- (1.) THIS judgment shall also dispose of D. B. Criminal (Jail) Appeal No. 76/86.
(2.) NINE appellants namely, Latoor, Nazir, Mangilal, Sharif, Latif, Farookh Khan, Chhitiar, Hemraj and Jagdish are all convicted for the murder of Surajmal under section 302 read with section 149, IPC and sentenced to Life Imprisonment and a fine of Rs. 100/- each, and in default of payment of fine to undergo two months simple imprisonment, and also under section 148 IPC to two years rigorous imprisonment and a fine of Rs. 100/- each, and in default of payment of fine to further undergo two months simple imprisonment. In addition, appellant (1) Latoor has also preferred a separate appeal from Jail (No. 76/86), which, earlier stated, shall also be disposed of by this judgment. The incident occurred on 25-11-1983 between 5. 30 and 6 00 p. m. near a way side restaurant of Lalchand Sarpanch of Village Mal Bembori, P. S. Mangrole, District, Kota, in which Surajmal sustained some head injuries, for the treatment of which he was taken first to the hospital at Mangrole and then to Kota hospital. Surajmal succumbed to the head injuries in the hospital at Kota on 27-11-1983. The FIR was lodged promptly by Surajmal's brother PW 1 Bhimraj at 7 p. m. at P. S. Mangrole, at a distance of 9 kms, from village Mal Bembori where the incident occurred. Surajmal was examined at Mangrole hospital by Dr. S. A. Rehman PW 8, and his injury report is Ex. PH. According to this medical report, there were two incised wounds on the head of Surajmal, which were on the same side, in addition to a bruise with local swelling also on the head and a superficial abrasion on the right ankle joint. The post mortem report on the dead body of Surajmal, when he died on 27-11-1983, was prepared by Dr. Y. K. Sharma PW 15 The post mortem report is Ex. P. 18. According to the doctor, the cause of death were the head injuries inflicted to Surajmal. The prosecution case rests on the testimony of the eye-witness Bhimraj PW 1, Rambilas PW 2, Ramnarain PW 3, Bachharaj PW 4, Chhaganlal PW 5, Dhannalal PW 6 and Laxminarain PW 7. For corroboration of the direct evidence is the medical evidence and some other circumstances appearing from the evidence. The prosecution case is that deceased Surajmal was standing outside the restaurant of Lalchand along with Rambilas PW 2, while the other eye-witnesses were sitting inside that restaurant at the time of the occurrence when appellant Latoor alone happened to pass that way carrying a lathi with him. Latoor inflicted a lathi blow on the head of Surajmal after which Rambilas PW 2 snatched the lathi from Latoor's hand and was himself injured in the process. Latoor then ran to the nearby Mohalla and returned immediately along with the other appellants carrying a Dhariya himself, while the other appellants were also armed with Dhariya lathis. It is further alleged that thereafter Latoor inflicted a Dhariya blow on the head of Surajmal as a result of which Surajmal fell on the ground and then the appellants Nazir and Chhitar each inflicted a Dhariya blow on the head of Surajmal, while appellant Jagdish inflicted a lathi blow on the right elbow of Rambilas PW 2. The appellants are alleged to have then escaped from the scene. Surajmals brother Bhimraj PW 1 and the other eye-witnesses then carried Surajmal to the Police Station and the hospital at Mengrole for initial treatment and then to Kota for further treatment where he died on 27-11-1983. The defence is substantially of denial and appellant Latoor states that he himself was assaulted by the deceased and the other eye-witnesses. The trial court has convicted and sentenced all the appellants as earlier stated.
(3.) IN our opinion, the appellants can be safely classified into three categories according to the prosecution case itself for the purpose of disposal of this appeal The case against appellant Latoor is by itself in a separate category because there is overwhelming evidence which cannot be doubted for the injuries inflicted to Surajmal, as a result of which he died without recovering consciousness, which were caused by Latoor. IN the second category are the appellants, Nazir (2), Chhitar (7) and Jagdish (9), who are alleged to have inflated some injury to Surajmal and Rambilas PW 2. IN the third category are the appellants Mangilal (3), Sharif (4), Latif (5), Farookh Khan (6) and Hemraj (8) against whom there is no suggestion of any overt act by the prosecution. We shall deal with their cases in the same manner. The case against 5 appellants Mangilal (3), Sharif (4), Latif (5), Farookh Khan (6) and Hemraj (8), who belong to the last 'category, can be disposed of straight away, since we do not find any reasonable basis to sustain their conviction. The prosecution case itself is that they came later on the scene when Latoor returned. No overt act is attributed to any of these five appellants. The prosecution case at the most against them is of mere presence having come to the scene along with Latoor when he is alleged to have returned to the scene. Mere presence at that time and place by itself without any suggestion of any overt act by any of them is insufficient to hold that they were members of any unlawful assembly which is the foundation of their conviction under section 148 and 302/149. IPC. They are, therefore, to be acquitted. According, we set aside the convictions and sentence, of these five appellants, namely, Mangilal (3), Sharif (4), Latif (5), Farookh Khan (6) and Hemraj (8 ). We now take up the case of appellants Nazir (2), Chhitar (7) and Jagdish (9 ). The case against Jagdish is that he came to the scene when Latoor returned to it armed with a Dhariya and at that time appellant Jagdish inflicted a blow on the right elbow of Rambilas with hard and blunt object. The injury report of Rambilas Ex. P. 12 does not show any injury on any part of the body of Rambilas except an injury on the head. The prosecution evidence to this extent cannot, therefore, be accepted and instead of providing corroboration to this part of the prosecution case against Jagdish it actually demolishes the case to that extent against this appellant. Without this further material against appellant Jagdish, his case falls under the same category as that of the five appellants against whom no overt act has been proved on account of which they have been acquitted. The appellant Jagdish (9) is also therefore entitled to be acquitted. We are also of the opinion that it would be unsafe to sustain the conviction of appellants Nazir (2) and Chhitar (7) who are alleged to have inflicted one Dhariya blow each on the head of Surajmal after he had fallen on the ground. This part of the prosecution case is discredited by the medical evidence. The doctor S. A. Rehman PW 8 has deposed that both the incised wounds on the head of Surajmal could result from one blow of a sharp edged weapon. More over the location of the injury is such that it was more likely to have been caused when Surajmal was standing, rather than when he had fallen on the ground. The additional head injuries attributed to appellants Nazir (2) and Chhitar (7) are absent and this also renders the case against them doubtful. We accordingly give the benefit of doubt to appellants Nazir (2), Chhitar (7) and Jagdish (9), and acquit all the three of them of the offence levelled against them and set aside their conviction and sentences. ;