JUDGMENT
K. Bhatnagar, J.
1. In a trial for the charges Under Sections 302, 34 and 447 IPC, the learned Sessions Judge, Churu held the appellants Mani Ram, Bhanwari and Mohini guilty Under Section 302 read with Sections 34 and 447 IPC and sentenced them each for life imprisonment and a fine of Rs. 2000/-, in default to six months rigorous imprisonment on the first count and one months rigorous imprisonment on the second count. Feeling dissatisfied by their conviction and sentences, the three appellants have preferred this appeal.
2. Briefly stated, the prosecution case is that Surja Ram (PW 6) had three sons viz. Sugna Ram, Jagdish and Durga Ram. Durga Ram became a hermit. Sugna Ram was given land at Rajasar. Thirty-eight bighas of land at village Kohina was cultivated by Surja Ram himself and his son Jagdish. Sugna Ram returned from Rajasar and demanded share of land at Kohina. At the intervention of the panchas, eight bighas of land was given to Sugna Ram by Surja Ram which was cultivated by him.and his family. This caused annoyance to Jagdish and the relations between the two brothers i.e. Sugna Ram and Jagdish became strained. On 11.11.82, Sugna Ram’s she-buffalos entered the field of Jagdish. Jagdish drove them out. Feeling aggrieved Sugna Ram’s wife Mohini, his son Mani Ram and daughter Bhanwari, present in their field object to it and went near Jagdish outside the field. Mohini is said to be armed with Gandasi at that time and Mani Ram and Bhanwari with lathies. The three appellants started beating Jagdish and inflicted blow on his head. He fell down. Lichhma (PW 5) wife of Jagdish present in the field at a little distance rushed to his rescue and fell over Jagdish lying on the ground. The assailants caused injuries to her also. Narayan Singh (PW 1), a laborer working at the field of Surja Ram and Jagdish, while returning to his house turned back on hearing the cry of Lichhma and saw the appellants giving a beating to her and her husband jagdish. Surja Ram and Narayan Ram took Jagdish to his house and thereafter to Taranagar Hospital and reached there at 1.45 p.m. Dr. S.S. Sekhawat (PW 3) examined the injuries of Jagdish and prepared the Injury Report Ex. P. 9. The doctor noted following injuries on his person.
1. Abrasion 1″ x 1/8″ on scalp on left parietal region, oblique in direction. Clotted blood was present on the surface.
2. Abrasion 2″ x 314″ on left temporal region situated above and in front of pinna of external ear. Swelling of the adjacent tissue present over the surface.
3. Abrasion 1/2″ x 1/10″ on right flank, situated superior to iliac spine. Clotted blood present over the surface.
According to the doctor all the injuries were by blunt object and could be caused by lathi. For injuries No. 1 & 2 X-ray was required. Injury No. 3 was simple in nature. On 12 11.82, Jagdish succumbed to the injuries sustained by him at 9.15 a.m. Dr. Sekhawat conducted the post-mortem examination of the dead body of Jagdish and noted as under
The patient was brought to the hospital in unconscious state after sustaining injuries of scalp and temporal region. General condition was poor. His condition gradually declined and he expired at 9.50 a.m.
He was-average built and nourished. Rigor mortis was not present. No post-mortem staining was present. There was no discharge from orifices. Eyes were closed. Mouth was half open. There were following injuries on his body:
1. Abrasion, 1″ x 1/8″ on scalp, on left parietal region oblique in direction. Clotted blood was present over the surface.
2. Abrasion 2″ x 314″ on left temporal region situated above and in front of pinna of external ear. Clotted blood was present over the surface.
3. Abrasion 112″x 1110″ on right flank situated superior to the iliac spine. Clotted blood was present over its surface.
Internally in the skull, epidural haemetoma was present in left from to parietal area, depressing brain matter. Sub-dural haemaioma was present in left parietal area. There was a laceration, 3/4″ x 3/4″ X 1/4″ in left parietal area of brain matter. Widening of the following sutures was present
1. Sagittal suture at anterior frontal area.
2. Right from to-parietal suture upto base of skull.
3. Left tempro-parietal suture ” There were following fractures present.
1. Depressed fracture of left temporal bone.
2. Fracture of right frontal bone.
3. Fracture of right parietal bone.
4. Fracture of left frontal bone resulting in multiple pieces.
5. Fracture of left parietal bone.
6. Fractural of left temporal bone, communicating upto base of skull.
All the injuries according to the doctor were ante-mortem in nature. The cranial injury was found to be sufficient in the ordinary course of nature to cause death. The cause of death was shock and haemorrhage due to extensive cranial injuries. The post-mortem Examination Report is Ex.P.10. On 12.11.82 on receiving information Ex.P.3 from Dr. Sekhawat about Jagdish being admitted in hospital in injured condition, Bhanwarlal, v. SHO of Police Station, Tara agar went to the hospital. Surja Ram, father of Jagdish, submitted to him the written information Ex.P.8. Case Under Sections 307, 323, 34 IPC was registered. On the death of Jagdish deffence Under Section 307 was converted to one Under Section 302, IPC. The Inquest Report of the dead body of Jagdish Ex.P.19 was prepared by SHO. He also prepared Panchayatnama of the dead body Ex.P.20. The SHO went to the site and made investigation there. On 12.11.82 he arrested Mani Ram vide Memo Ex.P.27. While under custody, appellant Mani Ram furnished information for getting recovered one lathi and in pursuance of that information he got recovered one lathi (Article 2) from beneath the heap of grass in his field. On 12.11.82, appellant Mohini was arrested vide Memo Ex. P. 28. She also furnished information for getting one Gandasi recovered and got recovered Gandasi (Article 6) from her house. On 17.11.82, Bhanwari, appellant was arrested vide Memo Ex.P.17. At that time she produced one lathi before the SHO which was taken in possession. On 13.11.82, SHO examined Narayan Singh “and Lichhma. The articles were sent for chemical examination. Human blood was found on one lathi, clothes of the deceased and the blood soiled earth. At the time of arrest, two appellants had injuries on their person. On 12.11.82, Dr. Megh Singh examined the injuries of Mohini and prepared the injury Ex.D.S. The doctor noted following injuries on her person:
1. Abrasion, 1/2″ x 1/8″, on the back over the base of left thumb. It was associated with diffused swelling and tenderness. Scale formation had set in.
2. Abrasion, 1/2″ x 1/4″, in middle of alnar aspect of left fore-are. It was tender and serum discharge was present.
Both the injuries were by blunt object and simple in nature. On that very day in the evening Dr. Megh Singh examined the injuries of Mani Ram and prepared report Ex.D.3. Doctor noted following injuries on his person
1. Abrasion, 1/4″ x 1/4″, on upper and back part of left shoulder at lateral end of clavicle bone. Scale formation had set in.
2. Diffused swelling around lower part and base of left thumb. It is tander.
The injuries were simple in nature caused by blunt object. On 13.11.82, the doctor examined the injuries of Lichhma and noted as under:
1. Bruise 3″ x 1″, on the postero-laterai aspect of middle of right arm. Colour was blue at periphery and red in the centre.
2. Abrasion, 1/8″ x 7/8″, on base of back of right little finger, scale formed.
3. Bruise, 5″ x1″, on antero-lateral aspect of lower part of right thigh, oblique in direction, colour was blue at periphery and red in the centre.
4. Bruise, 3″ x 1″, on lateral part of left lumber region, oblique in direction. Colour was blue at periphery and red in centre.
5. Abrasion, 1″ x 1/4″, on right parietal area of scalp. It was anterior to the right parietal eminence, scale formed.
6. Abrasion, 1/10″ 1/10″, on base of back of little finger.
All the injuries were simple in nature and caused by blunt weapon. The injury Report is Ex.P.I.
3. Upon completion of necessary investigation, charge sheet against the three appellants was filed in the Court of Munsif & Judicial Magistrate, Rajgarh. The learned Magistrate committed the case to the court of Sessions Judge, Churu. The learned Sessions Judge charge sheeted the appellants as states earlier and recorded their plea. All of them denied the allegations and claimed to be tried. Prosecution examined 9 witnesses in all to substantiate its case. Mohini stated that she was at her house at that time and injuries were caused to her by cow. Bhanwari pleaded alibi. Mani Ram stated that on the date of occurrence he and Jagdish were in their respective fields and Narayan Singh, Lichhma and Surja Ram were not there. When he was to his house in the evening, Jagdish attacked from behind and inflicted lathi blow. In order to save himself he wielded lathi which it being dark, hit the head of Jagdish. Jagdish fell down. He ran to the village and informed there. He denied to have got recovered lathi, No defence witness was examined. The learned Judge placed reliance on the testimony of the three eyewitnesses and passed the judgment under appeal.
4. We heard MR. Sunil Mehta, learned Counsel for the appellant and Mr. Kanti Lal Jasmatiya, learned Public Prosecutor for the State.
5. The learned Counsel for the appellant has assailed the findings of the learned trial Judge on a number of grounds. According to him Surja Ram and Lichhma being father and the wife of the deceased respectively, were interested witnesses and conviction should not be based on the testimony of partison witnesses, especially when from Surja Ram’s statement it is evident that Jagdish was aggrieved on account of Sugna Ram, his brother, getting 8 bighas of land from his father which he was cultivating along with his father. Another argument advanced by the learned Counsel is that it is a case of over implication because Surja Ram in the first information report has named Sugna Ram as the assailant and being armed with Jai but subsequently dropped him and Bhanwari whose name was not there in the first information report, was toped in. The learned Counsel submitted that in the first information report, there is no reference of Lichhma sustaining any injury and therefore her presence also because doubtful. Regarding Narayan Singh, the contention of the learned Counsel is that in his police statement of this witness as well as other witnesses it has come that he was working in the field of Sugna Ram on that fateful day but in the Court deposition all of them have stated that he was working in the field of Jagdish; The learned Counsel-submitted that Surja Ram could not have seen the occurrence and Narayan Singh and Lichhma according to their own version reached the site after Jagdish falling down and as such none of them could have seen as to how the quarrel started and who was the assailant.
6. The learned Public Prosecutor controverter these contentions and submitted that the prosecution case stands duly established by the testimony of Surja Ram and Lichhma who in the natural course of events must have been there in the field and Narayan Singh being a laborer with them must be also have been there. The minor discrepancies in the statements before the police and in the Court of the witnesses according to the learned Public Prosecutor being on account of lapse of time have rightly been ignored by the learned trial Judge while living the finding. At the very outset it may be observed that the relations between the two brothers namely Sugna Ram and Jagdish were not cordial. Surja Ram has admitted that Jagdish was annoyed on account of Panchas asking Surja Ram to part with 8 bighas of land out of 38 bighas of land in his possession cultivated by him and Jagdish. The quarrel is said to have taken, place at the she-buffalows of Sugna Ram entering the field of Jagdish and at Jagdish driving them out, the three appellants objecting to it. As narrated in the first information report made by Surja Ram, he is the father of deceased Jagdish and Sugna Ram and Sugna Ram is husband of appellant Mohini and father of appellants Mani Ram and Bhanwari. There is substance in the submission of the learned Counsel for appellants that Bhanwari’s name not being there in the first information report it is clear that subsequently after thinking over the matter Surja Ram excluded his son Sugna Ram and roped in Bhanwari. Statements of Lichhma and Narayan Singh were recorded after the death of Jagdish. The initial version was of Surja Ram who did not tell about Bhanwari being an assailant. Lichhma has stated that the quarrel had taken place ten pawandas away from the footpath and she was at a distance of ten pawandas. She has stated that Sugna Ram was not at the site I occurring in It appellants had become union on hearing her when he was not at the site that day. He had gone to Rajasar. It is a version different from the one occurring in the first information report by Surja Ram. According to her all the appellants had started beating her husband with the weapons they had. He fell down and become unconscious. She rushed to her husband and fell on him and raised a cry. That, on hearing her cry Narayan Singh came. Narayan Singh has stated that in the evening when he was going to his house he heard the noise and turned back and saw the assailants giving a beating to Jagdish.
7. In their statement before the police Surja Ram and Lichhma have stated that that day Narayan Singh was working in the field or Surja Ram but in the Court they have stated that he was employed to work in the field of Jagdish on that day. The pertinent question, however would be as to whether he was in a position to see the quarrel from its start. According to him he was at a distance of 20 to 25 pawandas. He has categorically stated that he being at a distance could not see as to who inflicted the first blow. According to him it was after Jagdish falling down that his wife Lichhma came there. When this witness could not have seen as to which assailant caused injury first of all and on which part of the body, Lichhma could not have also seen so.
8. Two appellants, Mani Ram and Mohini had injuries at the time of their arrest on 12.11.82. The defence story at the time of cross examination of the prosecution witnesses appears to be that it was a case of free fight and private defence but Mohini in her statement Under Section 313, Cr.P.C. stated that she was not at all there at the site rather was at her house and the cow had injured her. Mani Ram had of course admitted his presence at the time of quarrel and he being armed with lathi. But his defence is that Jagdish instigated the quarrel by inflicting lathi blow on him and being order to save himself wielded lathi which it being dark hit the head of Jagdish.
9. From the above discussion, two things are clear. Firsly, the initial story brought forth in the first information report has been improved subsequently. Sugna Ram has been mentioned in the first information report but none of the witnesses have stated that he was there. Not only that, Lichhma has categorically stated that Sugna Ram was at Rajasar on that day. In the first information report, Surja Ram has also admitted that but in the cross examination he stated that he had wrongly mentioned the name of Sugna Ram. He has not stated it was per mistake but asserted that he had done so on account of anger. If a person out of anger may falsely implicate even his son, there is also possibility of his falsely implicating other members of the family of son with whom he was aggrieved.
10. Name of Bhanwari not being there in the first information report also raises susprcion about the prosecution case about her being the assailant. She has been arrested on 17.ll.82. The prosecution case is that at the time of her arrest she gave a lathi to the SHO, which he took in possession. It have further to note that that lathi did not have human blood according to the serologist report. It so appears that initially Sugna Ram was mentioned in the FIR but subsequently having come to know that Sugna Ram was not there in the village and had gone to Rajasar all the members of his family present in the village were involved in the matter. So far as Mohini is concerned, suffice it to say that there is no injury with Gandasi though she is said to be armed with Gandasi. Lichhma had stated that Mohini had inflicted blow from the sharp side, which hit her head. None of the injuries of Lichhma were by sharp edged weapon. Similarly, there is no Gandasi injury sustained by Jagdish even. As such no overact can be assigned even to her if she night be present at the site.
11. Mani Ram his not denied his presence. He had admitted that his lathi hit Jagdish at the head but denied the allegation of being the agressor. The statement of the accused is to be believed or discarded as a whole. In other words it is not permissible that one part may be pressed into service and the other rejected. But in a case like the present one when from prosecution witnesses it is established that Mani Ram was there and was the assailant and the lathi recovered from him in pursuance of the information furnished by him was found to be stained with human blood, the injuries of deceased Jagdish are proved to have been caused by him.
12. In view of the above conclusion, the point for consideration would be whether Mohini may be held vicariously liable for the act of Mani Ram. At the time of occurrence, Surja Ram was at a distance of 100 paces. He admitted that he could see only up to 10 to 15 paces and not beyond that. He also admitted that he had seen the incident only when he reached at the place of occurrence where all the three appellants were present and Jagdish was lying unconscious and Lichhma was over him. According to Lichhma, the assailants had inflicted a number of injuries on the head, face and whole of the body of her husband Jagdish. The fields of Surja Ram and Jagdish being adjacent to each other, presence of Mohini at the time of incident of the quarrel between Jagdish and Mani Ram because of Jagdish driving the she buffalows of Mani Ram, cannot be said to unnatural. However, mere presence will not attract the provisions of Section 34, especially when the prosecution case about her using Gandasi from the sharp side stands falsified from the medical evidence. We are therefore, left with the case of Mani Ram the author of the injuries caused to Jagdish.
13. It is important to note that there is no charge against any of the appellants for the injuries of Lichhma. The appellants have rather been charge sheeted for trespassing the field of Surja Ram and have therefore been held guilty Under Section 447, IPC. From the material on record, the place of occurrence does not appear to be the field of Surja Ram and Jagdish. It was rather on the ‘Pagdandi’ and therefore offence Under Section 447, IPC is not made out. Mani Ram alone being responsible for the injuries of Jagdish, Section 34 would not be attracted. The appellant was charge sheeted for the offence Under Section 302 simplicitor also and therefore his case would not be prejudiced if he is convicted for his own act.
14. The learned Counsel for the appellants next argued that even if the prosecution case against Mani Ram is held to be established still in the given circumstances, he cannot be attributed with the intention to commit the murder of Jagdish. The relations between the two familier were of course strained but the incident had taken place on a trivial matter i.e. the she buffalows of Sugna Ram entering the field of Jagdish and the latter driving them out and Mani Ram inflicting lathi blows to Jagdish. Injuries No. 1 & 2 are said to be dangerous to life. The doctor stated that both of them could be caused by one single blow. Injury No. 3 is designated to be simple in nature. If in the circumstance i.e. the quarrel in suing on a trivial matter, Mani Ram inflicted lathi blow on the head of Jagdish he cannot be attributed with intention to commit murder or intention to commit any such bodily injury which might cause death. However, a person inflicting lathi blow with such force that the injury by that blow might prove fatal to the victim, may be attributed with the knowledge of causing such bodily injury which may likely cause death. The case of Mani Ram there fore, falls within the ambit of Section 304 Part II, IPC. Sentence of six years rigorous imprisonment and a fine of Rs.1000/- would, in our opinion meet the ends of justifice.
15. Consequently, the appeal of Bhanwari and Mohini is allowed. Their conviction and sentences are set aside. They are already on bail. Their bail bonds stand discharged. The appeal of Mani Ram is partly allowed. His conviction and sentence awarded by the trial Court are self aside. He is instead of convicted Under Section 304 Part II and sentenced to six-yearsr rigorous imprisonment and a fine of Rs.1000/-, in default to undergo six months’ rigorous imprisonment. The amount of fine when recovered shall be paid to Lichhma, wife of deceased Jagdish. Appellant Mani Ram is in custody since the date of his arrest i.e. 12.11.82 and has suffered the substantive sentence awarded to him. On his depositing the amount of fine awarded by this judgment, he shall be set at liberty, if not required in any other case.