JUDGMENT
Mohammad Rafiq, J.
1. The present criminal appeal has been preferred by three accused appellants against the judgment dated 9th October 2002 passed by Additional Sessions Judge (Fast Track) Sikar in Sessions Case No. 8/2001 thereby convicting accused Bihari Lal for offence under Section 302 IPC and accused Jaisa Ram and Sagarmal for offence under Section 302/34 IPC and sentencing each of them to undergo life imprisonment with a fine of Rs. 1,000/-, in default thereof to further undergo simple imprisonment of two months. Accused Bihari Lal and all the accused were also convicted for offence under Section 447 IPC and were sentenced to undergo rigorous imprisonment for three months with a. fine of Rs. 100/-, in default thereof, were required to further undergo simple imprisonment of seven days. Additionally, accused Sagarmal was convicted under Section 325 IPC whereas accused Jaisa Ram and Bihari Lal were convicted for offence under Section 325/34 IPC and for this all of them were sentenced to undergo rigorous imprisonment to one year with fine of Rs. 200/- in default thereof, were required to further undergo simple imprisonment of 15 day.
2. A written report was submitted by one Thakru Ram S/o Pura Ram by Caste Jat resident of Charno Ki Dhani, village-Sutot Police Station Nechhwa, District Sikar. In the report it was alleged that the complainant were six brothers. While the complainant and his brother were residing in the “Dhani”, the wife of his younger brother was residing at the well situated in their agricultural field. When the complainant was harvesting the crop of ‘Mothh and Choula’, in the morning on 23rd October 2000, Tara Chand along with two other boys, whose names were not present, came there on a camel cart and tried to pass through their agricultural field. The complainant asked them not to do so as it was not a public way. Suddenly at that time Bihari, Sagarmal, Jaisa Ram, Chunnilal and Soni all armed with Lathi, Gandasi and Kulhari etc. came there. Accused Sagarmal inflicted a lathi blow on complainant Thakru Ram when he tried to save himself using his hands, accused Jaisa Ram caught his hands. On hearing hue and cry Ganesh Ram, the younger brother of the complainant, who was cultivating his adjoining field, came rushing there to save him. Accused Bihari inflicted a ‘Jeli’ blow on the head of Ganesh Ram presently he became unconscious and fell down. Tara Chand inflicted a lathi blow which the complainant received on his hand. The complainant also became unconscious and fell down on the ground. It was further stated that after complainant and his brother Ganesh Ram fell down on the ground having become unconscious which of the accused inflicted what injuries could not be known to both of them. After some time when the complainant regained consciousness, Chhunni Lai, Sukhdeva, and his brother Ganesh Ram were standing by his side. Ganesh Ram however regained consciousness and upon checking, it transpired that he had stopped breathing and had expired. The accused persons had come to the agricultural field of the complainant and attacked them. There was a dispute between the two parties about the right of way. The complainant has requested to the SHO that the action be taken against the accused for the murder of his brother.
3. On the basis of the aforementioned written report, the First Information Report was registered against the accused and the investigation was commenced. Upon completion of investigation, charge sheet against the accused was filed. The first charge sheet against the accused Bihari Lal and Tara Chand was filed in the Court of Judicial Magistrate, 1st Class, Lakshmangarh who committed the same to the Sessions Court, Sikar on 17.7.2001 for trial. Second charge sheet was filed against the accused Jaisa Ram on 7.2.2001 which also came to be made over to the Court of Sessions for trial. Third charge sheet against the accused Sagarmal was filed on 3.4.2001 which was also sent for trial to the Court of Sessions. The learned Sessions Judge, Sikar vide his order dated 25.1.2001 ordered for combining the trial of the first and second charge sheet and thereafter further passed an order on 20.3.2002 for consolidation of third charge sheet with the earlier two and heard all of them together. But by the same order, he directed that the proceedings against the accused Tara Chand would be dropped and further directed the police that offence under Sections 302, 325 and 323 IPC would be dropped from is Court and further directed the police to file charge sheet against him in the Juvenile Court in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act.
4. That while charges for the offences under Sections 447, 452/34, 323/34 and 325/34 IPC were framed against all the accused, an independent charge under Section 302 IPC was framed against the accused Bihari Lal and charge under Section 302/34 IPC was framed against the accused Jaisa Ram and Sagarmal. During the course of trial, the prosecution examined 17 witnesses and exhibited as many as 28 documents. On the other hand, the defence examined 10 witnesses in support of its case. The learned trial Court on the conclusion of the trial convicted and sentenced and aforesaid three accused as indicated above. Feeling aggrieved by the judgment of the learned trial Court the accused appellants preferred this appeal.
5. We have heard the arguments advanced by Shri Anoop Dhand learned Counsel for the accused appellants and Shri R.P. Kuldeep and Shri A.K. Sharma the learned Public Prosecutor for the State and perused the record.
6. Shri Anoop Dhand learned Counsel for the accused appellants has argued that there is total lack of cogent and reliable evidence on record to connect the appellants with the alleged crime and that the learned trial Court has based its findings merely on surmises and conjectures. The FIR lacks in the basic details in as much as time of the incident has not been mentioned therein. Four different charge sheets have been filed which also cast serious doubt about veracity of the prosecution story. While the police had visited the place of the incident on 23.10.2000 and had taken dead body of the deceased, yet the statements of the alleged eye-witnesses were recorded by it on 25.10.2000 which create doubt about presence of the witnesses on the site of incident. No explanation has been given for this delay in recording of the statements. The learned trial Court has erred in convicting the accused appellants merely on the basis’ of testimony of three eye witnesses namely Thakru Ram., Chhoti Devi and Kanwari Devi who are all relatives of the deceased. No independent eye-witnesses of the neighbouring fields have been produced by the prosecution. Even though Chimna Ram, Gopal Lal, Mal Singh, Mohanlal, Sukha Ram and Pokar Mai were named as eyewitnesses yet they have not been produced before the trial Court and an adverse inference should be drawn against the prosecution for withholding all these witnesses.
7. Shri Anoop Dhand argued that Ganpat Ram and Narayan Singh were the motbir witnesses to the site plan who could be the best witnesses to depose the truth about the place of incident yet they have not been placed before the trial Court. Their non-production creates a serious doubt about the correctness of prosecution version. He argued that the alleged eye-witnesses have substantially improved upon their original version inasmuch as in their first statement recorded under Section 161 Cr.P.C. they have hot named the accused appellants Sagarmal and Jaisa Ram. They have however, in the second statement (Titmba Bayan) implicated these two accused also. It has been argued that no external injury was shown oh the person of deceased while preparing Panchnama, although the post mortem report has indicated one bruise on his body. Alternatively Shri Anoop Dhand also argued that even as per the prosecution the quarrel of the accused started with the complainant Thakru Ram and deceased Ganesh Ram came there subsequently to intervene and in the process received fatal injury. The accused had no intention or motive of causing his death. No such intention therefore, can be attributed to the accused appellant. This is further established from the statement of PW. 5 Chhoti Devi wherein she has stated the Jeli was used by the Accused from the reverse side. He has further argued that while PW. 6 Sukhdeva Ram has claimed himself to be an eye witness but in his own statement he stated that he along with Chhunni Lal and wife of Ganesh Ram arrived at the place of incident after occurrence. None of them were eye witnesses of the alleged incident.
8. Shri Anoop Dhand learned Counsel for the appellant has lastly argued that the conduct of all eye witnesses examined in the present case was quite unnatural as they have not given any explanation as to why they did not disclose the correct version to the police at the first available time and why they kept mum for two days.
9. On the other hand, Shri A.K. Sharma and Shri R.P. Kuldeep learned Public Prosecutors on behalf of the State argued that here was overhelming evidence on record to prove the charges against the accused appellants beyond reasonable doubt. It has been argued that the accused appellants were aggressors and they attacked the deceased and his brother while they were working in a agricultural field. It has been argued that the accused appellants attacked deceased Ganesh Ram with a common intention of causing his death and in furtherance thereof accused Bihari Lal caused fatal injury to deceased Ganesh Ram and all of them caused other injuries to injured Thakru Ram.
10. PW. 7 Thakru Ram, PW. 5 Chhoti Devi, PW. 8 Kanwari, PW. 6 Sukhdeva Ram and PW. 12 Chhunni Lal have in their statements clearly proved the charges against the accused-appellants and remained unshaken in their cross examination. It has been argued that the weapon of offence ‘Jeli’ was recovered from the accused Bihari Lal which has been proved by the PW. 1 Alam Ali. The site plan of the incident and the Panchnama of dead body was proved by PW. 2 Jagdish. PW. 3 Dr. S.S. Sharma, who conducted autopsy of the deceased Ganesh Ram as also proved the injuries sustained by the deceased on right Paritel Temporor Region on his headin the size of 3 × 2 CM with a bruise and has further stated that it was on opening of the skull which was antemortem in nature and was seen in the original course of nature to cause death of the deceased. He has proved the Post Mortem Report Ex. P. 7. PW.14 Dr. Dharshan Bhargava has proved that injury report of the accused Thakru Ram exhibit P. 24 wherein he was shown to have sustained three injuries.
11. It has been argued that totality of the evidence therefore clearly proved that all the accused shared a common intention in furtherance of which they attacked with common intention of causing death of the deceased Ganesh Ram and injuries to Thakru Ram and in furtherance of that common intention they attacked the complainant while working in their agricultural field and therefore each of them shall be liable for such act of their as if, it was done by him alone. The learned Trial Court has therefore, rightly convicted and sentenced the accused appellants for various offences and sentenced as indicated in the judgment.
12. We have given our thoughtful consideration to the arguments advanced by both the learned Counsel and have perused the record. PW. 7 Thakru Ram, who is informant in the present case, has stated that when he and his wife were working on the agricultural field, accused Tara Chand came there on a camel cart and wanted to pass through their agricultural field by opening the temporary gate (Jhala). He has further stated that he asked Tara Chand not to pass through their field and that resulted into heated exchange of words between the two. At that time Jaisa Ram, Bihari Lal, Sagarmal, Chhunni Lal and Sohani also came their. Accused Jaisa Ram caught hold of Thakru and accused Sagarmal inflicted a lathi blow on him which he sustained on his right hand resulting into its fracture. Accused Tara Chand inflicted another injury on his shoulder. On hearing his hue and cry, Ganesh Ram who was working in the adjoining field also came rushing their to save him. It was at that stage that accused Bihari Lal inflicted blow of ‘Jeli’ on left side of the head of the deceased Ganesh Ram who fell down on the ground and became unconscious. Informant Thakru Ram also fell down on the ground and became unconscious. When Thakru Ram regained consciousness, he found that Ganesh Ram had expired and the accused had run away from there.
13. PW-8 Kanwari, who is wife of Ganesh Ram has also given similar statement. She has stated that she and her husband deceased Ganesh Ram, on hearing hue and cry of Thakru Ram and his wife Chhoti went to save them. Accused Jaisa Ram had caught hold of Thakru but accused Sagarmal and Bihari Lal were causing injuries on his person by lathies. Bihari Lal suddenly caused blow of ‘Jeli’ on the head of the deceased Ganesh Ram who fell down on the ground and instantly died.
14. PW. 5 Chhoti Devi who is the wife of informant Thakru Ram has also stated that they were harvesting the crop on the fateful day when Tara Chand came there on camel cart and wanted to pass through the field by reviewing the temporary gate (jhala) when her husband Thakru Ram asked not to do so, Tara Chand got infuriated and suddenly other accused Jaisa Ram, Bihari Lal and Sagarmal followed by Sohni and Chhunna reached there. AH were armed. While Sagarmal was having lathi, Bihari lal had Jeli, Chhunna Ram had Kulhari and Sohni had Gandasi in their hands. Jaisa Ram caught hold of her husband-Thakru Ramand Sagarmal inflicted a lathi blow and her husband which he received this on his hand resulting into its fracture. On our raising hue and cry, Ganesh and Kanwari came there from adjoining field. Bihari Lal inflicted blow of ‘Jeli’ on the head of Ganesh Ram which instantly caused his death and he fell down on the ground. Accused Sagarmal and Tarachand also inflicted lathi blows on the person of her husband Thakru Ram when she tried to save him from the accused, she also received injuries.
15. PW. 6 Sukhdeva Ram also has given some similar version about the incident. He has stated that while he was working in the field of Chhunni Lal, he and Chhunni Lal heard hue and cry and went rushing to the field of Thakru. They saw that the accused Jaisa Ram, Bihari Lai, Sagarmal and Tara Chand were beating Thakru Ram. At that time Ganesh Ram came there. Bihari Lal inflicted a blow of Jeli on the left side of the head of Ganesh Ram, who fell down on the ground. Later on they knew that he had expired.
16. PW. 12 Chhunni Lal, in his statement has also corroborated version of Sukhdeva Ram PW. 6. He has stated that on hearing hue and cry, they went rushing to the field of Thakru Ram and saw that accused Jaisa Ram, Bihari Lal, Sagarmal and Tara Chand were beating Thakru Ram where his wife Chhoti Devi was also present. When they came there, they saw Ganesh Ram came rushing there and arriving at the place of incident, Bihari Lal inflicted injuries on the head of Ganesh Ram and he fell down on the ground and at the same time Kanwari Devi wife of Ganesh Ram also reached there. He has further stated that the incident had taken place on account of the dispute between the parties on the right of way.
17. PW. 3 Dr. S.S. Sharma, who conducted the autopsy of the deceased Ganesh Ram has proved the post mortem report Ex. P. 7. He has stated that the deceased received one bruise in the size of 3 × 2 cm on the left side of the parietal temporal region of skull and this injury was ante-mortem in nature. On further dissection of this, it transpired that there was Sub dural Haematoma and slight swelling on the brain beneath the place of injury. According to his opinion, the cause of death was coma and neurogenic shock due to head injury and the sole injury sustained by the deceased in his view was sufficient in the original course of nature to cause his death.
18. PW. 14 Dr. Darshan Bhargava in his statement has proved the injuries sustained by informant Thakru Ram. In his opinion, the injury No. 1 sustained on his right hand by blunt object was a fracture as per X-ray report as Ex. P. 25 was a grievous injury.
19. On making analysis of the entire evidence including those of the material witnesses, gist of which we have discussed above. We find that the incident took place between the parties on dispute of right to way. While the accused persons were claiming that they have a right to pass through the agricultural field of the informant as there was a way between the two field, the complainant party resisted this claim. The eye-witnesses have, in their statement, stated that when Tara Chand came there on camel cart, he opened the temporary gate (jhala) and wanted to take his camel cart through the agricultural field of Thakru Ram. The complainant Thakru Ram asked him not do so and it was on this dispute that the entire heated exchange of words took place between the parties. Soon the other accused also arrived there and the quarrel started. In the circumstances of the although there is no sufficient evidence available on record to show whether the accused had any right to way to pass through the field of the complainant party but the evidence on record also does not prove that while trying to use the way between the two fields on the basis of alleged of right to way, the accused appellant had any intention to commit any offence of criminal trace pass on the agricultural field of the complainant.
20. So far as the conviction of the accused appellant-Sagarmal under Section 325 IPC is concerned, we find that there is sufficient evidence of eye witnesses to prove that it was Sagarmal who alone was responsible for inflicting a lathi blow, which injured Thakru Ram sustained on his right hand resulting into its fracture. PW. 14 Dr. Darshan Bhargava has also proved in his statement that the injury sustained by the injured Thakru Ram on his right hand was caused by a blunt object and as per X-ray report Ex. P. 25 it was a fracture and injury was grievous in nature. The accused Sagarmal has therefore, rightly been convicted for offence under Section 325 IPC and this charge thus has clearly been proved against the accused and therefore he has rightly been convicted under Section 323 IPC. However, in so far as the conviction of accused Jaisa Ram and accused Bihari Lai under Section 325/34 IPC is concerned no sufficient evidence is available on record that they shared a common intention with accused Sagarmal of causing fracture of his right hand. In fact in the first version as disclosed in the FIR the injured has stated that when Sagarmal inflicted lathi blow on him, Jaisa Ram caught hold his both hands. As against this, the informant PW. 7 has improved upon his original version by stating that Jaisa Ram caught hold of him and Sagarmal inflicted a lathi blow on his head which he received by raising his hands, resultantly his hand got fractured.
21. PW-5 Chhoti Devi wife of injured Thakru Ram in her statement also stated that Jaisa Ram caught both the hands of her husband. She has stated that when Sagarmal wanted to cause a lathi blow on the head of her husband, he saved this by using the hands and in the process one of his hands got fractured.
22. PW-6 Sukhdeva Ram in his statement has given another version and has stated that while Jaisa Ram had caught hold of Thakru, Sagarmal inflicted a lathi blow on his head but later on improved his version by immediately stating that he received injury on his hand. In the face of all these statement, although it is clear that the injury sustained by Thakru Ram on his right hand was result of the lathi blow inflicted by accused Sagarmal but at the same time it is clear that Sagarmal wanted to inflict lathi on his head and not on hand and that was received while he tried to save his head. It cannot therefore be said that the accused Jaisa Ram, Bihari Lal shared a common intention of causing injury on his hand of the injured Thakru Ram in as much as the contradictions between the statement of various witnesses specially the first version made by injured Thakru Ram in the First Information Report and in the subsequently improved statement made by him before the Court makes the story doubtful as to how he received injuries on his hand thus entitling the two accused namely Jaisa Ram and Bihari Lal benefit of doubt in so far as their conviction under Section 302/34 is concerned.
23. This takes us to the conviction of accused Bihari Lal under Section 302 IPC and accused Jaisa Ram, Sagarmal under Section 302/34 recorded by the learned trial Court. A critical examination of evidence available on record clearly reveals that the incident had taken place on the right to way when the accused party wanted to pass through the agricultural field of the complainant by using a part of it as way which was resisted by the complainant. The incident had taken place at the spur of moment. When the dispute arose, heated exchange of words initially took place between the accused Tara Chand and injured Thakru Ram and all other accused joined later. The accused initially started beating injured PW.7 Thakru Ram. It was upon hearing hue and cry made by Thakru Ram and his wife Chhoti Devi that the deceased Ganesh Ram who was working on the adjoining field came rushing there to save his brother. When he arrived there, quarrel between the accused and the injured Thakru Ram had already started. It was only when he tried to intervene, accused Bihari Lal inflicted a single ‘Jeli’ blow from its reverse side on his head which causing injury on the left side of parietal temporal region of Skull and it was this single injury which proved fatal injury to his life.
24. In view of the evidence which has come on record it has thus became clear that the quarrel originally started between the accused Tara Chand and injured Thakru Ram and deceased Ganesh Ram arrived there at a later stage with a view to saving his brother. It was in this process that the accused appellant Bihari Lal struck a single blow of ‘Jeli’ on the head of the deceased and did not repeat further blows for which he had ample opportunity. Had there been any intention on his part to cause his death, he would have certainly caused much more number of blows. More over the incident undisputedly took place suddenly at the spur of moment on a small dispute of right of way. In view of the genesis and nature of quarrel and short time gap within which the entire incident occurred pursuant to heated exchange of words between accused Tarachand and injured Thakru Ram and nature of weapon which were mostly apparatus used for agriculture purposes (Jeli, Gandasi, Kulhari etc.), it cannot be said that two accused Jaisa Ram Sagarmal shared any common intention with the accused Bihari Lal of causing death of deceased Ganesh Ram. In the circumstances therefore, it cannot be held that the criminal act done by accused Bihari Lal in causing single blow of Jeli on the head of deceased Ganesh Ram was in furtherance any common intention of all the accused making each of them liable for that act in the same manner as if it were done by him alone. At the same time, however, it also cannot be held that the accused Bihari Lal intended to cause death of deceased Ganesh Ram or had the knowledge, that the injury he inflicted on the deceased was such that it must in all probability cause his death or such bodily injury, which would be sufficient in ordinary course of nature to cause his death though in fact it has actually resulted in causing his death.
25. We are fortified in our view by the law propounded by the Apex Court in (1) Kunhayippu v. State of Kerala and in (2) Camilo Vaz v. State of Goa . In the first case the accused deceased were in friendly mood when one asked for a glass of juice for the other. Shortly thereafter while the deceased had left the shop of PS 1, the accused went behind and gave the blow in question on the abdomen and further, the blow in question had been given from the back side and only a single blow had been given. In these circumstances, their Lordships were of the view that it is difficult for us to hold that the accused can be said to have the necessary intention of causing the murder of deceased while giving the blow in question, though ultimately the blow had become fatal. In the later case, the accused hit a danda on the head of deceased with such force that deceased fell down and later succumbed to his injury. The Apex Court found that there was no evidence to show that the appellant was bent upon killing the deceased. In these circumstances, their Lordships held that the act of the appellant in hitting the deceased was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. Again in (3) Bhera v. State of Rajasthan , the accused while quarreling suddenly brought out a knife in anger and struck a knife blow on the chest of the deceased, which resulted in death of the deceased. Their Lordships in these circumstances, held that it cannot be said that the accused gave knife below with the requisite intention of causing murder of deceased and accordingly the accused was convicted under Section 304 Part II IPC.
26. In view of the discussion made above, we dispose of the instant appeal in the following terms:
(i) We allow the appeal of appellant Jaisa Ram and set aside his conviction and sentence under Sections 447, 325/34 and 302/34 IPC and acquit him of the said charges. Appellant Jaisa Ram is on bail, he need not surrender and his bail bonds stand discharged.
(ii) we partly allow the appeal of appellant Sagarmal and set aside his conviction and sentence under Sections 447 and 302/34 IPC and acquit him of the said charges. We however confirm his conviction under Section 325 IPC. Looking to the fact that the appellant Sagarmal has already undergone the confinement for a period more than seven months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Sagarmal, who is on bail need not surrender and his bail bonds stand discharged.
(iii) We partly allow the appeal of appellant Bihari Lal and instead of Section 302 we convict him under Section 304 Part II IPC. Looking to the fact that the appellant Bihari Lal has already undergone the confinement for a period of more than 5 years and six months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however, acquit him of the charges under Sections 447 and 325/34 IPC. The appellant Bihari, who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.
(iv) The impugned judgment of learned trial Judge stands modified as indicated above.