JUDGMENT
V.G. Palshikar, J.
1. This appeal is directed against the judgment dated 14.5.87 passed by the learned Sessions Judge, Churu, in Sessions Case No. 3/85, convicting the appellants under Section 302/34 of the Indian Penal Code and sentencing them to imprisonment for life and a fine of Rs. 250/- In default, two months rigorous imprisonment.
2. The facts giving rise to this appeal are as under: at about 11.30 A.M. on 21st October, 84 a First Information Report was lodged by one Beeru Ram (PW/3) that on 20th October 84, at about 7.00 in the evening, Ramji Lal, his sons Bhanwra and Raju returned home from the field. At that time accused Daula Ram and his wife Bado were standing in the front Yard ‘guwarh’ with sticks in their hand. As soon as Ramji Lal and Bhanwra entered, they started beating them. Raju younger son of Ramji Lal ran inside the house. Ramji Lal was then felled to the ground and was beaten up. Then shanker, S/O Daula came and gave a stick blow on the head of Bhanwra. All the three accused gave stick blows on the head of Ramji Lal and Bhanwra, as a result of which both of them fell unconscious in the fore-ground. Seeing this incident of assault, Chando, W/O Ramji Lal and Raju S/O Ramji Lal shouted, hearing which Mukhram, PW/13 and Ganpat Gir PW/6 came there. Then also the three accused persons were beating Ramji Lal and Bhanwra with sticks. When one of them tried to separate them he was also injured. Then several people came from the village and the accused went home. Ramji Lal and Bhanwra were bleeding. They were carried into the house where Bhanwra died at 11.00 in the night and Ramji Lal was unconscious till the lodging of the report. After the Report was lodged, investigation started, accused persons were arrested and they were charge-sheeted for the offence of Sections 302/34 and 307/34 of the Penal Code. Thereafter Ramji Lal died and the accused persons were charged under Section 302/34 and tried.
3. The prosecution examined 15 witnesses to support its case and the accused examined one witness. The learned Judge, on appreciation of the evidence, came to the conclusion of guilt of the accused and, accordingly, convicted them as aforesaid. It is this order which is challenged in this appeal.
4. The learned Judge has, however, found the appellants not guilty of the offence of causing murder of Bhanwra, as there is no concrete evidence to come to the conclusion that any of them had given any blow to deceased Bhanwra. This finding of the learned Judge is not challenged by the prosecution. We see no reason to take any different view of the matter and we, therefore, affirm that finding.
5. With the assistance of the learned Counsel for the appellants and the learned Public Prosecutor, we have carefully scrutinised and reappreciael the evidence on record. The fact that the accused persons assaulted the deceased cannot be disputed. In fact, DW/1 Nand Ram, examined on behalf of the accused states that the accused persons were assaulted by the deceased persons and there was a quarrel between them. This evidence of the defence is corroborated by the testimony of the doctor who examined the accused persons when he states that the injuries caused to the accused persons were simple in nature and the age of the injury was same as the age of injuries on the person of the deceased. There is, therefore, no escape from the conclusion that both the accused persons did indulge in assault, that there was a fight to prove on record.
6. Taking into consideration the entire evidence and depositions, the learned Counsel appealing on behalf of the appellants submitted that assuming the accused persons to be assailants, conviction under Section 302 of the Indian Penal Code for death of Ramji Lal is not possible. According to the learned Counsel, the four injuries caused to Ramji Lal were individually simple, though the doctor has deposed that the injuries cumulatively were sufficient in the ordinary course of nature to cause death.
7. Factually, in this case, Ramji Lal had died three days after the incident. It was then argued by the learned Counsel that inspite of the fact that the incident took place in the evening and both the deceased persons were seriously injured, no attempt appears to have been made to give medical aid to either of them. They were simply removed to their house and kept on cots. According to the learned Counsel, even on this point, in evidence there is material contradictions.
8. PW/3 Beeru Ram states that after the injured were removed into the house, Ramji Lal was put on a cot and Bhanwra was put on the floor, as he was already dead, whereas PW/ Chando, who is wife of Ramji Lal and mother of Bhanwra states that both of them were kept on the cots. She then states
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9. Thus, according to PW/3 Beeru Ram, Bhanwra was dead immediately after the incident in the evening, whereas according to PW/4 Chando, he died at 11.00 in the night. It was then submitted by the learned Counsel that there was no intention on the part of the accused to kill the deceased Ramji Lal. There is no evidence of any intention to kill on the part of these two accused, in so far as Ramji Lal’s death is concerned. No doubt, submits the learned Counsel, that there was a quarrel, as a result of which Ramji Lal had died and, therefore, at the most the offence is one covered by Section 303 of the Indian Penal Code.
10. The learned Counsel then submits that there is no reliable evidence on record to warrant conviction of Smt. Bado, W/O Daula Ram. The evidence is not consistent and she is, therefore, entitled to be given atleast benefit of doubt.
11. PW/3 Beeru Ram has stated-
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He does not attribute any overt act to Smt. Bado in relation to Ramji Lal.
12. PW/4 Chando states that Shanker and his mother assaulted Bhanwra and Daula assaulted Ramji Lal. She states that Smt. Bado pushed her, as a result of which she fell. She also does not attribute any overt act to Smt. Bado. She states that Daula Ram had ‘Musal’ in his hand and Bado had a ‘lathi’ in her hand, whereas PW/3 Beeru Ram states that ‘Musal’ was in the hand of Bado and ‘lathi’ was in the hand of Daula Ram. These contradictions are material in so far as involvement of Bado is concerned.
13. The role of Bado in the entire episode, thus, appears to be of a silent spectator. Her presence during the quarrel is not disputed. No injury is proved to have been caused by her. On entire appreciation of evidence, we are of the opinion that the assault on the deceased Ramji Lal was not intended to cause his death and the injuries caused by them being sufficient in the ordinary course of nature, the accused Daula Ram is guilty of offence under Section 304 parti of the Penal Code. Accused Smt. Bado is entitled to the benefit of doubt and is liable to be acquitted of all the offences. We are informed that shekhar has been convicted for the offence of causing death of Bhanwra in a separate trial.
14. That brings us to the question of sentence that should be imposed on Daula Ram. He has already undergone more than ten years of sentence. Under Section 304 I.P.C. the punishment proposed is imprisonment for life or imprisonment of more than ten years. The accused has three children. The eldest son in now of 20 years age, he has two daughters. His son Shekhar has been convicted of murder for Imprisonment for life. In such circumstances, interest of justice will be served properly and adequately if Daula Ram is sentenced to imprisonment of ten years. He has actually undergone more than ten years of imprisonment.
15. In the result, therefore, the appeal is party allowed. The judgment and conviction of Smt. Bado, dated 14.5.87 passed by the Sessions Judge , Churu, is set aside. She is acquitted of all the offences. The conviction of Daula Ram under Section 302 I.P.C. is set aside, instead he is convicted to an offence under Section 304 part-I, I.P.C. and is sentenced to undergo rigorous imprisonment for a period of ten Years. Since he has already undergone more than ten years’ imprisonment, he is liable to be released. Accused Daula Ram is in jail, he be released forthwith, if not required for any other offence.