JUDGMENT
V.K. Bali, J.
1. Appellants Mathuralal and Mohanlal were tried with 19 of their co-accused for intentionally causing murder of Lal Singh and causing injuries to number of persons. In the resultant trial whereas, 19 co-accused of the appellants were acquitted, appellants Mathuralal and Mohanlal have been held guilty under Section 302 IPC and sentenced to undergo Imprisonment for Life as also to pay a fine of Rs. 500/-and in default of payment of fine to further undergo Simple Imprisonment for a period of one month. This order of conviction and sentence was passed against them by learned Addl. District & Sessions Judge (Fast Track No. 2) Jhalawar and it is against this order that the appellants have filed this joint appeal.
2. In the context of limited controversy involved in the case it will not be necessary to give facts in entirety. The brief facts which thus need a necessary mention reveal that the occurrence lading to death of Lal Singh and injuries to others had taken place at 7.00 AM on 11.8.99 regarding which FIR Ex.Pl was lodged by Devi Singh on the same date at 9.00 A.M.
3. While unfolding the prosecution version Devi Singh stated that today at 7.00 in the morning his brother Lal Singh was taking buffaloes for grazing. When he reached near the pond, 21 persons including the appellants came from the side of village. They were armed with axes. No sooner they came, they started beating Lal Singh. His brother Lal Singh cried for help which attracted Baden Singh S/o Ratanlal, Kalu S/o Bhairav Lal, Devi Singh S/o On Karlal, Sujan S/o Ratan Lal, Ratan S/o Nanda, Vijay Singh S/o Onkar and Hukum Chand S/o Onkarlal. They tried to rescue Lal Singh, upon which the appellants and others started beating them also. He and others received injuries on various parts of body. Mathuralal, Gokul and Mohanlal caused injuries to Lal Singh with pharsi on his head. On receipt of injuries Mohan Lal fell down. Blood started oozing from his head and he became unconscious. They brought Lal Singh in a private vehicle for treatment in the hospital where he died.
4. The prosecution examined Dr. Radhey Shyam Mehar as PW20. He stated that on 11.8.99 he had medico legally examined Bheru Lal and found three injures on his person, On the very same date he had examined Onkar Lal and found one injury on his person. He had also medico legally examined Vijay Singh and found 4 injuries on his person, Ratanlal was found to have 7 injuries on his person, Devi Singh was found to have two injuries on his person, Baneh Singh was found to have two injuries on his person and Hukum Chand was found to have two injuries on his person. Lal Singh, who later died was also examined by him. He proved medico legal report of Lal Singh Ex.P52. After the patient died the doctor conducted post mortem on his dead body. The injury found on the person of Lal Singh was described in the medico legally report as follows: –
Big lacerated wound present over the head at the parietal surface of anterior to posterior frontally 12 cm x 5 cm x 20 cm. In depth which grievous and caused by sharp weapon.
5. The doctor opined that the injuries on the person of Lal Singh were caused by a sharp edged weapon. The death in the opinion of the doctor was because of excessive bleeding and shock. In the cross examination he stated that the injuries found on the head of Lal Singh may not have been as a result of one blow and the same could as well be by two blows but with the sharp edged weapon. He further stated that a sharp edged weapon could not cause a crushed injury. The injured PWs. Kalu, Sujan, Vijay Singh, Ratan Lal, Duley Singh and Badey Singh supported the prosecution case, so far as the involvement of the present appellants is concerned. For the reason that the eye-witnesses did not implicate the co-accused of the appellants, they were acquitted.
6. Mr. P.S. Rajawat, learned counsel representing the appellants has raised only two fold contentions. It is urged by him that only one injury was found on the person of Lal Singh which was caused by a sharp edged weapon and not only in the FIR but even in the statements made by the injured eye-witnesses. Mohan Lal was stated to be armed with the lathi. In as much as, Lal Singh had received no injuries by a blunt weapon, his involvement in the commission of crime is highly doubtful. It is then contended by him that it is a case of single injury even though on a vital part of the body and therefore, the appellant Mathura Lal cannot be convicted under Section 302 IPC and the offence committed by him would fall within the provisions of Section 304 Part I IPC.
7. We have heard the learned counsel appearing for the parties and with their assistance examined the records of the case. Whereas we find considerable merit in the first contention of the learned counsel as noted above, we do not find any merit in so far as non-applicability of Section 302 IPC is concerned. Be it in the medico legal report or in the post mortem report the doctor found only one injury on the person/dead body of Lal Singh which was caused by a sharp edged weapon. The doctor nowhere stated in the examination in chief that one injury sustained by Lal Singh could be a result of two blows. It is only in the cross examination that the doctor stated that the injury found on the person of Lal Singh could be result of two blows but he then qualified the aforesaid statement by saying that the blows in any case had to be given by a sharp edged weapon. Mohan Lal as per consistent version was armed with a lathi. Once no injury has been found on the person/dead body of Lal Singh, that might have been caused by blunt weapon, participation of this accused becomes highly doubtful. It is too well settled that even if the ocular version may be consistent but if the same may militate or be in sharp contrast to the medical evidence, it has to be ignored. Mohan Lal, in our considered view has to be given benefit of doubt and acquitted. So ordered. In so far as, Mathuralal is concerned, his involvement is fully established. The injuries described by doctor and which have been attributed to appellant Mathuralal were on a vital part of the body. It was by a sharp edged weapon. It was a serious blow resulting into fracture and separating the head even though partially in two parts. The offence committed by the appellant Mathuralal looking at the nature of injury and further that it was sufficient to cause death in the ordinary course of nature, has to fall within Section 302 IPC. There is no merit whatsoever in the appeal preferred by Mathuralal.
8. In view of the discussion made above we partly allow this appeal. Whereas the appeal preferred by Mohan Lal would be allowed and he would be acquitted of the charges framed against him, the appeal preferred by Mathuralal stands dismissed. Mohan Lal, if not on bail, be released forthwith, if not required in any other case and if on bail his bail bonds be cancelled.