N.C.SHARMA, J. - (1.) THIS judgment will decide D.B. Criminal Appeal No 9/6 of 1976 filed by Dayal and three others against their conviction under Section 325 read with Section 149 and also under Section 147, IPC by the Sessions Judge, Merta on November 10, 1976, D.B. Criminal Appeal No, 103 of 1977 filed by Gheesa Ram and Mukna Ram complainants against Dayal and five others against outright acquittal of Raghunath and Mool Chand and acquittal of remaining three accused for the offence under Section 302, IPC and also the State D B. Criminal Appeal No 104 of 1977 against the acquittal of Dayal and three other accused of the offences charged under Section 302 and Section 302 read with Sections 149 and 114, IPC by the said Sessions Judge in consolidated Sessions Cases Nos. 49 of 1975 and 26 of 1976 of this Court.
(2.) FACTS leading to the filing of these appeals are that on December 12, 1974 at about 500 p.m. Bhagirath deceased, Hema Ram, Gheesaram and few others were sitting on a Chabutri of Hanuman Purohit in village Sabalpur, Tehsil Parbatsar. District Nagaur. At that time Dayal, Jeewan, Misariya, Bhuraram, Raghunath, Nathmal and Mool Chand came there armed with lathies and immediately thereafter Dayal inflicted a lathi blow on the head of Bhagirath. Nathmal gave the second lathi blow on the head of Bhagirath. Other accused persons also started beating Bhagirath by lathies. Hemaram and Gheesaram, who were sitting on the Chabutari, raised an alarm and on hearing the noise, Amarsingh, Rajendra Singh, Bhanwar Lal and Muknaram came to the place of occurrence and on being scolded by Amar Singh, the assailants went away inside the house of Misariya accused. Bhagi Rath was made to lie on a cot but he died soon after. Gheesaram asked Muknaram to lodge a report in the police and accordingly a telegram was sent to the police. After necessary investigation, the police filed a charge -sheet against Dayal, Misariya, Bhura, Raghunath, Jeewan, Moolchand and Ors. . As the complainants were not satisfied with that, they filed a private complaint against 12 persons in the Court of the Judicial Magistrate, Parbatsar for the offence punishable under Section 302, IPC. Both the cases filed by the police as well as by the complainants were committed by the Judicial Magistrate for trial to the Court of Sessions and since they related to the same incident, they were consolidated by the Sessions Judge, Merta and a common trial was held. After trial the Sessions Judge held that the presence at the time of and participation of Moolchand and Raghunath in the incident was highly doubtful. According to him, it were Dayal, Jeewan, Misariya, Nathmal and Bhura who had come on the spot to beat Bhagirath and they gave beating to the latter. The Sessions Judge held that the deceased side and the accused party had long standing enmity between them and several litigations had taken place amongst them The accused party had come to the place of occurrence only with an intention to give a beating to Bhagirath by forming an unlawful assembly. Their intention was not to murder Bhagirath in as much as only one lathi blow was inflicted on the head of Bhagirath. The accused inflicted only one lathi blow each on Bhagirath and it was only by chance that one of the blows inflicted by any of the five accused happened to strike on his head. It was not established in the case as to which of the accused inflicted the head injury on Bhagirath. The Sessions Judge, therefore, did not held any of the accused guilty for the offence under Section 302 IPC. He only hold four accused persons named Dayal, Jeewan, Misariya and Bhura guilty for the offence under Section 325 read with Section 149 IPC and also under Section 147 IPC. Each of these four acccused were convicted for the said offences and sentenced to undergo rigorous imprisonment for five years and one year respectively for the two offences and the same were to run concurrently. Nathmal accused had died pending trial. Mool Chand and Raghunath were given benefit of doubt and acquitted of all the charges. The four convicts have filed D.B. Criminal Appeal No. 916 of 1976 against their conviction under Sections 325 read with Section 149 and Section 147, IPC D.B Criminal Appeal No. 104 of 1977 has been filed by the State against the acquittal of the four accused for the offences under Section 302 and Section 302 read with Sections 149 and 114 IPC. Complainants Gheesa Ram and Mukna Ram have filed D.B. Criminal Appeal No. 103 of 1677 against outright acquittal of Mool Chand and Raghunath and acquittal of Daval, Jeewan, Misariya and Bhura for the offence under Section 302 IPC. All these three appeals were heard by us together. The learned Sessions Judge, Merta held that it was very well established that there was enmity between Bhagirath deceased and some of the prosecution witnesses on the one part and the accused on the other side. A litigation had taken place between Bhagirath deceased and Hema Ram PW 2 on the one side and the accused Jeewan and Bhura regarding boundry dispute of fields. Mool Chand had contested election for the office of Sarpanch against Gheesa Ram PW 5. Amar Singh PW 3 admitted that there were two parties in the village one of Mool Chand and his party men and the other of deceased Bhagirath and Ors. . Amar Singh PW 3 had also himself launched a criminal case against Misariya accused. Mool Chand had launched a criminal case against Bhanwar Lal, PW 7 regarding theft of a camel Amar Singh PW 3 had also launched a criminal case under Section 447 IPC against Misariya in which Bhanwar Lal was witness from the side of Amar Singh. Bhagirath deceased had also filed a criminal complaint under Section 107 Cr. PC against Dayal, Jeewan, Misariya, Nathmal and Ors. and also a civil suit against Misariya. There were also some other litigations between them. From the evidence of prosecution witnesses Amar Singh, Rajendrasingh, Bhanwar Lal, Mukna Ram, the Sessions Judge inferred that the presence of Mool Chand and Raghunath and their participation in the incident was doubtful. The Sessions Judge also held that Amar Singh, Rajendra Singh and Bhanwar Lal were not eye -witnesses to the incident as the incident was over before they arrived on the spot. He reached the conclusion that the prosecution witnesses Hema Ram PW 2 and Gheesa Ram PW 5 can be accepted to the extent that Dayal, Jeewan, Misariya, Bhura Ram and Nathmal participated in the incident. The Sessions Judge referred to the evidence of Dr. Manohar Lal, PW 1 who had conducted the autopsy of the deceased and who had deposed that injuries Nos. 2, 3 and 5 can be sustained by a single blow and injury No. 1 can be sustained by a fall on the ground. Taking that into account, Bhagirath deceased had sustained four or five injuries. According to the Sessions Judge, it was not established as to which of the accused had inflicted the head injury on Bhagirath and, therefore, it could not be held that the common object of the accused persons was to murder Bhagirath. According to him, the common object of the unlawful assembly was only to give a beating to Bhagirath and it was per chance that one of the injuries on the head sustained by Bhagirath proved to be fatal. The Sessions Judge, therefore, only convicted and sentenced the accused persons Dayal, Jeewan, Misariya and Bhura under Section 325 read with Section 149, IPC and under Section 147, IPC.Mool Chand and Raghunath were acquitted of all the charges. The above named four accused were acquitted of the offence under Section 302 or under Section 302 read with Section 149, IPC. As already stated, Nathmal had already died.
(3.) IT is clear from the evidence of Dr. Manohar Lal, PW 1 that he performed the post -mortem examination of the body of deceased Bhagirath. He found the following seven external injuries - - [1] Abrasion 1' x !/2' on right shoulder; [2] Lacerated wound 2' x 1/2' bone deep on right parietal; [3] Lacerated wound 2' x 1/2' by bone deep on right parietal; [4] Lacerated wound through and through tearing the ear size 1' x 1/2' upper half of right ear; [5] Lacerated wound 1' x 1/2' by bone deep on posterior aspect of right ear; [6] Contusion of half of right ear; [7] Contusion length 2 -3/4' x 1 -1/4' from right xygone of right ear. On internal examination, the doctor found injuries on scalp containing lot of clotted blood on the base of injuries Nos. 2, 3 and 5. There was multiple fracture of right perietal bone below injury No. 3 and fracture of ramus of right mandible and mastoid processes was seen. Membrances were torn below injury No. 3 due to fractures and ends of right parietal bone causing tear, brain injured and coming out from membrance in base of injury No. 3 on right parietal region. The cause of death of Bhagirath was fracture of right parietal bone below injury No. 3 causing tearing of membrance and injury to brain. Dr. Manohar Lal has admitted in his cross -examination that internal injuries on the righ scalp and the fracture of parietal bone were the result of external injuries Nos. 3, 4 and 5 which could be result of single blow injury No. 1 could be the result of a fall on a hard object. Thus it is clear that not more than five lathi blows were inflicted on deceased Bhagirath.;