JUDGMENT
Ajit Singh, J.
1. Appellants Jham Singh, Asharam, Manshram and Dharam Chandra, the accused persons in this case, have been convicted under Section 304 (Part-I)/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years by Additional Sessions Judge to the Court of Sessions Judge, Mandla, vide judgment dated 21-12-1989 in Session Trial No. 141/88 for causing the death of Punnulal, aged 60 years, the deceased in the case. The appellants have been found guilty of causing injuries on the deceased with Lathis on 16-6-1988 at about 9:00 p.m. at his house situated at village, Dhutka, district Mandla.
2. Briefly stated the facts giving rise to this appeal are as under :–
All the appellants, deceased Punnulal and the material witnesses belong to village, Dhutka, within the limit of Bamhni Police Station in Mandla district. In fact, all of them are virtually neighbours. Punnulal and his son, Ram Kumar (P.W. 1), had sold their land to their relative, Vipatlal (P. W.6), and took Rs.10/- as advance from him. Appellant Ashram insisted that since the said land is by the side of his agricultural land, the same may be sold to him and for that he was willing to pay more price but Punnulal declined his offer. Consequently, on 16-8-1980 at about 9:00 p.m. all the appellants, who are related to each other, went to the court yard of the house of Punnulal and Rani Kumar (P.W. 1) where they brandished their Lathis. Punnulal, on seeing the attitude of appellants, tried to escape but all of them allegedly caught hold of him and thereafter assaulted him with their Lathis. Appellant Asharam caused a grievous injury on the nose of Ram Kumar (P.W. 1) by throwing a stone at him. Appellants also caused injuries to Vipatlal (P.W.6), Bajyyan Bai (P.W. 8) and Parvati Bai. The incident was witnessed by these injured persons and also by Pancham Gond (P.W.2) and Jagannath (P.W. 5). Punnulal was taken to the Police Station, Bamhni, by his son Ram Kumar (P.W. 1). M.S. Parihar (P.W. 15), who was then posted as Sub-Inspector of the said Police Station, recorded First Information Report, Ex. P1, lodged by Ram Kumar (P.W. 1) and thereafter registered Crime No. 168/88 for offences punishable under Section 447, 323/ 34, 341 and 324 of the Indian Penal Code against the appellants.
3. Punnulal was immediately sent to Primary Health Centre, Bamhni Banjar for medical treatment where he was examined by Dr. A. K. Jain (P.W.12) who was posted there as Assistant Surgeon. He found the following injuries on the person of Punnulal:–
(i) Lacerated wound 1.5 cm. X 0.5 cm, X 0.5 cm. on the right occipital region of scalp.
(ii) Contusion 5 cm, X 3 cm. on the outer side of right arm at its lower part.
(iii) Contusion 6 cm. X 2 cm. on the right scapular region of back.
Dr. A. K. Jain (P.W. 12) in his injury report, Ex. P12, opined that injury Nos. 2 and 3 are simple in nature and caused by hard and blunt object. To ascertain the nature of injury No.1 he referred the patient, Punnulal, to District Hospital, Mandla, for X-ray. Dr. A. K. Jain (P.W.12) on the same date also medically examined Ram Kumar (P.W. 1), Vipatlal (P.W.6), Baiyyan Bai (P.W.8) and Parvati Bai and their injury reports are Exs. P10, P13, P15 and P14 respectively. The injuries on the person of Vipatlal (P.W.6), Baiyyan Bai (P.W.8) and Parvati Bai were reported to be simple in nature whereas the injury on the nose of Ram Kumar (P.W. 1) was of grievous nature which was confirmed by the X-ray plate, Ex. P11. In the X-ray of Ram Kumar (P.W. 1) a fracture was found in Nasal Cartilage and dislocation of lower piece. Punnulal was shifted to District Hospital, Mandla, where he succumbed to injuries on 8-7-1988 at about 9:50 a.m. Dr. G. K. Shirvastava (P.W. 14) conducted the postmortem on the body of deceased Punnulal. He, in his report, Ex. P18, found the following ante-mortem injuries on the body of deceased Punnulal:–
I
(i) Bruise on the scalp covering an area of 61/2″ x 41/4″ on dissection, clotted blood found, tissues and muscle congested at the right side of scalp.
(ii) Bruise over the right temporal region 4″ x 11/2″ on dissection, clotted blood found and congested tissues and muscles found.
II
Ante-mortem fracture of the skull – star shapped fracture starting from the right parietal prominence reaching to the frontal bone – right parietal bone. Right parietal bones reaching up to the right ear. There is clotted blood found between the fractured pieces gap. There is depressed fracture at the right parietal prominence. It also injured the brain matter and meninges.
According to the opinion of Dr. G. K. Shrivastava (P.W. 14) cause of death of Punnulal was due to shock, haemorrhage and fracture of skull and injury due to the brain matter.
4. M.S. Parihar (P.W. 15) during investigation seized the bed-head ticket concerning the deceased-Punnulal regarding which papers are Ex. P9. He thereafter recorded the statement of witnesses and filed a charge-sheet against the appellants.
5. The Trial Court framed charges against all the appellants under Section 302/34 of the Indian Penal Code. Surprisingly, no charge was framed against any of them for causing injuries to Ram Kumar (P.W. 1), Vipatlal (P.W. 6), Baiyyan Bai (P.W. 8) and Parvati Bai. The appellants in their defence abjured their guilt. Appellants-Jham Singh, Asharam and Dharam Chandra further pleaded that they acted in their right of private defence and they did not cause injuries to Punnulal for causing his death. Appellant-Mansharam has taken a plea that he was not present in the village, Dhutka, on the date and time of incident and he has been falsely implicated.
6. The Trial- Court relying upon the evidence of eye-witnesses Ram Kumar (P.W. 1), Vipatlal (P.W.6) and Baiyyan Bai (P.W.8) and also further relying upon the corroborative evidence of Nandlal (P.W. 2) and Jagannath (P.W. 5) convicted the appellants under Section 304 (Part I) of the Indian Penal Code for causing the death of Punnulal. The Trial Court disbelieved the defence of the exercise of right of private defence of the appellants Jham Singh, Asharam and Dharam Chandra. The Trial Court also disbelieved the defence of appellant-Mansharam that he was not present on the date and time of incident at village Dhutka. The Trial Court, further considering the facts and circumstances of the case particularly the nature of injuries and death of Punnulal after about 21 days from the date of incident, held that the act of appellants does not come within the purview of offence punishable under Section 302 of the Indian Penal Code.
7. The conviction of appellants was challenged by learned counsel on the ground that the Trial Court ought to have disbelieved the evidence of eye-witnesses as they were closely related to deceased and hence, they were interested witnesses. It was further argued that there was no common intention on the part of appellants to cause the death of Punnulal. Learned counsel also submitted that defence of appellants should have been believed by the court below and lastly it was submitted that the sentence awarded is too harsh.
8. I have gone through the evidence of eye-witnesses Ramkumar (P.W. 1), Vipatlal (P.W.6) and Biyyan Bai (P.W.8). They are all injured witnesses and their presence cannot be doubted at the scene of occurrence. It is a well settled principle of law that merely because the witnesses are related to victim their evidence cannot be discarded or disbelieved. It requires only careful scrutiny by the Courts. Ramkumar (P.W.1) is the son of deceased Punnulal. He has deposed that since he and his father Punnulal had declined to sell their land to Asharam even on a higher price as they had already sold the same to Vipatlal (P.W.6) and had even taken an advance from him, appellants came to their house and insisted that the land be sold to them. On refusal by Punnulal, the appellants started abusing and when Punnulal tried to escape, all of them assaulted him with Lathis. According to Ramkumar (P.W. 1), first blow on Punnulal was dealt by appellant-Asharam and thereafter another blow was dealt by appellant-Jhamsingh. He has further deposed that as he was about to lift his father, appellant-Asharam threw a stone at him which struck his nose resulting into a fracture of Nasal Cartilage. Ramkumar (P.W.1) has deposed that because of the stone injury he fell down and became unconscious. According to him he regained senses after sometime and then he approached the Kotwar Nandlal for lodging a report. It is relevant to mention here that the post-mortem report, Ex, P. 18, of deceased-Punnulal reveals that he sustained only two injuries both on the head which resulted in the fracture of skull and injury to brain causing his death. The said two injuries appear to have been caused by appellants-Asharam and Jham Singh, Ramkumar (P.W.1) himself admitted that he had become unconscious because of stone injury caused to him by appellant-Asharam, No specific allegation of assault against other appellants namely, Mansharam and Dharam Chandra has been attributed by him. He has also admitted that initially on the date of incident, appellants first had a talk with Punnulal with regard to selling of land which followed into a verbal duel and ultimately led into a sudden attack by the appellants. It is also relevant to appreciate here that the version of Ramkumar (P.W. 1), that after the second blow his father had fallen down and as he tried to lift him a stone was thrown at him, is absent in his statement Ex. D.1. Nandlal (P.W.2) Kotwar of the village has corroborated the evidence of Ramkumar (P.W. 1) that after the incident he had approached him for lodging a report against the appellants in the police station. He has also admitted that Ramkumar (P.W. 1) had informed him that the appellants indulged into a ‘Maarpeet’ with his father. Likewise, Jagannath (P.W.5) had deposed that when he went to the house of Ramkumar (P.W. 1) on hearing the cries of the wife of Punnulal, he was informed by him that appellants Asharam, Jham Singh and Dharam Chandra have assaulted his father.
9. Similar is the evidence of another injured eye-witness Vipatlal (P.W.6). He is the nephew of Punnulal to whom the land was sold. Vipatlal (P.W.6) deposed in his evidence that Asharam and Jham Singh dealt a blow each on the head of Punnulal with their Lathis. Thereafter, he made a general and omnibus allegation against all the appellants about the assault on Punnulal. But here also, the fact remains that only two injuries have been revealed on the body of deceased-Punnulal as per the post-mortem report Ex. P. 18. He has also admitted in his evidence that at the time of discussion between the appellants and Punnulal regarding the land, he was in his house.
10. Baiyaan Bai (P.W.8) is the wife of deceased-Punnulal and she too had sustained a simple injury on the date of incident. She has although deposed in her evidence that all the appellants had assaulted her husband Punnulal but she has also admitted that she reached the place of occurrence after the assault on Punnulal was over, Thus from the evidence of eye-witnesses Ramkumar (P.W.1), Vaipatlal (P.W.6) and Baiyyan Bai (P.W.8), I conclude that their evidence establish beyond all reasonable doubt that; only appellants-Asharam and Jham Slngh caused injuries on the deceased Punnulal which resulted into his death, There was no common intention on the part of appellants-Mansharam and Dharam Chandra to cause his death, It seems that they might have caused injuries to the eyewitnesses taut for that they have neither been charged nor convicted by the Trial Court. The finding of the Trial Court that all the appellants with a common intention assaulted the deceased-Punnulal with their Lathis and caused such injuries which resulted into his death is based on no evidence. The further finding of the Trial Court that the appellants caused injuries on the eye-witnesses when they tried to save the deceased-Punnulal is also perverse and based on no evidence. In fact, not a single eye-witness has deposed that he was assaulted by any of the appellants because he tried to save the deceased-Punnulal. It seems that while the discussion on land deal was going on, suddenly appellants-Asharam and Jham Singh each dealt a Lathi blow on the head of deceased-Punnulal which resulted into his death after 21 days in the hospital. This is also corroborated by the post-mortem report Ex. P. 18 of the deceased Punnulal. The evidence of eye-witnesses Ramkumar (P.W. 1) and Vipatlal (P.W. 6) that all the appellants assaulted the deceased-Punnulal with their Lathis all over his body apparently is an exaggerated version of the incident and I do not believe the same, moreso, for the reason that in the postmortem report Ex. P. 18 of the deceased-Punnulal only two injuries have been described. I am, therefore, of the view that the prosecution has failed to prove the guilt of appellants-Mansharam and Dharam Chandra beyond all reasonable doubt for causing the death of Punnulal by sharing common intention with appellants-Asharam and Jham Singh.
11. The argument of the learned counsel for the appellants that the Trial Court ought to have believed the defence of the appellants-Jham Singh, Asharam and Dharam Chandra regarding their right of private defence has no merit. The Trial Court has categorically held that there is absolutely no evidence, oral or documentary, on record to show that any of the appellants had right of private defence. No injury whatsoever has been found on any of the appellants nor there is any report made by them to the police with regard to the incident. It, thus, appears that their plea of right of defence is imaginary and afterthought.
12. Adverting to the contention of learned counsel for the appellants, no offence under Section 304 (Part I) of the Indian Penal Code is made out against the appellants, it has been held by the Supreme Court in Mahesh Balmiki v. State of Madhya Pradesh, AIR 1999 SC 3338 : (1999 Cri LJ 4301) that there is no principle that in all cases of single blow Section 302 of the Indian Penal Code is not attracted. Single blow may, in some cases ential conviction under Section 302 of the Indian Penal Code, in some cases under Section 304 of the Indian Penal Code and in some other cases under Section 326 of the Indian Penal Code. The question with regard to nature of offence has to be determined on the facts and in the circumstances of each case. The nature of injury, whether it is on the vital or on the non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant facts which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was assaulted twice on his head by the appellants Asharam and Jham Singh with their respective Lathis. The deceased was unarmed and aged 60 years at the time of assault. These facts clearly establish that the appellants had intention of causing his death or of causing such bodily injury as is likely to cause death. The Trial Court thus, did not commit any illegality in convicting the appellants-Asharam and Jham Singh for an offence under Section 304 (Part I) of the Indian Penal Code. The sentence of five years’ rigorous imprisonment awarded to them, under the facts and circumstances of the case is Just and proper.
13. For the above reasons the appeal is partly allowed. Conviction and sentence of appellants-Mansharam and Dharam Chandra are set aside and they are acquitted of the Charges under Section 304 (Part I) of the Indian Penal Code, They are already on bail. Their bail bonds are discharged. The conviction and the sentence of appellants-Jham Singh and Asharam are confirmed. Appellants-Jham Singh and Asharam are on bail, Their bail bonds shall stand cancelled. They shall immediately surrender and serve out the remaining period of sentence.