JUDGMENT
Amaresh Kumar Singh, J.
1. All the three appeals are directed against the judgment dated 21-7-1978 passed by the learned District and Sessions Judge, Churu in Sessions Cases No. 23/78 and 24/78. It is therefore, proper to dispose of all the three appeals together.
2. Accused Badri Das and Rameshwar were committed to the Court of learned Additional District and Sessions Judge, Churu by the learned Chief Judicial Magistrate vide order dated 2-5-1977 for trial of offences punishable Under Section 302 read with Section 34, I.P.C. On the same day. six accused persons, namely, Mukharam, Parturam, Viram Das, Chander Das, Khamana Ramand Mohan were also committed to the Court of learned Additional District and Sessions Judge, Churu by the learned Chief Judicial Magistrate. Churu for trial of the offences punishable Under Sections 302 read with Section 149 and 114. I.P.C. Badri Das and Rameshwar were committed to the Court of Session after taking cognizance on a police report submitted Under Section 173. Cr.P.C. and accused Mukharam, Parturam, Viram Das, Chander Das, Khamna Ram and Mohan were committed to the Court of learned Additional Sessions Judge, Churu after taking cognizance on a private complaint filed by Tarachand. Two separate sessions cases Nos. 23/78 and 24/78 were registered in the Court of learned Additional Sessions Judge, Churu. The trial in both the cases was conducted together and by common judgment dated 21-7-1978 both the sessions cases were disposed of by the learned Sessions Judge, Churu. The learned Sessions Judge, Churu convicted and sentenced Rameshwar Under Section 302, I.P.C. and Badri Das under Section 302 read with Section 34, I.P.C. and acquitted Mukharam, Partu Ram, Viram Das, Chander Das, Khamana Ram and Mohan of all the offences with which they were charged. D.B. Criminal Appeal No. 281/1978 has been filed by the accused persons, namely, Badri Das and Rameshwar who were convicted and sentenced as mentioned above. D.B. Criminal Appeal No. 377/79 has been filed by Tarachand against the order of acquittal and D.B. Criminal Appeal No. 378/79 has been filed by the State of Rajasthan against the order of acquittal passed by the learned Sessions Judge, Churu.
3. The facts of the case may be summarised as below:
On 24-11-1976 at about 5.00 P.M. Tarachand orally gave a first information report at the Police Station, Bhanipura to the effect that on 14-11-1976 he went to Malsar in order to meet his sister Gceta who was wedded to Surat Das Swami. It was further stated in the first information report that the litigation was pending in Nizamat Churu between Surat Das and Badri Das in respect of a piece of land in which Surat Das had sown crop of Gwar but Badri Das has trespassed over the land. Badri Das and his son Rameshwar alongwith Mohan were carrying the crop of Gwar in a cart towards the village. When they reached the field of Shera Jat Surat Das objected to the carrying of crop by them and demanded that the crop should not be carried away as the matter was pending in the Court. Thereafter Badri said ^^nq’eu vk x;k gS bls ekj yks** and Badri who was armed with lathi and Rameshwar who was armed with a spear (Bhala) ran towards Surat Das in order to assault him. According to the version given in the first information report Badri Das hurled a lathi blow on Surat Das and in response Surat Das inflicted a lathi blow on the head of Badri. Rameshwar inflicted a blow on the stomach of Surat Das with spear. As a result of that blow Surat Das fell on the ground. Meanwhile Shera Ram, Dungar Ram and Hadman residents of Malsar reached the spot and they intervened. The first informant Tarachand reached the spot when Badri Das and Rameshwar were running away from the scene of occurrence. Tarachand saw Surat Das in an injured condition lying on the ground with an injury on his stomach. He was told by Surat Das that Rameshwar had caused the injury to Surat Das with a spear and Badri Das had hurled a lathi blow which was avoided. It was also stated in the first information report that Tarachad proceeded towards the Police Station in order to lodge the first information report and while departing from the scene of occurrence he asked Shera Ram to take Surat Das to the hospital so that his life might be saved. On the basis of the first information report lodged by Tarachand the police registered a case Under Section 307, I.P.C. During the investigation Surat Das succumbed to his injuries. After investigation the police submitted a challan Under Section 173(2), Cr.P.C. against Rameshwar and Badri Das.
4. Tarachand filed a complaint against a accused persons including Rameshwar and Badri Das alleging commission of offences punishable Under Sections 302,379,147, 148 and 149,I.P.C. The learned Chief Judicial Magistrate, Churu after recording the statement of the complainant and his witnesses Under Sections 200 and 202, Cr.P.C. committed the accused to the Court of learned Additional District and Sessions Judge, Churu. In the complaint filed by Tarachand it was alleged that Surta Ram deceased was the only son of his parents and after the death of his father Surta Ram was the sole successor to the properties left by his father and Badri Das, Chander Das, Viram Das and Rameshwar wanted to deprive Surta Ram of his properties and they had made attempts to unlawfully occupy the fields of Surta Ram but Surta Ram had obtained a stay order from the court and therefore, Badri Das and his party developed a grudge against Surta Ram and when the crop sown by Surta Ram in his field measuring 45 bighas became ripe Badri Das and other accused persons made a plan to reap and take away the crop sown by Surta Ram and they openly declared that they would not allow Surta Ram to take away the crop. Surta Ram thereafter instituted proceedings Under Section 107, Cr.P.C. in the Court and he kept Sohan Das Swami with him. It was also alleged in the complaint filed by Tarachand that Badri Das and his party collected 15 to 20 persons with a view to carry out to their illegal design and Surta Ram also called 8-10 persons and thereafter some negotiations took place in the Panchayat held on 30-10-1976 and these negotiations continued up to 3-11-1976. It was also stated in the complaint that in the Panchayat the parties agreed to arrive at a compromise but on 11-11-1976 which was a date of hearing in the case, Badri Das and his party refused to abide by the terms of the compromise and asserted that they would settle the dispute with force of their lathis. Badri Das thereafter asked Surta Ram to give up the possession of his field. On 18-11-1976 Tarachand, Sohan and mother of Surta Ram requested Khamana Ram to intervene but Khamana Ram asked Surta Ram to hand-over the land to Badri Das otherwise the dispute would be settled by taking the life of Surta Ram. On 19-11-1976 the accused persons went to the house of Surta Ram and asked him to give the possession of the field and threatened to take away the crop by force and also threatened to assault with Bhala in the event Surta Ram preferred not to give the possession of the field. On 19-11-1976 at about 12.00 a.m. when Surta Ram and Tarachand were working in the field the accused persons who were duly armed with lathis, spear and jeis entered the field of Surta Ram and forcibly took possession of the crop which belonged to Surta crop in the cart. At that time Surta Ram requested the accused persons not to take away the crop. Khamana Ram aimed his spear at Surta Ram and threatened him. Chander Das, Badri Das and other accused persons placed the crop in the carts and by use of force they proceeded to take it away. Tarachand and Surta Ram followed the carts in which the crop was being taken away. When the cart in which the crop was being carried reached the field of Shera Ram the mother of Surta Ram and Sohan Das reached the spot at that time Surta Ram said that he would go to the police station to lodge the report. Khamana Ram then handed over his spear to Rameshwar and asked Rameshwar and Badri Das to kill Surta Ram then and there. Thereafter Chander Das and Viram Das surrounded Surta Ram and Badri Das hurled a lathi blow on Surta Ram which was avoided by the later and at the instigation of Khamana Ram, Rameshwar inflicted a spear blow on the stomach of Surta Ram. As a consequence of that injury Surta Ram fell on the ground.
5. After committal of the cases instituted on police report and the complaint filed by Tarachand the learned Sessions Judge, Churu framed charges against Khamana Ram, Mukhara, Chander Das, Viram Das and Mohan Under Sections 147, 148, 302 read with Sections 149 and 302 read with Section 114, I.P.C. Badri Das and Rameshwar both were charged Under Section 302 read with Section 34, I.P.C.
6. The accused persons pleaded not guilty to the charges framed against them. During the trial, the prosecution examined Jaggu Gir PW-1, Jairam Singh PW-2, Dr. Paras Ram Sharma PW-3, Ram Vilas PW-4, Shera Ram PW-5, Dr. Jagdish Prasad Kabra PW-6, Puran Das PW-7, Ram Narain PW-8, Ram Dayal PW-9, Adu Nath PW-10, Shyama Ram PW-11, Dungar Ram PW-12, Chandsingh PW-13, Tarachand PW-14, Mst. Muli PW-15, Kanaram PW-16, Bhera Ram PW-17, Gopal PW-18, Devendra Singh PW-19, Atma Singh PW-20, Sohan Das PW-21, Kishan Das PW-22, Harichandra Bhagat PW-23 and Banwari Lal PW-24 in support of the prosecution case. Accused persons were examined Under Section 313, Cr.P.C. Ramu Nath DW-1, Lichhman Ram DW-2, Dr. Navin Chandra Sharma DW-3, Ishwar Singh DW-4, Phusa Ram DW-5 and Bhera Ram DW-6 were examined in defence.
7. After taking into consideration the evidence produced by the parties and hearing the arguments, the learned Sessions Judge convicted and sentenced Rameshwar Under Section 302, I.P.C. and Badri Das Under Section 302 read with Section, 34, I.P.C. as mentioned above. The remaining six accused persons were acquitted of all the charges framed against them.
8. The learned Public Prosecutorhas supported the conviction of Rameshwar and Badri Das but he has submitted that the acquittal of Mukha Ram, Partu Ram, Viram Das, Chander Das, Khamana Ram and Mohan was not justified as there is ample evidence on the record to prove that these accused persons constituted unlawful assembly with the common object of forcibly taking away the crop of the deceased and that the deceased was murdered in prosecution of the common object of the unlawful assembly. He has, therefore, prayed that the appeal against acquittal be accepted and Mukha Ram, Partu Ram, Viram Das, Chander Das, Khamana Ram and Mohan should be convicted Under Sections 147, 148 and 302 read with Section 149, I.P.C.
9. The learned counsel for the accused persons have supported the order of acquittal and submitted that there is no sufficient evidence to prove any offence against the accused Rameshwar and Badri Das. He has, therefore, prayed that D.B. Criminal Appeal No. 281/1978 filed by Badri Das and Rameshwar be allowed and both of them be acquitted of the charges Under Section 302 read with Section 34, I.P.C.
10. We have carefully considered the rival arguments and the evidence adduced by the parties and the reasons given by the learned Sessions Judge, Churu for arriving at the conclusion given in the judgment.
11. Out of 24 witnesses examined by the prosecution, Tarachand PW-14 is an eye-witness of the incident and the author of the First Information Report. Shera Ram PW-5, Puran Das PW-7, Dungar Ram PW-12, Tarachand PW-14, Muli PW-15, Kanaram PW-16, Devendra Singh PW-19 and Sohandas PW-21 are alleged to be the eye-witnesses of the occurrence. These witnesses have been examined by the prosecution. On the other hand the accused have also examined two alleged eye-witnesses of the occurrence. They are Ishwar Singh DW-4 and Foosa Ram DW-5.
12. Dr. Paras Ram Sharma PW-3 conducted the post-mortem examination of the dead body of Surta Das and he also examined some of the injured persons. He has proved the Post-Mortem Examination Report and Medico Legal Report. Dr. Jagdish Prasad Kabra PW-6 has been examined to prove the injuries of Surta Das. He has also deposed about the dying-declaration recorded on Ex.P/8. The accused have also examined Dr. Navin Chandra Sharma DW-3 to prove the injuries of Khamana (who has already been acquitted by the learned Sessions Judge).
13. Jairam Singh PW-2 is the Patwari, who has been examined to prove that the field in dispute was in possession of the complainant party. Ram Narayan PW-8 is the Executive Magistrate, before whom proceedings u/Section 107, Cr. P.C. were initiated. Ram Dayal PW-9 is the police constable to whom oral first information about the incident was given by Tarachand. Chand Singh PW-13 is the Police Officer, who inspected the dead body of Surta Das and prepared the Inspection Memo. Shyamaram PW-11, Kishandas PW-12 and Banwarilal PW-24 have been examined to prove that prior to the incident a compromise had been effected between the parties. Atma Singh PW-20 is the Investigation Officer. Harichandra Bhagat PW-23 is the Police Officer, who made recovery of a Bhala and a Lathi. Gopal PW-18 has been examined to prove the threats given by the accused persons. Bheraram PW-17 reached the house of Surtaram on hearing about the incident. Aadu Nath PW-10 is the person whom the incident was related. Jaggu Gir PW-1 and Ramvilas PW-4 are witnesses of recovery of lathies.
14. Accused Badridas and Rameshwar have given the defence version in their statements recorded Under Section 313, Cr.P.C. In short, their version is that the field was in their possession and when they were taking away the crop, they were attacked by the complainant party and Purna Ram during attack hurled a spear blow which landed on the stomach of the deceased and caused his death. Ishwar Singh DW-4 and Foosa Ram DW-5 have been examined by the defence to prove the defence version.
15. First of all, we will take up the appeal filed by the State against the order of acquittal of respondents Mukha Ram, Partu Ram, Viram Das, Chander Das, Khamana Ram and Mohan. The learned Public Prosecutor has submitted that the prosecution evidence fully establishes the involvement of above named accused persons in the commission of alleged offence and that the learned Sessions Judge has committed an error by acquitting the respondents, namely, Mukha Ram, Partu Ram, Viram Das, Chander Das, Khamana Ram and Mohan Ram. He has therefore, prayed that the appeal against the acquittal of respondents Nos. 1 to 6 be allowed and the respondents be convicted for the offences with which they were charged. Learned counsel for the respondents Nos. 1 to 6 has supported the judgment of the learned Sessions Judge and submitted that no sufficient evidence was produced to prove the charges against the respondents Nos. 1 to 6 and therefore, the learned trial Judge did not commit any error by acquitting them of all the charges framed against them.
16. We have carefully considered the evidence and the rival arguments. The learned Sessions Judge carefully considered the difference between two versions, one given in the First Information Report Ex.P/18 and the other version given in the complaint Ex.P/22. He took into consideration the fact that no complaint had been made against the Police Officer, who recorded the First Information Report Ex.P/18 and therefore, the allegation that First Information Report Ex.P/18 was not carefully recorded, cannot be believed to be true. In this case there are two versions of the same incident. One given in the First Information Ex.P/18 and the other given in the complaint Ex.P/22. The First Information Report Ex.P/18 was lodged by Tara Chand PW-14 and it is based on the information given to him by the deceased Surta Das, because Tara Chand PW-14 did not witness the incident himself. According to the version given in the First Information Report Ex.P/18, one Badridas, Rameshwar, Partu and Mohan Ram Jat were going towards the village with two carts carrying the crop “Gwar”, the deceased Surta Das saw them carrying the crop when they were going to his own field and at that time Surta Das asked Badridas and others as to why they were lifting the crop and they should wait for the decision of the case and at that time Badridas cried to the effect that “enemy had come, he should be killed” and on hearing this cry Partu and Mohan both ran away and Rameshwar and Badridas attacked Surta Das. Badridas hurled a lathi blow on him, which was stopped by Surta Das. In exercise to defend himself Surta Das inflicted a lathi blow on the head of Badridas and Rameshwar inflicted an injury on the stomach of Surta Das with the bhala and in concequence of that injury, Surta Das fell on the ground. The First Information Report Ex.P/18 does not implicate the respondents Nos. 1 to 6. It may also be pointed out that when the post-mortem examination of the dead body of Surta Das was conducted, only one injury was found on his stomach and it was caused with sharp weapon. Before his death the injury of Surta Das was examined and Medico Legal Report Ex.P/9 was prepared. This report has been proved by Dr. Jagdish Prasad Kabra PW-6 and his evidence shows that Surta Das had only one injury on the lower portion of epigastrium (stomach). The fact that Surta Das had only one injury on his body and in the First Information Report Ex.P/18, the names of respondents Nos. 1 to 6 have not been mentioned as assailants and the fact that Ex.P/18, which is dying declaration of Surta, there is no mention of the names of respondents Nos. 1 to 6, clearly leads to the conclusion that respondents Nos. 1 to 6 were not present at the scene of occurrence when the Rameshwar inflicted an injury on the stomach of the deceased with the bhala and that the version given in the complaint Ex.P/20 (the complaint filed by Tarachand) is not correct. In any case, the prosecution version against the respondents Nos. 1 to 6 is open to serious doubts and the benefit of doubt must go to them. We, therefore, come to the conclusion that the learned Sessions Judge did not commit any error in acquitting the respondents Nos. 1 to 6 of the offences with which they were charged.
17. For the reasons mentioned above, the appeal filed by the State against the acquittal of Mukha Ram, Partu Ram, Viram Das, ChanderDas, Khumana Ram and Mohan deserves to be dismissed.
18. Since, the appeal filed by the State against above named persons deserves to be dismissed on the ground that prosecution has failed to prove its case against respondents Nos. 1 to 6, the appeal filed by the complainant Tarachand must also be dismissed so far as the accused persons Mukha Ram, Partu Ram, Viram Das, Chander Das, Khumana Ram and Mohan are concerned.
19. We may now take up the appeal filed by the convicts, namely, Badridas and his son Rameshwar. The prosecution has examined 24 witnesses, out of which Shera Ram PW-5, Purandas PW-7, DungarRam PW-12, Tarachand PW-14, Muli PW-15, Kana Ram PW-16, Devendra Singh PW-19 and Sohandas PW-21 are the alleged eye-witnesses of the occurrence. The prosecution has also tried to prove the dying-declaration of Surta Das (deceased) by examining Dr. Jagdish Prasad Kabra PW-6, who examined the injuries of Surta Das when he was taken to the Hospital and recorded his dying-declaration on the reverse side of the Medico Bedded Ticket. Dr. Jagdish Prasad Kabra PW-6 has deposed that he had examined the injuries of Surta Das on 19th November, 1976 on the request of the police and found that there was a stab wound 3 cm. x 1 cm. x 8 cm. on lower right portion of epigastrium. This injury was grievous and was caused by a sharp weapon and pointed weapon. It is also stated by this witness that the condition of the injured was serious, therefore, he recorded the statement of the injured at 9.45 p.m. and the injured expired on 29th November, 1976 at 3.30 a.m. He has proved the Medico Legal Report Ex.P/9, Prescription Slip Ex.P/10 and Bedhead Ticket Ex.P/11. According to Dr. Jagdish Prasad Kabra PW-6 he recorded the dying-declaration of Surta Das on the reverse side of Bedhead Ticket Ex.P/11 and that this dying-declaration was recorded in presence of Smt. Mukus Garowal, Dr. P.R. Sharma and nurses Sushma Rani Chug, Puran Das, Adu Sid, Laboratory Technician Abdul Samad and Rameshwar, Class-IV employee. Dr. Jagdish Prasad Kabra PW-6 has deposed that Ex.P/8 is in his hand writing and that it was signed by the persons, who were present and the deceased had also affixed his thumb impression on it and the endorsement in portion A to B on Ex. P/8 was made by him. In cross-examination, he has stated that the deceased had not named Rameshwar as the assailant.
20. We have carefully considered the statement of Dr. Jagdish Prasad Kabra PW-6. In our opinion, there is nothing to justify the conclusion that Dr. Jagdish Prasad Kabra has given a false statement so faras his evidence about the dying-declaration contained in Ex.P/8 is concerned. In our opinion, the evidence of Dr. Jagdish Prasad Kabra PW-6 proves it beyond reasonable doubt that at 9.45 p.m. deceased Surta Das had given statement before Dr. Jagdish Prasad Kabra that Rameshwar inflicted an injury on his body with the bhala.
21. Shera Ram PW-5 has deposed that on 19th November, 1976 at about 12-12.30 p.m. he was working in his field with Hadman and Doongar and at that time all the eight accused persons were passing through his field. They were carrying two carts and were going towards the field of Surta Ram and they had told him that they were going to the field of Surta Rarn with the object of taking his crop from his field. It is also stated by this witness that Khurnana Ram had armed with a bhala, Mukhram and Mohan were armed with Jaies and the remaining persons were armed with lathis and the accused went to the field of Surta Ram and started placing the crop of gwar in their cart. At that time, Surta and his brother-in-law Tara Chand were in the field of Surta Ram and they were standing at some distance from the place of heap of gwar crop was lying and that Khumana Ram was standing with bhala in his hand and other accused persons placed gwar crop in the cart and after about an hour they reached his field with the carts carrying the gwar and at that time Surta Ram called his mother and further asserted that he was going to the Police Station to lodge the First Information Report and no sooner he uttered these words, the accused persons surrounded Surta Ram and Khumana Ram handed over his bhala to Rameshwar and asked him to fell Surta Ram as he was going to Police Station to lodge the First Information Report. Badri Das hurled a lathi blow on Surta, but Surta stopped the lathi blow by raising his hands and Chander Das and Veeram Das hurled lathi blows with the object of causing injuries on Surta Ram, but meanwhile Badridas came in the way and those lathi blows landed on the Badri Das. Meanwhile, Surta Ram raised his arms to stop further lathi blows and at that time Rameshwar hurled a blow on the deceased with the bhala and bhala landed on his stomach. As a result of bhala injury, Surta Ram fell on the ground. After that the mother of Surta Ram and Sohan Das reached the spot. In our opinion, this witness Shera Ram PW-5 has not given totally true statement. His testimony appears to be false so far as it implicates accused persons other than Rameshwar and Badri Das. The witness was confronted with his police statement Ex.D/4, which does not contain the names of all the eight accused persons.
22. Puran Das PW-7 is another eye-witness of the alleged occurrence. He has stated that on 19th November, 1976 his son told him that Surta had been injured by Rameshwar with the bhala, he then went to the house of Surta Das and asked him as to who had injured him and Surta Das told him the names of all the eight accused persons. It is also stated by Puran Das PW-7 that Tarachand had gone to the Police Station to lodge the First Information Report and that in the Hospital when the doctor asked Surta Das as to how many persons had attacked him, Surta Das told that eight persons had attached him.
23. We have carefully considered the evidence of this witness. His statement does not appear to be totally correct, because it is not supported by the dying-declaration Ex.P/8 as well as the First Information Report Ex.P/18. In our opinion this witness has exaggerated with a view to implicate persons other than Rameshwar and Badri Das. Besides, he is not an eye-witness of the occurrence.
24. Dungar Ram PW-12 has deposed that when he was working in his field, all the eight persons went to the field of Surta Das with the object of bringing his crop. They were carrying carts with them. They placed the Gwar crop in the carts and at about 1-1.30 p.m. they returned from the field and while returning they passed through the field of the witness and at that time Surta Das and Tarachand were following the carts carried bv the accused and when Surta Das reached his field, he called his mother and told her that he was going to the Police Station to lodge the First Information Report and at that time all the eight persons surrounded Surta Das, Khumana Ram was armed with a bhala, Mohan and Mukhram were armed with jailes and other accused persons were armed with lathis and Khumana Ram gave his bhala to Rameshwar and Badri Das hurled a lathi blow on Surta Das and Surta Das stopped that blow by raising his hands and Beeram Das and Chander Das also hurled lathi blows on Surta Das, but meanwhile came in the way and those lathi blows landed on Badri Das and thereafter Rameshwar inflicted abhala blow on the stomach of Surta Das at the instance of Khumana and in consequence of that blow Surta Das fell on the ground. It is also stated by this witness that on seeing the abovementioned incident, he along with his brothers moved towards the place of occurrence and when he was at a distance of 4-5 paces, Smt. Muli, mother of Sohandas and Surta Das also reached there and the accused persons then ran away. This witness also appears to have indulged in exaggeration with a view to falsely implicate the accused persons other than Badridas and Rameshwar. So far as Tara Chand PW-14 is concerned, in view of the First Information Report EX.P/18 lodged by him, his subsequent version implicating all the eight persons appears to be false. In our opinion, the version given in the First Information Report Ex.P/18 is correct and whatever is in excess thereof, is an exaggeration.
25. Muli PW-15 has implicated all the eight accused persons and given a version similar to one given by Tarachand PW-14. In our opinion, she is also guilty of exaggerations.
26. Kana Ram PW-16 is another eye-witness of the occurrence. He has named all the eight accused persons and given story similar to given by Tara Chand PW-14. For the reasons already mentioned above, he appears to have exaggerated the prosecution case by falsely implicating accused persons other than Badri Das and Rameshwar.
27. Devendra Singh PW-19 is an eye-witness of previous incidents. He has not given statement about the incident which occurred on 19th November, 1976 in which Surta Das was fatally injured.
28. Sohan Das PW-21 has deposed that the Gwar crop was lying in the field of Surta Ram. It was lifted by the accused persons in two carts and when the accused persons were carrying the crop in carts, Surta Das was following them and when they reached the field of Shera Ram, Surta Ram called his mother and told her that the accused persons were carrying their crop, therefore, he is going to Police Station to lodge the report and at that time accused surrounded Surta Ram. It is also stated by this witness that he as well as the mother of Surta Ram moved towards Surta Ram in order to save him from the accused and when he was at about few paces from Surta, Khumana, who was having a bhala in his hand gave his bhala to Rameshwar and asked him to kill the enemy and Rameshwar inflicted an injury on Surta Ram with the bhalaon the stomach and in consequence of that injury Surta Ram fell on the ground. It is also slated by him that the accused then ran away.
29. The statement of Sohan Das is similar to the version in the First Information Report Ex.P/ 18 except that in his statement in Court Sohan Das PW-21 has stated that there were eight persons and that the bhala with which Rameshwar injured Surta Ram was initially in the hands of Khumana and Khumana had given the same to Rameshwar and asked him to kill the enemy and then Rameshwar inflicted a bhala injury on Surta Ram.
30. In view of above discussions, Shera Ram PW-5, Puran Das PW-7, Dungar Ram PW-12, Tara Chand PW-14, Muli PW-15, Kana Ram PW-16, Sohan Das PW-21, appear to have indulged in exaggerations in order to implicate all the eight persons. If the exaggeration is separated from that portion of the statement, which is in tune with the First Information Report Ex.P/18, as we think we ought to do, it appears well established by the evidence of above named witnesses that Rameshwar inflicted a bhala injury on the stomach of the deceased when the deceased expressed his desire to go to the Police Station to lodge the First Information Report regarding carrying of crop by Badri Das and Rameshwar from his field. The dying-declaration recorded on Ex.P/18 and the medical evidence of the injuries of Surla Das (Surta Ram) fully proves that Badri Das and Rameshwar both were present at the spot when the alleged incident took place and that both of them attacked the deceased when the deceased expressed his desire to go to the Police Station to lodge the First Information Report and that first blow was hurled by Badri Das with the lathi and the second blow was hurled by Rameshwar with the bhala and it was the second blow, which resulted in causing the injury on the stomach of the deceased and that injury proved fatal. Accused Badri Das has stated in his examination Under Section 313, Cr.P.C. that when he was bringing Gwar crop from his field, Surta Das and Bherdas followed him and they surrounded him and his son Rameshwar and Surta Das inflicted a lathi blow on the hand of Rameshwar, Badri Das added that Surta Das inflicted a lathi blow on his head and Bherdas inflicted a lathi blow on his right hand and Puran Das wanted to inflict a bhala injury on him, but he hid himself below the cart and that bhala blow landed on the stomach of Surta Das and caused the injury. Rameshwar has given a similar statement in his examination Under Section. 313, Cr.P.C. Thus, both the accused Badri Das and Rameshwar have admitted their presence at the scene of occurrence that Surta Das received a fatal injury on his stomach. It has also been admitted by these two persons that they were carrying Gwar crop from the field. In our view, the prosecution evidence regarding the presence of accused Badri Das and Rameshwar at the time of alleged incident is not open to doubt. The version given by the accused persons in their statements that a bhala injury found on the body of deceased had been caused by Puran Das, has not been proved by any evidence.
31. The defence witnesses Ishwar Singh PW-4 and Foosa Ram PW-5 are alleged to be the eyewitness of the incident. Both of them have stated that on the date of occurrence Badri Das and Rameshwar were carrying Gwar crop in two camel carts and at that time Surta Das, Puran Das, Bher Nath and one other person went near the accused persons. They surrounded the accused and Surta Das inflicted a lathi blow on left hand of Rameshwar and another lathi blow on the head of Badri Das and Bherdas inflicted a lathi blow on Badri Das and Purandas hurled a bhala blow towards Badri Das, but Badri Das saved himself by hidding under the cart and that bhala landed on the stomach of Surta Das. In his cross-examination, the witness has admitted that he did not relate this incident to any person in the village, nor reported the matter to police of any Officer of the Court.
32. Foosa Ram DW-5 has given the same versions as given by Ishwar Singh DW-4. He has also admitted that he did not relate the incident to anyone in the village nor reported the matter to the Police Officer or any Officer of the Court.
33. In view of the aforesaid admission of these two defence witnesses, the evidence given by the two defence witnesses cannot be relied upon to any extent. Whenever any offence is committed in a rural area, all the grown-up persons of the village become concerned with the crime and in a case of this crime, those who witnessed the incident with their own eyes are expected to inform the police during investigation about the truth of the matter. Those, who failed to do so, display conduct, which is contrary to law and the norms of the society and therefore, makes their testimony suspect. We, therefore, do not think it fit to place reliance on the statement given by Ishwar Singh DW-4 and Foosa Ram DW-5. II the evidence of Ishwar Singh DW-4 and Foosa Ram DW-5 is discarded as totally untrue, there remain nothing to support the defence version given by the accused Badri Das and Rameshwar in their statements Under Section 313, Cr.P.C. We, therefore, come to the conclusion that the defence version is neither probable nor proved. In view of above reasons, we agree with the learned Sessions J udge that the fatal injury found on the body of Surta Das is proved to have been caused by accused Rameshwar and that it is also proved that this injury was caused when the deceased expressed his desire to go to the Police Station to lodge a report against the act of carrying the crop from the field which he claimed to be in his possession. The object of causing injury to the deceased was of preventing him from going to the Police Station.
34. The next important question to be decided in this appeal is what offence has been committed by the accused persons. At the time of incident Badri Das was armed with a lathi and Rameshwar was armed with a bhala. According to prosecution case, Badri Das hurled a lathi blow on the deceased, but he stopped the same on his palms by raising his hands and thereafter, the deceased hurled a lathi blow on the accused to save himself. After that Rameshwar is proved to have inflicted a bhala injury on the stomach of the deceased. The incident, it appears, occurred all of sudden and there was no previous design to cause injuries to the deceased. In these circumstances, it is difficult to hold that Badri Das and Rameshwar, both shared the common intention to cause death of the deceased. All that may be inferred in these circumstances of this case is that when the deceased expressed his desire to go to the Police Station, the accused wanted to stop him and therefore, Badri Das hurled a lathi blow on him, but the same was stopped by the deceased by raising his hands and then deceased also retaliated. The bhala injury caused by Rameshwar cannot be said to have been in contemplation of Badri Das. In our opinion, Badri Das cannot be held responsible for the injury caused by Rameshwar to the deceased. However, Badri Das is liable to be convicted and sentenced Under Section. 323, I.P.C., because he inflicted a lathi injury on the deceased. Badri Das deserves to be acquitted of the charge Under Section 302 read with 34,I.P.C.
35. So far as the act of Rameshwar is concerned, he was armed with a spear. He inflicted one single injury on the stomach of the deceased. The prosecution has failed to prove that Rameshwar had the intention to cause the death of the deceased. Dr. Jagdish Prasad Kabra PW-6 has given statement to the effect that the injury of the deceased was sufficient in the ordinary course of nature to cause death. But, in his cross-examination he has admitted that ordinarily such injuries are regarded as dangerous to life and grievous in nature, but if a proper treatment is given in time, the life may be saved.
36. We have considered the evidence of Dr. Jagdish Prasad Kabra PW-6 and the Post-Mortem Examination Report Ex.P/7. The depth of the wound was 8 cm. and on opening the abdomen, the wound was found to be continuous through the stomach and liver and the direction of the wound was from below upwards and from left to right and total depth was about 15 cm. The length of the wound, the part of the body on which the injury was caused and the fact that it had penetrated the stomach and the liver, clearly show that the wound had been caused with much force and in the facts and circumstances of the case, it must be held that this injury was intentionally caused by Rameshwar and that the injury was sufficient in the ordinary course of nature to cause death. The law laid down by the Hon’ble Supreme Court in Virsa Singh v. State of Punjab AIR 1958 SC 465 :(1958 Cri LJ 818), therefore, applies to the facts and circumstances of this case. In our opinion conviction of the accused Rameshwar Under Section 302, I.P.C. was fully justified and therefore, the conviction and sentence passed by the learned Sessions Judge on Rameshwar need no interference by us.
37. For the reasons mentioned above, D.B. Criminal Appeal No. 378/79 “State v. Mukha Ram” and D.B. Criminal Appeal No. 377/79 “Tarachand v. Mukharam” deserve to be dismissed and hereby dismissed. Respondents Nos. 1 to 6 are on bail. Their bail bonds are hereby cancelled. They need not surrender.
38. D.B. Criminal Appeal No. 281/78 “Badri Das v. State” is partly allowed. Conviction as well as sentence imposed on Badri Das under Section 302 read with Section 34, I.P.C. is hereby set aside and quashed. Accused appellant Badri Das is therefore, acquitted of the charge Under Section 302 read with Section 34, I.P.C., but he is found guilty of the offence Under Section 323, Cr.P.C. and is convicted thereunder. In view of the period for which he remained in custody during investigation in trial, we deem it fit to sentence him to the sentence already undergone by him. He is on bail. He need not surrender. His bail bonds are hereby cancelled.
39. The appeal filed by Rameshwar against his conviction and sentence Under Section 302, I.P.C. deserves to be dismissed and is hereby dismissed. Accused Rameshwar is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the learned Sessions Judge, Churu within 15 days, failing which a non-bailable warrant of arrest shall beassued to compel his appearance and after his appearance or arrest, as the case may be, commit him to jail so that he may serve out the sentence awarded to him.
