- (1.) DEVI Lal appellant has been convicted by the Sessions Judge, Sawai Madhopur (Camp Gangapur City) for offences under secs. 326 and 323 of the Indian Penal Code and has been sentenced to rigorous imprisonment for two years and for one month respectively and also to a fine amounting to Rs. 500/- for the offence under Sec. 326, IPC and, he has come in appeal before this Court against the said convictions and sentences.
(2.) SUNDAR (PW/1) is uncle of Shrikishan (PW/3 ). The fields of SUNDAR and Shri Kishan are adjoining the. fields of Naula and his son Devi Lal. On April,6, 1980 Shri Kishan (PW/3) Lodged a First Information Report (Ex. P/3) at 9. 30 p. m. at the Police Station, Karauli to the effect that they were erecting a. 'dol' around their fields. At the time, apart from SUNDAR, and Shrikishan, Bharosi, Ram Charan, Parma and other, labourers were present and were erecting the 'dol'. At about 2 p. m. Devi Lal, appellant armed with 'favda' came to the fields of SUNDAR and Shri Kishan, hurled abuses and took SUNDAR by dragging him to the well and started beating him. Shri Kishan went there to rescue his uncle SUNDAR, but the appellant and his father Naula started telling that he will be killed that day and an injury was inflicted on his head from the sharp edge side of the 'favda'. Blood oozed out from the head of Shri Kishan and he fell down. Devi Lal and Naula continued beating Shri Kishan even he was lying. Thereafter he left the place thinking that Shri Kishan has died. Bharosi, Ram Charan and Parma came there, lifted Shri Kishan and got him admitted in the hospital for treatment saying that his life should be saved by taking him to the hospital. On the basis of this First Information Report, the Station House Officer, Police Station, Karauli registered a case under sections 324. 447 and 323 read with Sec. 34, IPC and started investigation. He went on the spot and prepared site-plan and the memo of site-inspection (Ex. P/11 ). The Blood stained clothes which Shri Kishan was wearing were seized vide memo Ex. P/18. Naula and Devi Lal were arrested on April 11, 1980 and on heir information being given under section 27 of the Evidence Act, two axes by which the injuries are alleged to have been inflicted were recovered. After necessary investigation, the police filed a charge-sheet against Naula and Devi Lal in the Court of the Addl. Munsif & Judicial Magistrate, Karauli under sections 307/34,447 and 323, IPC. The case was committed to the Court of Sessions, Sawai Madhopur. The Sessions Judge charged Devi Lal for the offences under sections 307, 447 and 323, IPC. He charged Naula for the offences under section 307 read with sec. 34 and secs. 447 and 323, IPC. After trial, the Sessions Judge held the charge against Naula with respect to any of the offences, not established and acquitted Naula. However, he found Devi Lal appellant guilty for the Offences under sections 326 and 323, IPC. and sentenced him as aforesaid, for both these offences. The learned counsel for the appellant urged that the prosecution has. failed to establish that the appellant inflicted any injury on the head of Shri Kishan or on any part of his body. He urged that there are contradictions in the statements of the eye- witnesses with regard to the person who inflicted the injuries on Shri Kishan. Lastly, the learned counsel for the appellant has contended that the Sessions Judge should have considered the provisions of Sec. 360 of the Code of Criminal Procedure and should have released that appellant on probation of good conduct instead of sentencing him to rigorous imprisonment for two years and one month in respect of the offences under secs. 326 and 323 IPC. The First Information Report (Ex. P/2) was lodged on April 6, 1980 at 9. 30 p. m. in which the incident was alleged to have taken place at 2. p. m, The distance between the place of the incident and the Police Station is 7 miles. In the First Information Report the presence of both Naula and his son Devi Lal was mentioned. It is true that in the First Information Report it was not specified as to which of the assailants inflicted injuries on which of a the injured persons and on which part? However, it is clear that the assault was attributed both to Devilal and Naula. Dr. Suraj Lal Gupta. (PW-7) had examined the injuries sustained by Shri Kishan and had given his report (Ex. p/4 ). Ex/p/4, as proved by Dr. Gupta, goes to show that Shri Kishan sustained vertical incised wound 6 cm x 1cm. depth upto bone on left parietal region of head; 4 cm above the hair margin. The margin of the wound was clean- cut. Apart from that, Shri Kishan had two lacerated wounds on the back of left side of head and on the back of right shoulder, apart from the two contusions and abrasions. The injured, Shri Kishan was examined by Dr. Gupta on that very day at 5-30,p. m. According to him, the injuries were fresh and the duration was 2 to 3 hours. Sundar had also sustained one injury which was abrasion with swelling on back of the left shoulder. , " It is not in dispute that on the date of the incident Shri Kishan and Sundar were erecting 'dol' around their fields and while doing so they had blocked the way leading to the well. Naula had stated in his examination under sec. 313,cr. P. C. that he requested Shri Kishan not to close the way. On going through the evidence of Sundar (PW-1) and Shri Kishan (PW-3), it would appear that Sundar had deposed in his examination-in-chief that it was Naula who inflicted a 'favda' blow on the head of Shri Kishan. Thus, the injury on the head of Shri Kishan was attributed by Sundar to Naula. The same thing was repeated by Sundar when he, in his cross-examination, stated that Naula had inflicted two injuries by 'favda' on Shri Kishan, out of which one was inflicted on his head. Then he improved in his cross-examination and stated that Devi Lal nflicted the injury on Shri Kishan. Shri Kishan himself gave another version. He stated that Naula and Devilal inflicted the two injuries on his head. However, he said that he does not know who inflicted the injury on his head. Thus, from the evidence of the injured witnesses themselves it is not established beyond reasonable doubt that it was Devi Lal and Devi Lal alone who inflicted injuries on the head of Shri Kishan by 'favda'. In the First Information Report, three eye-witnesses were specifically named to be present, namely, Ram Bharosi, Ram Charan and Parma. So far as Ram Charan is concerned, he has not deposed anything with regard to the injuries inflicted on Shri Kishan. He only mentioned with regard to the injuries inflicted on Sundar and in relation to Sundar, he named Devilal as the assailant out of three, only Parma and Ram Bharosi deposed that Devi Lal inflicted injuries by 'favda' twice on Shri Kishan. When the two injured are themselves not definite as to who inflicted injury on Shri Kishan, much reliance cannot be placed on Parma and Ram Bharosi who were at a distance from the place of the incident and had not even come to rescue Shri Kishan when attempt was being made to inflict injuries on him. In view of the contradictions in the evidence of Sundar and Shri Kishan, on the one hand, and Parma and Ram Bharosi, on the other, with regard to the person who inflicted the injury on Shri Kishan, it is not safe to convict the appellant for any of the two offences. It may, however, be mentioned that Phool Chand was also examined by the prosecution as an eye-witness, but he denied having seen any injury on Shri Kishan.
(3.) HERE, it may be mentioned that the Sessions Judge has given a finding that there was no common intention on the part of the appellant, Devi Lal and Naula to commit the offence charged. There was no prior concept or prior meeting of minds between Naula and Devilal and the incident occurred at the spur of the moment. In such circumstances, Naula and Devilal could only be held guilty in respect of their respective individual acts. It was for the prosecution to establish beyond doubt that it was Devilal who had inflicted the injuries on Shri Kishan which, as already stated, the prosecution has failed to prove beyond reasonable doubt. So far as Naula is concerned, he has already been acquitted by the Sessions Judge. In view of the above discussion, the conviction and sentence awarded by the Sessions Judge to Devilal deserved to be set-side. I, therefore, allow this appeal, set aside the conviction and sentence awarded by the Sessions Judge, Sawai Madhopur (Camp, Gangapur City) to Devilal by his Judgement dated May 15, 1981 and acquit Devilal of the offence under sections 326 and 323,ipc. The appellant is on bail. His personal bond and surety bonds are here by revoked. He need not surrender. .;