V.S. Dave, J.
1. These two appeals are disposed of by this common Judgment as they arise out of the same order passed by the learned Sessions Judge, Sirohi dated 25.11.85.
2. These appeals have been directed against the Judgment of learned Sessions Judge, I Sirohi dated 25.11.85 in Sessions Case No. 33 of 1984 whereby he convicted accused Jeewa for offences Under Sections 302, 325, 148, 323 and 341 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 500/-, in default of payment of fine to further undergo one year’s rigorous imprisonment on the first count, one year’s rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine three months’ rigorous imprisonment on the second count, one year’s rigorous imprisonment on the third count, three months’ rigorous imprisonment on the fourth count and fifteen days’ simple imprisonment on the fifth count. Substantive sentences were ordered to run concurrently.
3. Accused Natha, Achla, Hatha, Rama, Manra, Lumba, Bhera and Leela were convicted for offences Under Sections 148,323 and 341 IPC and each of them were sentenced to one year’s rigorous imprisonment on the first count, three months’ rigorous imprisonment on the second count and fifteen days simple imprisonment on the third count. Accused Bhera was additionally convicted for offence Under Section 325 IPC and sentenced to one year’s rigorous imprisonment and a fine of Rs. 100/-, in default of payment of which three months’ further rigorous imprisonment was awarded. All the substantive sentences awarded to each of the accused were ordered to run concurrently and further that all the accused were given benefit of Section 428 of the Code of Criminal Procedure.
4. The facts leading to these appeals are that a first information report Ex. P. 21-A was lodged at Police Station, Rohida, District Sirohi on 9th of June, 1982 at 2 a.m. by Rama S/o Taja (PW 12) wherein it was alleged by him that his brother Mana S/o Teja, his nephew Sama S/o Mana, Bhima S/o Mana and Deva S/o Rama were returning to their house for evening meals from Arath at about 9 p.m. When they were near on way Arath Nala they were way-laid by Natha, Jeewa, Leela, Hatha, Rama Hameera, Lumba, Manra and Bhera resident of Dhanari and Achla S/o Leela resident of Mandwara. They were all armed with axes and lathies with iron rights. His brother Mana, his nephew Sama, Bhima and Deva were mercilessly beaten by lathies and axes and they been resulting in multiple injuries, when they cried for help Hatha S/o Roopa, his mother Holi and Hatha’s wife Kesi alongwith Gamna’s wife Puri arrived at the place of occurrence and all the ten accused persons inflicted injuries on their persons also. He further mentioned in the report that details about the persons who initiated the occurrence can be given by the injured person specially Rama. He was only at Arath and he thereafter rushed on the place of occurrence and saw the injured persons lying in a pool of blood. A number of persons from village had gathered there. Thereafter, they were taken for treatment and he went for lodging the report. Hewever, on the way when they were going to Rohida, Mana succumbed to injuries. Motive of crime as given in the report was that there are two parties in the village and there had been previous court cases also between them. On receipt of this report, Police registered the case for offence Under Sections 147, 148, 149, 302, 307, 325, 323 and 341 IPC, Investigation commenced and nine persons after investigation, were chargesheeted. It is pertinent to mention that during investigation, the police got all the injured medically examined and on complainant side Smt. Puri, Smt. Keshi, Sama, Hatta, Holi and Deva were found to have sustained injuries. Autopsy of corpse of deceased Mana was got done and Dr. Noor Mohd. (PW 4) who performed the post-mortem, found six injuries on his person. According to him two injuries were by blunt object and rest were by sharp edged weapon. The cause of death in his opinion was shock due to excessive loss of blood from the wounds and multiple fractures. All the nine accused persons who were chargesheeted were conmitted to the Court of Sessions by learned Judicial Magistrate, Abu Road. At trial, prosecution examined nineteen witnesses in support of its case. The accused who denied the occurrence, examined four witnesses in their defence. The learned Sessions Judge found the offence Under Section 302 IPC proved against the accused-appellant Jeewa on the strength of the statement of Bhima (PW 6), corroborated by medical evidence i.e. the statement of Dr. Noor Mohd. (PW 4) and the recovery of knife in pursuance of the information given Under Section 27 of the Evidence Act Ex.P. 43. He further convicted and sentenced the other accused-appellant as indicated above. Aggrieved of the conviction and sentence all the nine appellants preferred one represented appeal while accused Jeewa also sent the jail appeal and as mentioned above both the appeals are being disposed of by this common Judgment.
5. Learned Counsel for the appellants while pressing the appeal for Jeewa submitted t that the findings arrived at by the trial Court are not in consonence with the evidence which has come on record is thus perverse. His submission is that prosecution has examined as many as six injured eye witnesses but except for Bhima none of them attributed any sharp weapon of offence to Jeewa, and Bhima too has not attributed knife in the hands of accused-appellant Jeewa in his statement Under Section 164, Cr. PC. It is submitted that on all important points he has changed his statement. He has also resiled from his police statement regarding various sequences. There is no other ocular evidence to connect the accused with the offence Under Section 302 IPC commenting on the medical evidence also, the learned Counsel’s submission is, that a perusal of the post-mortem report indicates that three types of weapons have been used while injuries on the person of Mana. It is submitted that PW 4, Dr. Noor Mohd. in his statement admitted that injuries No. 1, 3 and 4 could be caused by knife but injury No. 2 could not be caused by knife and particularly the Article 6 which has been recovered at the instance of the accused Nos. 5 & 6 were caused by lathi. It is submitted that another significant fact is that according to medical evidence, it was the cumulative effect of all the injuries which was the cause of death and no single injury could cause death in the instant case. It is, therefore, submitted that prosecution has miserably failed to connect the fatal blow with accused appellant Jeewa. Regarding the recovery of the knife it is submitted that it has wrongly been connected with the injury caused, in as much as there is no evidence on record to suggest that the knife was stained with human blood. In this view of the matter, the submission of the learned Counsel is there is no evidence to connect the accused for the offence Under Section 302 IPC and his case is not distinguishable than that of other accused persons who have been convicted for the offence Under Sections 302, 341 and 148 IPC.
6. Arguing the appeal on behalf of Natha, Achla, Hatha, Rama, Manra, Lumba, Bhera and Leela, it is submitted that the evidence is too weak to connect them with the allegations of forming an unlawful assembly and also that since the incident took place at dark hour it was not possible to identify the accused persons.
7. Mr. Suresh Kumbhat appearing on behalf of the complainants vehemently argued that as many as four incised wounds have been caused on the person of deceased and that too on his face. He submits that there is no reason to disbelieve the statement of Hameera who has categorically stated that accused- appellant Jeewa struck a lathi blow on the head of deceased Mana who fell down and even after becoming his helpless, the accused did not rest and sat on his chest and threafter inflicted knife blows on his face. He submits that there are seven witnesses in the case and six of them are injured whose injuries have been proved by Dr. Noor Mohd. (PW 4) and as such his presence at the place of occurrence cannot be disputed.
8. We have given our anxious consideration to the rival contentions and perused the entire record. We would first deal with the appeal filed by Jeewa who has been convicted for offence Under Section 302 IPC. Prosecution has examined, as stated above, seven eye witnesses. PW 6, Bhera has given an aggresive picture of the incident. While giving the details, he has stated that Jeewa had given a lathi blow on his head as a result of which he fell down He stated that Jeewa and Rama alongwith all others have inflicted injuries on the person of Mana. Jeewa sat on him and inflicted knife blows on his face and head. He stated that 8 to 10 injuries had been inflicted on the person of deceased Mana. This witness in cross examination had to admit that he has not stated that he attributed knife injury on the person of deceased either in his police statement Ex. D. 3 or his statement Under Section 164, Cr. PC. recorded by the Magistrate. He in his statement Under Section 164, Cr. PC. had stated that Hameera, Bhera, Jeewa and Rama all the four were armed with knives which is nobody’s case. He resiled from this statement. After being confronted with several parts of previous statement, he had to admit that he does not know who inflicted injury on which part of the body. He has also tried to shift the time of occurrence by stating that when the incident took place it was not dark and it was almost dusk. A persual of the entire statement of this witness does no inspire confidence and at any rate he is not wholly reliable witness. So far as the other injured eye witnesses namely PW 7, Smt. Keshi wife of Hatta, PW8, Hatta S/o Roopa, PW9, Smt. Puri W/o Gamna, PW 13 Samiya S/o deceased Mana and PW 15 Deva S/o Dungra, none of them come forward with the story of accused Jeewa inflicting knife injuries on the deceased Mana. They give an omnibus statement attributing the injuries on the Persons of deceased by all the accused and have further admitted only lathi blow on the head by accused Jeewa. Thus, the statement of Bhima is not corroborated by the evidence of any other eye witness. If we look at the medical evidence that too does not corroborate the statement of Bhima as Dr. Noor Mohd. (PW 4) has categorically stated that the injury No. 2 could not be caused by the knife and that there were injuries by blunt object also on the person of the deceased. Thus, we are left only with the evidence of recovery of knife which in our opinion is of hardly any significance in view of the fact that prosecution has failed to show that is was smeared with human blood. Therefore, looking from any angle, we are left with no legal and convincing evidence to connect the accused with the offence punishable Under Section 302 IPC. However, in view of the fact that there is overwhelming evidence that he was a member of the unlawful assembly which has attacked the complainant party injurying as many as seven persons, he is vicarously liable for causing injuries on the person of the deceased as well as other persons and cannot escape the liability as has been fastened on the other accused who have been convicted and sentenced in this case. Hence, his case will have to be taken at par with that of all the other accused appellants. There is overwhelming evidence on record to suggest that the complainant party was attacked by the accused appellant and they inflicted injuries on the person of Bhima, Keshi, Hatta, Puri, Samiya, Deva and Mana. Injuries on the persons of all these persons have been proved by Dr. Noor Mohd. (PW 4). The statements of these witnesses are further corroborated by the first information report lodged by Rama where the manner of incident alleged is identical to the one slated in the Court.
9. We have gone through the reasonings given by the leaned trial Court, while holding all these persons guilty of offence Under Sections 323, 341 and 148 IPC and see no reason to take a different view of the matter. The conviction of all these accused including that of Bhera Under Section 325 IPC therefore is sustainable and is maintained.
10. The result of the aforesaid discussion is that we partly allow the appeal filed by Jeewa, set aside his conviction for offence Under Section 320 IPC, and instead convict him for offence Under Section 323, IPC to which offence he has also been convicted for inflicting injuries to other injured person. Therefore, there is no need for recording any other sentence on him. The imprisonment for life given to him, is therefore, reduced to one year for offence Under Section 323, IPC and maintain the conviction and sentence for offences Under Sections 148 and 341 as awarded by the trial Court. The accused-appeallant Jeewa is in jail since 12.6.82 and thus has suffered imprisonment for a period much more than awarded to him. He shall be released forthwith if not required in any other case. We do not find force in the appeal of accused appellants Natha, Achla, Hatha, Rama, Manra, Lumba, Bhera and Leela and dismiss the same.
