SINGH, J. - (1.) HEARD the learned counsel for the appellants and the learned Public Prosecutor.
(2.) THIS appeal has been filed by the appellants Shanker Nath, Bhanwar Nath, Kishan Nath and Bhagirath Nath against the judgment dated 5. 06. 1997 passed by the learned Additional District & Sessions Judge, Ratangarh in Sessions Case No. 58/93-State vs. Shanker Nath & Ors. By the aforesaid judgment, the appellants Shanker Nath, Bhanwar Nath, Kishan Nath and Bhagirath Nath were convicted under Section 302 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-and to undergo rigorous imprisonment for six months for default in payment of fine. On 12. 06. 1993 at 5. 30 P. M. , statement of Vinod Kumar S/o Bhanwar Lal was recorded by the Station House Officer of the Police Station, Sandawa and, on the basis of that statement, the police registered the First Information Report No. 38/93 in respect of offences punishable under Sections 307 and 342 read with Section 34 of the Indian Penal Code. In his statement (Ex. P. 2), Vinod Kumar stated that he earned living by transporting bricks on his tractor on hire. On 12. 06. 1993, at about 5 P. M. when he went to his house to take meals, Kishan Nath s/o Ramlal Nath caste Sidh went to him and enquired about the charges for carrying bricks in his tractor. He told him that he carries one trolley of tractor for a sum of Rs. 20/ -. Kishan Nath offerred to hire his tractor on payment of Rs. 17/-per trolley and further told him that he was being called by Bhanwar Nath and Shanker Nath at their house. Vinod Kumar further told that he went to the house of Bhagirath Nath with Kishan Nath. When he reached there he found that Bhanwar Nath, Shanker Nath and their father Bhagirath Nath were sitting under a thatch. On seeing him, Shanker Nath told him that he used to visit his wife but he refuted this charge. Vinod Kumar further added that first of all Bhanwar Nath inflicted a blow with a `jaily' on his left leg. Bhanwar Nath inflicted an injury on his left ear with an axe and another injury was inflicted by Bhagirath Nath on his head with `kulhari'. According to the statement of Vinod Kumar, all the four accused-persons inflicted injuries on him with a view to kill him and, during the incident, no body reached to protect him. After some time his mother Smt. Shanti, Grand-father Banshi and Gangu reached the spot and took him to his house. It was also stated by Vinod Kumar that accused had stopped beating because they considered him to be dead. From his house the injured Vinod Kumar was taken to the Sandawa Govt. Hospital for treatment. On the basis of the statement (Ex. P. 2) of Vinod Kumar recorded by the Station House officer of Police Station, Sandawa, the police registered a case under Sections 307 and 342 read with Section 34 of the Indian Penal Code. During investigation Vinod Kumar died. The post-mortem examination of his dead body was conducted on 13. 6. 199. 3 from 8 A. M. to 10 A. M. Several injuries caused with blunt and sharp weapons were found on his body and, in the opinion of doctor, death of Vinod Kumar had occurred on account of contusion and oedema of brain due to head injury. The case registered by the police was, therefore, converted to case under sections 302 and 342 read with Section 34 of the Indian Penal Code. After usual investigation, the report under Section 173 (2) of the Criminal Procedure Code was filed in the court of Munsif & Judicial Magistrate, Sujangarh who committed the case to the court of Additional District & Sessions Judge Ratangarh. On 4. 7. 1994, the learned Additional District & Sessions Judge, after hearing arguments on charge, framed charges under Secs. 302 and 302 read with Sec. 34 of the Indian Penal-Code against all the four accused-persons who pleaded not guilty to the charges framed against them. The learned Additional District & Sessions Judge adjourned the case for recording evidence of the prosecution. On 4. 6. 97, Shri Kapil Bhargava, Additional District & Sessions Judge, Suratgarh, at the stage of writing judgment, deemed it fit to amend the charges. The amended charges were read over and explained to the. accused-persons and they pleaded not guilty to them. By the amendment, in place of framing separate charge under Section 302 and 302 read with Section 34 of the Indian Penal Code, the learned Additional District & Sessions Judge framed charge under Sections 302 and 302 read with Section 34 of the Indian Penal Code in the alternative.
(3.) THE prosecution examined Jagdish Saran (PW 1), Kan Das (PW 2), Mst. Shanti (PW 3), Rameshwar Lal (PW 4), Balu Ram (PW 5), Bhaira Ram (PW 6), Bhagwana Ram (PW 7), Dr. Sher Singh (PW 8), Dalu Ram (PW 9), Ganga Ram (PW 10), Vikram Singh (PW 11), Prema Ram (PW 12), Hema Ram (PW 13), Narayan Singh (PW 14), Dr. Satya Narayan Jangid (PW 15), Hari Ram (PW 16), Banwari Lal (PW 17), Lalit Kumar (PW 18), Bhanwar Lal (PW 19) and Taj Mohammed (PW 20) in support of the prosecution case. All the four accused-persons were examined under Section 313 of the Criminal Procedure Code. THEy did not examine any witness in defence. The learned Additional District & Sessions Judge, after hearing the argu-ments and considering the evidence produced by the prosecution, convicted all the four accused-persons under Sec. 302 read with Section 34 of the Indian Penal Code and sentenced each of them to imprisonment for life and a fine of Rs. 500/-and further rigorous imprisonment of six months, for default in payment of fine. The learned counsel for the appellants has submitted that the evidence produced by the prosecution is not sufficient to prove charge framed against the accused-persons beyond reasonable doubt. He has prayed that the appeal be allowed and all the four accused-persons be acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code. In the alternative, he has submitted that the offence committed by -the accused-persons, does not amount to murder punishable under Section 302 of the Indian Penal Code, as the dominant intention of the accused-persons was not to commit murder but merely to teach a lesson to Vinod Kumar (deceased), against whom there was a suspicion of having illicit relation with the wife of one of the accused. It is, therefore submitted that the accused-persons should be acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code and, in case, the prosecution case against them is found to be true and proved beyond reasonable doubt, the accused-persons may be convicted under Section 304 Part II of the Indian Penal Code. ;