situation arose, where one came to intervene and was struck a blow which resulted in his death. Their Lordships held that even though clause - Thirdly could be attracted of S. 300, yet the offence falls under Second part of Sec. 304 IPC because the guilty intention to kill Giliya is missing. In Gulam Hussain's case (supra) a similar view was expres-sed and it was held that when some body comes to inter-venue and is struck blows resulting in his death, it cannot be said that the accused had intended to cause his murder. As discussed above, the appellants could have no intention to cause murder of Giliya. They had also no intention to cause such bodily injury, which was sufficient in the ordinary course of nature to cause death. WE are, therefore, of the opinion that the observations made in Gurmail Singh's case (supra) fittingly apply to the case in our hand. The offence made out, therefore, does not fall within any of the clauses of Section 300 IPC. The offence made out falls under the Second Part of Sec. 304 IPC as against accused appellant Deepa @ Deep Chand. As regards unlawful assembly, there is no material on record to show that the appellants had formed any unlawful assembly with the common object of committing murder of Giliya. As such the conviction of appellants Swaroop, Dhanna, Ramhet and Khilari under Sec 302/149 IPC cannot be maintained. As regards conviction of the appellants under other sections, no con-tention was raised before us. We, therefore, need not discuss the convict on of the appellants under the other sections of the penal code. ;