JUDGMENT
Shiv Kumar Sharma, J.
1. Kalu, Sheoraj, Shanti lal @ Shatiyo, Mauji Ram and Raju Lat appellants herein, along with coaccused Ram Phool, Hari Ram, Hanuman and Shanti, were put to trial before learned Additional Sessions Judge (Fast Track) No. 1 Bundi, who vide judgment dated March 22, 2003, while acquitting coaccused persons convicted and sentenced the appellants as under:
Kalu under Section 302 and Sheoraj, Shanti lal @ Shatiyo, Mauji Ram and Raju Lal
Under Section 302/149 IPC:
Each to undergo imprisonment for life and fine of Rs. 1500/- in default to further suffer one month simple imprisonment.
Under Section 148 IPC:
Each to undergo one year rigorous imprisonment and fine of Rs. 500/- in default to further suffer fifteen days simple imprisonment.
The substantive sentences were ordered to run concurrently.
2. The prosecution story is woven like this:
On May 24, 1993 informant Ram Sukhi (P.W. 4) orally lodged a report (Ex. P-5) at Police Station Dei to the effect that in the preceding night while the informant, her son Ram Sahay (since deceased) and daughter-in-law Saroopi were sleeping in the chowk their bullock somehow entered the house of their neighbour Kalu (appellant), thereupon Kalu, Shantiya, Rajya, Mauji Ram, Sheoraj armed with axe and lathis came to their house and gave beating to Ram Sahay. Kalu inflicted blow with blunt side of axe on left rib of Ram Sahay and others gave beating to him with lathis. On that report case under Sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Statements of witnesses under Section 161 Cr.P.C. were recorded accused were arrested necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bundi. Charges under Sections 148 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 11 witnesses. In the explanation under Section 313 Cr.P.C., the accused claimed innocence. Four witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have heard learned Counsel for the appellants and learned Public Prosecutor and with their assistance scanned the material on record.
As Post Mortem Report (Ex. P-4) following ante mortem injuries were found on tire person of Ram Sahay:
1. Bruise on interiorly surface of neck in middle transversely 11/4″ x 1/2″.
2. Bruise on back of neck in upper 1/2″ transversely 13/4″ x 1/2″
3. Bruise on left side of chest wall antero laterally in lower 1/3 transversely 3″ x 3/4 “.
In the opinion of Dr. Kamal Bhargava (P.W. 3) the cause of death was asphyxia due to fractures of hyoid and thyroid cartilage and vertebra.
4. Having gone through the testimony of Ramsukhi (P.W. 4), Sarupi (P.W. 5) and (Gap Nand (P.W. 7) we find that the incident occurred in darkness and only one injury Ms been attributed to appellant Kalu. On a close scrutiny of the testimony of the eye witnesses we find it consistent qua appellant Kalu only. So far as other accused are concerned the prosecution has failed to establish charges against them beyond reasonable doubt. The prosecution is not able to prove that the appellants had assembled near the place of incident with a common object to kill Ramsahai. In these circumstances, we find ourselves unable to fasten vicarious criminal liability under Section 148 or 149 IPC on the appellants. Since Kalu inflicted injury with blunt side of axe on the person of Ramsahai and he did not repeat it, it can be presumed that Kalu had knowledge that the blow inflicted by him was likely to cause death of Ram Sahai, even though he had no intention of causing death or such bodily injury as is likely to cause death. Therefore the appellant Kalu is found guilty of the offence punishable under Part II of Section 304 IPC. We grant benefit of doubt to appellants Sheoraj, Shanti Lal @ Shatiyo, Mauji Ram and Raju Lal.
5. In the result the appeal is disposed of in the following terms:
(i) We partly allow the appeal of appellant Kalu and instead of Section 302 IPC we convict him under Section 304 Part II IPC and sentence him to suffer rigorous imprisonment for five years. We however acquit the appellant Kalu of the charge under Section 148 IPC.
(ii) We allow the appeal of appellants Sheoraj, Shanti Lal @ Shatiyo, Mauji Ram and Raju Lal and acquit them of the charges under Sections 148 and 302/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged.
(iii) The impugned judgment of learned trial Judge stands modified as indicated above.