K. S. LODHA, J. - (1.) THE prosecution story, briefly stated, is that deceased Ram Bahadur Rana as also PW 5 V. M. Bhai, and PW 4 N. S. Mali are in the military service and reside in Ratanada, Jodhpur. Smt. Brij Rani is w/o deceased Ram Bahadur Rana. Smt. Hema is w/o V. M. Bhai. Accused Ghewaria carries on a grocery shop in Ratanada a little away from the house of the deceased and Smt. Brij Rani used to make purchases from this shop. Co-accused Badri is a friend of Ghewaria and often sits at that shop. On 13-7-1981, at about 7. 30 p. m. deceased Ram Bahadur Rana and his wife Smt, Brij Rani on one bicycle and V. M. Bhai and his wife Smt. Hema on another bicycle were going to Shiv Mandir. On their way, accused Ghewaria and Badri came on another bicycle & it is alleged that Ghewaria touched the shoulder of Smt Brij Rani and made a vulgar remark "yaha Mal Kaisa Hai. On this, Ram Bahadur Rana got annoyed and appears to have abused the accused. On this, the accused stopped their bicycle a little ahead that of Ram Bahadur Rana and asked Ram Bahadur Rana what the matter was. Ram Bahadur Rana also stopped there and altercation took place between him and the two accused persons, but V. M. Bhai and some other persons intervened; whereupon, Ram Bahadur Rana and Brij Rani as also V. M. Bhai and Smt. Hema turned back to go their house-giving up the idea of going to Shiv temple. But, accused Ghewaria and Badri ran away from the place and immediately thereafter came back running from the opposite side. Ghewaria then gave 2-3 knife blows on the chest of Ram Bahadur Rana and Badri is alleged to have caught hold of Ram Bahadur while the blows were inflicted by Ghewaria. Ram Bahadur fell down and the accused took to their heals. V. M. Bhai and some other persons, who had also collected at the spot, carried the injured Ram Bahadur to the Military Hospital, where Ram Bahadur succumbed to his injuries. It appears that in the meantime a telephonic information had reached the Sub-Inspector Shri Padam Singh of Police Out-post Ratanada to the effect that a military personnel had been stabbed by some-body and had been taken to the Military Hospital in a serious condition. Shri Padam Singh conveyed this message to the Police Station Udaimandir on telephone at 8. 45 p. m. and Shri Avtar Singh recorded this information in the Rojnamcha vide Ex. P. 10. Shri Avtar Singh then proceeded to the Military Hospital, where he recorded the statement of Smt. Brij Rani vide Ex. P. 1 at 9. 25 p. m. and sent that statement to the Police Station, Udaimandir for the case being registered for offence under section 302 read with section 34, IPC. THE dead body of Ram Bahadur Rana was then carried to the M. G. Hospital, Jodhpur, where, the post-mortem examination was carried out by Dr. Shyam Behari Mathur. He found the following injuries on the person of the deceased : " (1) Incised penetrating wound 2 c. m. x 0. 8 cm placed obliquely on chest Rt side and sternum in direction of 2 O'clock position 4 c. m below the Medial End of Rt. Clavicle; (2) Incised penetrating wound l1/2 cm'. x 1/2 c. m. x placed obliquely on chest Rt. side in direction of 2 O'clock position, 1/2 c. m. below the Rt. Aveola; (3) Incised wound 2 cm. x 1/2 cm. x 1/3 cm. placed obliquely on lower lip Rt. side at Vermithori Border; (4) Abrasion 1 cm. x 1/2 cm. on Anterior aspect of middle of left leg. On further exploration of injury No. 1, it was present in 1st Rt. side Intercostal space between central portion of the Ribs. This wound further reached to the Lung (Rt-) which was cut for 1 cm x long x 1/2 cm through and through near the Anterior Border of the Upper Lobe of Rt. Lung This further extended to the Rt. Ventrical near the Avrico Ventricular junction. THE pericardium andpleura Rt. side were also found out in the same plane blood 1003 present in pericardium. On further exploration of the injury No. 2 it was found muscle deep only and not penetrated the Thoracic cavity". According to Dr. Mathur, the cause of death was shock and haemorrhage on account of the injuries on vital organs, i. e. , heart and right lung. THE heart injury and right lung injury individually were sufficient to cause death in the ordinary course of nature. It appears that accused Ghewaria had either surrendered himself or had been brought to the Police Chowki, Ratanada on that very night and Shri Padam Singh produced him before Shri Avtar Singh, Investigating Officer at 11. 35 p. m. when he was arrested vide Ex. P. 11. THE other accused Badri was arrested on 14-7-1981 vide Ex. P. 14. While in custody, Ghewaria gave information regarding knife to Shri Avtar Singh vide Ex. P. 15 and got the same recovered from his house along with blood-stained bush shirt, Baniyan and Pant, vide Ex. P. 6. After the completion of the investigation, challan was put up against both the accused persons and they were committed to the court of the learned Sessions Judge, Jodhpur, were charges under sec 302 and 354, IPC were framed against Ghewari a and charge under sec 302 read with section 34, IPC was framed against Badri. THE accused pleaded not guilty and claimed to be tried. THE prosecution, thereupon, examined 13 witnesses and produced a number of documents. THE accused denied the prosecution story when examined under sec. 313, Cr. P. C. THEy also filed their written statements in which accused Ghewaria stated that he had lost the balance of his bicycle when a car was coming from the opposite side and therefore, his hand happened to touch the wife of the military personnel, who was sitting on the pillion and when he tried to control his bicycle, the military personnel started abusing and gave him a slap, whereupon scuffle took place between them. During the course of scuffle, the military personnel took out a knife from his pant's pocket and tried to stab him. THE accused tried to avert the injury and during the scuffle while they were grappling with each other, the military personnel fell down on the ground and his own knife got inserted into his chest. Badri, who was accompanying him, had run away from the spot. Badri, in his written statement has tried to support this version and the accused examined four witnesses in their defence. On trial, the learned Sessions Judge convicted accused Ghewaria under section 302 and 354, IPC and sentenced him to imprisonment for life and a fine of Rs. 500/- in default one months' further rigorous imprisonment on the first count and one year's rigorous imprisonment and a fine of Rs. 300/- in default two month's further rigorous imprisonment under the second count He convicted accused Badri under section 302 read with section 34, IPC and sentenced him to imprisonment for life and a fine of Rs. 500/-in default one year's rigorous imprisonment. Aggrieved of their conviction and sentences, appellants Ghewaria and Badri have filed this appeal.
(2.) WE have heard learned counsel for the appellants and the learned Public Prosecutor and have gone through the record. Three contentions have been raised before us by the learned counsel for the appellants. The first contention was that the incident did not take place in the manner alleged by the prosecution but it had occurred in the manner alleged by the accused. The second contention was that Ghewaria could not be convicted under section 302 IPC, but could have been convicted only under section 304, IPC. The third contention was that Badri was merely accompany-ing accused Ghewaria, but he did not at all participate in the incident and has wrongly been implicated on account of his association with Ghewaria How ever after going through the evidence before us and arising some arguments in respect of the first contention, the learned counsel gave it up to a great extern and limited his contention only to the extent that the whole incident had taken place as a single event and the prosecution story that after the first scuffle the parties had been separated and had left the place and later Ghewaria came back and staboed Ram Bahadur Rana, should not be accepted On a careful scrutiny of the evidence of PW 1 Brij Rani, PW 2 Smt. Hema and PW 5 V. M. Bhai, we are satisfied that the whole incident did not take place in one event but as stated by these witnesses, it had taken place in two instalments after the first scuffle, the parties had been separated and had left the place but immedi ately thereafter, Ghewaria and Badri, who had left the place came back from the opposite side, and then Ghewaria stabbed Ram Bahadur Rana twice on the chest. In this respect, the evidence of these witnesses appears to be quite reliable and nothing has been brought out in their cross-examination in order to discredit them. Learned counsel for the appellant wanted to make much capital out of the statement of Smt. Brij Rani to the effect that the stabbing had taken place at the same spot where the first scuffle had taken place, in order to show that the story that after the first scuffle, the parties had left and later Ghewaria and Badri came back and Ghewaria stabbed Ram Bahadur Rana, is not correct but we are unable to accept this contention. A careful reading of the statement of Smt. Brij Rani clearly goes to show that after the first scuffle, the parties had been separated. Thereafter, Ram Bahadur Rana and his party had given up the idea of going to Shiv temple, and had turned back to go to their house and immediately thereafter, while they were proceeding towards their house, the accused came back running from the opposite side and Ghewaria stabbed Ram Bahadur Rana. The statement that the stabbing had taken place at the same spot where the first scuffle took place does not necessarily mean that it was part of the first struggle or scuffle when she had unequivocally stated that after the first scuffle they had been separated and when they turned to go to their houses and were just proceeding towards house that side, the accused came back from the opposite side and Ghewaria stabbed her husband. Therefore, it appears that what she meant was that the stabbing had taken place 'almost" at the same place where the first scuffle had taken place, but the stabbing was after the first scuffle was over and the parties had already been separated. We are, therefore, unable to agree with the learned counsel for the appellant that the stabbing took place in the course of a single incident of grappling between Ram Bahadur Rana and Ghewaria. The first contention, therefore, stands rejected. So far as the second contention goes, it, as a matter of fact, is a corollary to the first contention because if we were to accept that accused Ghewaria stabbed Ram Bahadur Rana when Ram Bahadur Rana abused him for trying to molest his wife and while they were grappling, the accused, all of a sudden without any pre-meditation, gave a blow on the chest of Ram Bahadur Rana, there may be some justificat on for the argument that the offence may not fall under sec. 302 IPC, but, as we have arrived at a finding that after the first scuffle, the parties had been separated and had left the place or, to be more specific the accused had run away and the deceased and his party were just moving back towards their house, the accused came back and accused Ghewaria struck two blows with the knife on the chest of Ram Bahadur Rana, the offence necessarily falls under section 302, IPC, because in that case the only conclusion would be that the accused either acted with the intention of killing Ram Bahadur Rana or atleast he intended to cause a particular injury which he intended to cause to the deceased and that injury was sufficient in the ordinary course of nature to cause death. Learned counsel referred to the cases reported in Tholan vs. The State of Raj (l) and Bhanwari Lal vs. The State of Raj. ,2) in suoport of his contention that in the present circumstances, the accused can be held guilty only under sec. 304, IPC. Having carefully gone through each of these authorities, we are clearly of the opinion that none of them is applicable to the fact of the present case. In both these authorities, it was found as a fact that the accused could not be attributed the intention of causing the death or causing the particular injury which ultimately proved fata! and, was sufficient in the ordinary course of nature to cause death. In the present case, at the cost of repetition, it may be stated that after the first scuffle was over and for which also the accused was primarily responsible, because it was he who had touched the person of the wife of the deceased and had made a vulgar remark at her, he ran from the spot, after being separated from the deceased, had come back armed with a knife with the blade 1"x l/2" long and gave two blows on the chest of the deceased which is vital part of the body and the injuries had been inflicted with sufficient force. Injury No. 1 reached the right lung cutting the lung 1 cm. lung x 1/2 cm. through and through near the anterior border of the upper lobe. The injury further extended to the right ventrical and the pericardium and pleura had been cut and the second injury was also muscle deep, although it had not penetrated the thoratic cavity. In these circumstances, the conviction of the appellant Ghewaria under section 302, IPC is fully justified. So far as the offence under sec. 354, IPC is concerned, looking to the statement of Smt. Brij Rani, it clearly appears that accused Ghewaria intended to outrage the modesty of Smt. Brij Rani, as while reaching her body he remarked 'yaha Mal Kaisa Hai'. The story that it was an accidental touch, in these circumstances cannot be believed. Learned counsel for the appellant however, urged that from the statement of Smt. Brij Rani, it appears that accused were known to her from before and, therefore, cannot be envisaged that Ghewaria would have had the courage of molesting her while she was riding on the pillion of the bicycle with her husband but this contention does not appeal to us. Looking to the conduct of the accused in stopping his bicycle after the alleged touch to the body of Smt. Brij Rani and taking up cudgles with Ram Bahadur Rana,it clearly appears that the accused was a dare-devil and must have been used to ever teasing and this is further re-enforced from the fact that after this incident of molesting Smt. Brij Rani and grappling with her husband he went and came back armed with a knife and stabbed her husband. It, therefore, cannot be said that he could not have tried to molest Smt. Brij Rani in the presence of her husband. This brings us to the last contention regarding the implicity of accused Badri. We have carefully gone through the statements of Smt. Brij Rani, Smt. Hema and V. M. . Bhai. His presence along with co-accused Ghewaria has, of course, been stated by them throughout. How ever, they did not attribute him any part during the first scuffle. All that is stated against him is that in the latter incident when Ghewaria came back and stabbed Ram Bahadur Rana, he caught hold of Ram Bahadur and, thus, he had facilitated the stabbing and must be deemed to have shared the common intention of causing death of Ram Bahadur Rana with accused Ghewaria. To our minds, the case against Badri does not appear to have been proved beyond doubt and his alleged holding of Ram Bahadur while Ghewaria was giving knife blows, cannot be easily understood. Ghewaria could easily have struck the blows even if Badri had not caught hold of Ram Bahadur Rana. Secondly, it cannot be envisaged that in the presence of so many others, Badri could have caught hold of Ram Bahadur Rana in order to facilitate the stabbing by Ghewaria. On the other hand, it may just be possible that after having been separated in the first scuffle and having run away from the spot, Ghewaria may suddenly have taken to his mind of stabbing Ram Bahadur Rana and, therefore, he may have taken turn back and Badri, who was accompanying him may also have come back along with him without knowing what Ghewaria intended to do. Since he was a close associate of Ghewaria and was also present at the spot at the time of this incident the possibility of his being implicated merely on account of the association with Ghewaria cannot be ruled out. He must, therefore, get the benefit of doubt.
(3.) THE result, therefore, is that Ghewaria's appeals fails and is hereby dismissed, but Babri's appeal is accepted. His conviction under sec. 302 read with sec. 34, IPC and sentence passed thereunder are set aside. He is acquitted of that charge. He is on bail and need not surrender. .;