JUDGMENT
N.N. Mathur, J.
1. The appellants Poona Ram, Nema Ram and Hema Ram all sons of Bhura Ram and Ram Prakash have been convicted for offence under Section 302/34, IPC by the judgment of the Additional Sessions Judge, Sojat, District, Pali dated 4.8.2000 and sentenced to imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment of fine to further undergo 2 months rigorous imprisonment. They have also been convicted for the offence under Sections 323 & 325/34, IPC.
2. The second appellant Nema Ram along with his brothers Poona Ram and Hema Ram stood trial on the charge of murder of Babu Lal the brother of his wife P.W. 3 Smt. Morki the star prosecution witness. The incident took place in two parts; firstly at the house of the accused persons in village Bera Shiv Sagar, Chandaval. The second and fatal incident took place outside the residence of the deceased in village Vyaso-Ki-Dhimdi. It is alleged that P.W.3. Mst. Morki was suspected to have committed theft of Rs. 300-400/- and passed on the said amount to her father and brother. On 25th June, 1998 at about 10:00 P.M., P.W.3 Mst. Morki after completing the house-hold work went to bed. Her husband Nema returned to the house in drunken condition. He was served food by smt. Kamla the wife of his elder brother. The mother of Nema Ram complained that Mst. Morki was not taking interest in the household work. It was also complained that she had taken out certain currency notes from the pocket of Poona Ram and passed on the amount to her brother and father. Mst. Morki was being assaulted by the appellants Nema Ram, Poona Ram, Hema Ram and her mother-in-law by hands and fists on account of which she sustained injuries on different parts of her body. Nema Ram also decided to despatch Mst. Morki to her parents house. A decision was taken to go to the house of Mst. Morki and entrust to her parents. On receiving message, Ram Prakash, also accompanied them armed with a gun. Nema Ram, Hema Ram, Poona Ram, Ram Prakash along with Mst. Morki armed with gun and Lathies reached to the house of the parents of Mst. Morki in village Vyaso-Ki-Dhimdi on a tractor at about 11:00 P.M. Poona Ram gave call to Morki’s father P.W.6 Mohanlal. Babu Lal came out of the house. The appellants Nema Ram, Poona Ram, Hema Ram and Ram Prakash gave him beating. The cries attracted P.W.9 Smt. Sushila the brother’s wife of Mst. Morki and many others. She was also being assaulted by the accused persons. Similarly; when Mohanlal came out, he was also given beating. The accused persons Hema Ram, Poona Ram, Nema Ram and Ram Prakash left the place taking Babulal with them on the tractor and leaving Mst. Morki. Mohanlal hired a jeep and took the injured persons namely Mst. Morki, Sushila to the Government Hospital, Sojat. They found that Babulal was already admitted in the Hospital in injured condition. The statement of Mst. Morki was recorded by P.W.19 Bhanwar Singh A.S.I. vide Ex. P-5 at 3:00 A.M. On the basis of the said statement a F.I.R Ex. P-27 was lodged at the Police Station, Sojat City at 4:00 A.M. The police registered the case for offence under Sections 307, 323, 342, 34, IPC and proceeded with the investigation. Babulal succumbed to the injuries at about 8:00 A.M. Thus, the offence under Section 302, IPC was also added. The police sent the dead body for the autopsy. Aftr usual investigation, police laid charge sheet against the four accused persons for offence under Sections 302 read with 34, 325 read with 34, 323 & 342, IPC.
3. The appellants denied the charges leveled against them and claimed trial. The prosecution in support of the case examined 25 witnesses and produced certain documents. In statements under Section 313 of the Code of Criminal Procedure the appellants denied correctness of the prosecution evidence appearing against them. It is also stated that Babulal was tried on the charge of murder of his own brother. On that account there was a family dispute in which they have been falsely implicated. The trial Court relying on the testimony of the eye-witnesses P.W.3 Morki, P.W. 6 Mohanlal and P.W. 9 Sushila supported by the medical and the other evidence found the prosecution case proved. Accordingly, the trial Court convicted and sentenced the appellants in the manner stated above.
4. Assailing the conviction it is contended by Mr. Jagmal Singh Choudhary learned Counsel for the appellants that the trial Court has committed error in relying on the wholly unreliable witnesses. The learned Counsel has pointed out certain contradictions and improvements in the statements of the eye-witnesses. In the alternative it is submitted that the conviction of the appellant cannot travel beyond the offence under Section 304 Part-II IPC as they had no intention to commit murder of Babulal. On the other hand the learned Public Prosecutor has supported the judgment of the trial Court.
5. We have read the entire evidence with the help of the learned Counsel and analyse the same. It is not in dispute that the deceased Babulal died of homicidal death. P.W. 16 Dr. Ashok Sharaf stated that he conducted the post-mortem of the dead body of Babulal and prepared the post-mortem report Ex.P-23. He found the following injuries on the dead body of deceased Babulal:
(1) Stiched wound below lower lip 1-1/2″;
(2) Swelling 3″ x 1-1/2″ on forearm, fracture of forearm bones;
(3) Swelling 4″ x 2″ on thigh; fracture of femur;
(4) Stiched wound 1-1/2″ on ankle:
(5) Pupil dilated & fixed;
(6) Swelling 4″ x 2″on upper part of leg;
(7) Contusion 2-1/2″ x 1″ on shoulder;
In his opinion the cause of death was fracture of femur and left forearm bones leading to hemorrhagic shock.
6. P.W. 25 Dr. Gautam Karnawat stated that on 26.6.1998 he was posted as Medical Jurist at the Govt. Hospital, Sojat City. He also stated that he examined deceased Babulal and prepared the injury report Ex.P-27.
(1) Lacerated wound 3 x 1 x 1/2 cm below lower lip & left side.
(2) Diffuse swelling 6 x 3 cm left forearm
(3) Diffuse swelling 8 x 3 cm left femur
(4) C W 2 x 1 x 1 cm with bleeding lateral side & left lower lip
(5) Swelling 6 x 3 cm on left upper tibia
(6) Contusion 6 x 1 cm red in colour on right shoulder.
On the same day, he also examined Sushila and noticed the following injury:
(1) Lacerated wound 3″ x 1-1/2″ x 1/2″ on left temporal region with bleeding.
He has proved the injury report Ex. P-27. It is stated that all the injuries were simple in nature. He also examined Mohanlal and noticed one injury vide Ex. P-30. It was a simple injury caused by blunt object. He also examined P.W. 3 Mst. Morki and prepared the injury report Ex.P-29. He found the following injuries on her person:
(1) Abrasion 1/2 x 1-1/2 cm on centre of forehead.
(2) Diffuse swelling 3 x 2 cm on centre for forehead.
(3) Diffuse swelling on right forearm.
(4) Abrasion 1/2 x 1/2 cm upper part of left knee.
(5) Abrasion 1 x 1/2 cm on upper part of right leg.
He found injuries No. 4 & 5 simple in nature caused by blunt object. He advised radiological examination of injuries No. 1 to 3. P.W. 15 Dr. Ambadan has stated that he had prepared the report after examining the X-Ray. On radiological examination he found fracture of right radius bone.
7. The prosecution has produced two set of eye-witnesses. The names of the three injured eye-witnesses namely P.W.3 Mst. Morki, P.W.6 Mohanlal and P.W. 9 Smt. Sushila finds place in the First Information Report. The second set of eye-witnesses are P.W.4 Chaina Ram, P.W. 10 another Chaina Ram and P.W. 23 Smt. Vidhya. These witnesses reached on the spot hearing the cries of Babulal. The names of these witnesses does not find place in he First Information Report. P.W.3 Mst. Morki has narrated the incident in the same manner as given in her statement Ex.P-5 on the basis of which the F.I.R. has been registered. There is no purpose to re-state her statement. On the crucial part she stated that the tractor was stopped outside her parents house. Poona Ram gave call to her father on which her brother Babulal came out. All the accused persons gave beating to Babulal on account of which fell down. She raised voice and advised family members to not come out. When Sushila came out Poona Ram inflicted injuries by a supportive blade of the tractor. When her father Mohanlal came out he was also attacked by Poona Ram. He gave him beating by the supportive blade of the tractor on account of which he sustained injuries on head and chin. She has further stated that when they reached to the hospital they found that her brother was already admitted. She was given treatment in the hospital. Her brother Babulal succumbed to the injuries. There is a lengthy cross examination, but nothing has been elicited to discredit the testimony of this witness. Her presence on the spot is natural. P.W.6 Mohanlal stated that his daughter Mst. Morki and Sita were married to brothers accused Nema Ram and Hema Ram. Mst. Morki reported that Rs. 300-400/- were missing from the pocket of Poonama, and they were suspecting her involvement. He assured his daughter that he will talk to Poona Ram and Hema Ram in that regard. Accordingly in the morning of the fateful day he met Poona Ram and asked him not to drag the name of his daughter in theft incident. On the same day about 11:00 P.M. accused persons in a tractor arrived at his house and he was called out side the house. His son Babulal went out. All the four accused persons gave beating to him by Lathies. He along with Sushila and others also came out. The accused persons caused injuries to Sushila by the supportive blade of the tractor. He was also assaulted. He admitted in the cross-examination that Chaina Ram and Vidhya also reached on the spot. Certain suggestions were made if the witnesses could see the actual incident. Suffice it to say that there is nothing substantial in the cross-examination to discredit in the cross-examination to discredit the testimony of this witness.
8. P.W.9 Smt. Sushila stated that on the fateful day at about 11:00 P.M. the appellants came to their house and gave a call to her father-in-law. Her brother-in-law Babulal went out. The accused persons assaulted him. She along with her father-in-law Mohanlal came out. The appellant Nema Ram was armed with a Lathi, whereas Poona Ram was carrying a supportive blade in his hand. She was being assaulted by Poona Ram with the help of iron blade. Many suggestions were put to her in the cross-examination which she denied. The statements of these witnesses find full corroboration from the medical evidence.
9. Mst. Morki is an injured eye-witness. She has travelled along with the accused persons from their house. She was sitting on the tractor when the incident took place. She has sustained injuries. There is no reason for her to falsely implicate her own husband. Similarly there is no reason to disbelieve the statement of P.W.6 Mohanlal and P.W.9 Smt. Sushila. Their statement finds full corroboration from the medical evidence and the prompt F.I.R. Thus, we are satisfied that the prosecution has succeeded in establishing case against the appellants Nema Ram, Hema Ram and Poona Ram beyond all reasonable doubt.
10. As regards appellant Ram Prakash, according to the prosecution he was armed with a gun, but there is no allegation that he fired the same. The eye-witnesses have not named him as assailants. It is simply stated that he was also with the other appellants armed with gun. On these facts, it is difficult to say that he shared common intention with the other accused persons in given beating to Babulal as a result of which he died. In view of this the conviction of appellant Ram Prakash is not sustainable.
11. Adverting to the nature of offence, it is contended by Mr. Jagmal Singh Choudhary learned Counsel for the appellants that the circumstances of the case show that the appellants did not intend to cause murder or a particular injury which could said to be sufficient in the ordinary course of nature to cause death. Thus, according to the learned Counsel the offence committed by the appellants could not be murder, but culpable homicide not amounting to murder. In support of contention he has placed reliance on the certain decisions of this Court. On careful analysis of the evidence, it appears that the purpose of the accused persons’ visiting the house of the deceased was to report or to complain the misdeeds of Mst. Morki. It is significant to notice that it is the accused appellants who had taken Babulal on the tractor to the hospital. If they had intention to commit his murder, they would not have rushed him to the hospital immediately. None of the injuries are on vital part of the person of deceased Babulal. The doctor has not stated that the injuries were sufficient in the ordinary course of nature to cause death. In these circumstances neither intention to commit murder or to cause particular injury to deceased Babulal can be attributed to three appellants. However, the appellants can be attributed the knowledge that their act was likely to cause death. Thus, in our opinion the conviction of the appellants for offence under Section 302 IPC is not sustainable. Their conviction is liable to be converted to offence under Section 304 Part-II/34, IPC. Their conviction for the allied offences deserved to be maintained.
12. Consequently, we allow this appeal in part. The conviction and sentence of the appellants Poona Ram, Nema Ram and Hema Ram for offence under Section 302/34, IPC is converted into offence under Section 304 Part-II/34, IPC. Each of the appellants instead of imprisonment for life will undergo sentence of five years rigorous imprisonment. Each one of them will also pay a fine of Rs. 500/-; in default of payment, they will further undergo one month rigorous imprisonment. The conviction of all the appellants for offence under Section 323, IPC and sentence of 3 months rigorous imprisonment and to pay a fine of Rs. 200/- and in default of payment to further undergo 15 days rigorous imprisonment is maintained. Similarly their conviction under Section 325/34, IPC and sentence of 3 years rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment to further undergo 15 days rigorous imprisonment shall be maintained. All the sentences shall run concurrently. They will undergo the remaining part of the sentence. The appellant Ram Prakash is acquitted of all the charges levelled against him. He is on bail. His bail bonds stand discharged.