JUDGMENT
Prem Shankar Asopa, J.
1. The instant appeal has been filed against the judgment dated 21.5.1999 passed learned by Additional District and Sessions Judge, Jhalawar, in Sessions Case No. 44/96 (Old No. 29/94) State v. Bheru Lal and Ors. where by the appellants have been convicted and sentenced as under:-
Under Section 147 IPC Imprisonment for one year
Under Section 341 IPC Imprisonment for one month
Under Section 302/149 IPC Life Imprisonment and a fine of Rs. 500/- each,
in default of payment of fine, further imprisonment of one month.
Under Section 323 IPC Imprisonment of One year. All the sentences were ordered to run concurrently.
2. Briefly stated the prosecution story is that on 6.1.1994, a report was lodged by injured Bhanwar Lai at Police Station Aklera, district Jhalawar stating therein that all the appellants first obstructed him and then inflicted lathi blows upon him near the Well of Amar Chand while he was going to his village Tharol from Aklera in a bullock cart. It was further stated that Jagdish inflicted lathi blows on the back side of his head, Bheru Lai inflicted a lathi blow on the left side of his back as a result of which he fell from the bullock cart. Thereafter Kalyan and Ors. have inflicted lathi blows and believing him dead, they ran away from the scene of occurrence. On raising hue and cry, Bheru Lai s/o Narayan, Prabhu Lai s/o Rama Meena, resident of Tharol and his son Gulab Chand came there and witnessed the incident. It was also stated that on account of old enmity with him and Virdhi Lal and Heera Lai, the accused appellants inflicted lathi blows with an intention to cause death. The complainant died in the night on the same day in the hospital.
3. Initially, the Police registered an F.I.R. No. 3/94 for offences Under Sections 147, 149, 307, 341 and 323 IPC. But subsequently on death of injured informant, Section 307 IPC was converted into Section 302 IPC.
4. All the accused appellants were charged for the offences Under Sections 147, 341, 302/149 and 323 IPC. The charges were read-over to them and they denied the charges and claimed trial.
5. The prosecution produced PW. 1 Rang Lal, PW. 2 Gopi Lal, PW. 3 Prabhu Lal, PW. 4 Onkar Singh Meena, PW. 5 Mohan Singh, PW. 6 Mangi lal, PW. 7 Ghasi Lal, PW. 8 Lal Chand, PW. 9 Kanha, PW. 10 Prabhu Lal, PW. 11 Bardi Lal, PW. 12 Dr. S.K. Pathak, PW. 13 Gulab Chand and PW. 14 Bheru Lal and further got exhibited 27 documents in evidence.
6. Statements of the accused appellants were recorded Under Section 313 Cr.P.C. No evidence in defence was led by accused appellants.
7. As per Ex. P. 24 Injury Report of Bhanwar Lal, there were five injuries caused by blunt weapon. PW. 12 Dr. Shaktidhar Pathak in his statement deposed that the injury Nos. 1, 2 and 5 resulted in fracture in the bones and were sufficient in the ordinary course of nature to cause death of Bhanwar Lal.
8. The trial Court has framed four questions arising from the charges, out of which Question Nos. 1 and 3 relate to formation of unlawful assembly to cause the death of Bhanwar Lal and remaining two questions Nos. 2 and 4 relate to wrongful confinement and intentionally causing simple injuries.
9. Learned Additional Sessions Judge, after hearing both the parties and considering the evidence, vide judgment dated 21.5.1999 convicted and sentenced the accused appellants for all the offences as indicated above.
10. The submission of counsel for the accused appellants is that there is no evidence that the accused appellants Shyam Lal, Ram Karan, Virdhi Lai and Heera Lai were the members of unlawful assembly in prosecution of the common object of that assembly they have committed the offence alleged, for which the charge has been framed. The further submission of the counsel for the accused appellants is that after excluding the four persons above named, there could not have been unlawful assembly in respect of the remaining three accused namely Bheru Lal, Kalyan and Jagdish, being less then five in number, therefore, their conviction Under Section 149 IPC and other offences is not sustainable. As regards the offence Under Section 302 IPC, intention of causing death was not proved.
11. Learned Public Prosecutor supported the judgment of learned Additional Sessions Judge and submitted that there is enough evidence of formation of unlawful assembly and for committing the offence with the common object, to cause death and injury Nos. 1, 2 and 5 resulted in the death of Bhanwar Lal.
12. We have gone through the record of the case arid considered the submissions made by learned Counsel for the parties.
13. As regards the submission of accused appellants that in the F.I.R. there are three eye-witnesses namely Bheru Lai s/o Narayan, Prabhu Lal s/o Rama Meena and Gulab Chand son of the deceased, out of which one Prabhu Lal s/o Rama Meena was not produced in evidence by the prosecution and Bheru Lal was declared hostile and further Gulab Chand came on the spot after hearing hue and cry. Otherwise also he is an interested witness being son of the deceased. Further submission of counsel for accused appellants is that PW. 1 Rang Lal is a resident of village Kharpa. He was not able to establish his presence at the place of occurrence. PW. 2 Gopi Lai was declared hostile and PW. 6 Mangi Lal is son of maternal uncle of the deceased and his presence is doubtful at the place of occurrence. Otherwise also he being a relative is an interested witness. PW. 7 Ghasi Lal is also not an eye witness and he himself has stated that he has repeated the things which were told by deceased Bhanwar Lal. PW. 10 Prabhu Lal and PW. 11 Bardi Lai are the’witnesses of seizure memo of clothes and recovery of weapons but the same has not been proved before the trial Court. PW. 13 Gulab Chand is son of deceased Bhanwar Lai whose statement is contradictory as well as vague. As per his statement he came on the scene of occurrence after hearing hue and cry raised by deceased Bhanwar Lal. He has also stated that 5-50 lathi blows were inflicted, whereas according to the medical evidence there are only five injuries. PW. 14 Bheru Lal has also been declared hostile. We are of the view that testimony of the aforesaid witnesses can not be wholly discarded. These witnesses had consistently deposed that lathi blows were inflicted by Bheru Lal, Kalyan and Jagdish.
14. That the doctor who has examined the deceased and further conducted the post-mortem report has categorically stated that there were five injuries out of which Injury Nos. 1, 2 and 5 were sufficient to cause death. But the fact is that eight persons have been made accused and there are only five injuries and the possibility of over implication can not be ruled out.
15. Having considered the evidence on record as detailed out herein above and further going through the entire record we are of the view that there is no evidence of forming the unlawful assembly. The four accused appellants viz. Shyam Lal, Ram Karan, Virdhi Lal and Heera Lal were not the members of unlawful assembly in prosecution of the common object to cause death, therefore, they are acquitted of the charges Under Sections 147, 341, 302/149 and 323.
16. As discussed in the proceeding paras the accused appellants Bheru Lai, Kalyan and Jagdish, there is consistent evidence on record that they have caused lathi blows, which resulted in five injuries and Injury Nos. 1, 2 and 5 resulted in death of Bhanwar Lai. But in our opinion, their case falls within the category of culpable homicide not amounting to murder Under Section 304(1) IPC.
17. The counsel for the accused appellants relied on two judgments of this Court reported in Gopal and Anr. v. State of Rajasthan R.C.C. 2005 (1) 444 and Ram Swaroop and Ors. v. State of Rajasthan R.C.C. 2006 (1) 96. In the case of Gopal (supra) conviction was converted from Section 302 to 304 Part II IPC on account of the fact that there was solitary lathi blow and no repetition of lathi blow and there was no intention to cause death. The case of Ram Swaroop (supra) was of sudden fight with lathi and danda and there were four injuries, therefore, the conviction was converted from Section 302 to 304 Part I IPC. Both the above cited cases of this Court by counsel for the accused appellants relate to Section 302 read with 34 IPC. The present case is of Section 149, 302 IPC etc. and the only common thing is constructive criminality. Otherwise Section 34 IPC relates to common intention which presupposes ‘prior concert’ and the same is not itself an offence, whereas Section 149 IPC relates to common object of unlawful assembly and the said element of prior concert is absent in Section 149, which is meant for punishment of substantive offence Under Section 141 IPC. But the constructive criminality is over when the prosecution fails to prove aforesaid ingredients of the said Sections and the accused is liable for injury/injuries caused by him individually.
18. As discussed above here in the instant case also there was no evidence of formation of an unlawful assembly in prosecution of the common object of that assembly, therefore, the later case is applicable to the facts of the present case.
19. For these reasons we dispose of the instant appeal in the following terms:-
(1) We allow the appeal of appellants Shyam Lal, Ram Karan, Virdhi Lal and Heera Lal and acquit them of the charges Under Sections 147, 341, 302/149 and 323 of Indian Penal Code. These appellants are on bail, they need not surrender and their bail bonds are discharged.
(2) We partly allow the appeal of Bhairu lal, Kalyan and Jagdish and instead of Section 302/149, we convict each of them Under Section 304-1 IPC and sentence each of them for rigorous imprisonment of 10 years and a fine of Rs. 5,000/-, in default of payment of fine to further suffer six months RI. We however acquit them of the charges Under Sections 147, 341 and 323 IPC.
(3) The impugned judgment is modified as indicated herein above.