JUDGMENT
Gopal Krishna Sharma, J.
1. These three appeals have been preferred separately by the accused-appellants against the same judgment dated 15th February, 1986, passed by the Additional Sessions Judge, Baran, and hence, they are being disposed of by this common judgment.
2. The learned Additional Sessions Judge has found all the accused-appellants guilty under Sections 148 and 302/149, IPC for offence under Section 302/149, IPC he has sentenced each appellant to imprisonment for life, and for that under Section 148, IPC, to rigorous imprisonment for two years. Both the sentences awarded to the accused-appellants, were, however ordered by the learned Additional Sessions Judge, to run concurrently.
3. Succinctly narrated, the story of the prosecution is that on 6th April, 1984, at PS Anta, a written report (Ex. P 12) was lodged by one Ram Niwas, alleging that Ramayan Paath was going on in village Puranakhera Ajipura, and that he himself and about ten other persons were sitting there. On the preceding night, at about 10-10.30 O’clock, 5-7 persons, namely, Babulal Bheel, Madanlal, Morpal, Kalulal, Harish Chandra and two other persons whose names he did not know, came from the side of village Baldara armed with ‘Kuntiyas’ and lathis they came to the place where the complainant party was sitting, and Madan Bheel wished them. After that, Babulal Bheel inflicted Kuntiya blow on the head of Ramkishan with the intention of committing his murder, as a result of which the latter fell down on the ground, and then, the other accused persons inflicted kuntiya and lathi blows to him. The persons sitting there raised hue and cry. And the assailants ran away. Ramkishan was then brought to the ‘Dhooni’ of Maharaj (Sant), and in the gas-light, they all saw the injuries on his body-blood was coming out from the head and mouth of Ramkishan, Ramkaran Dhakar, Girraj Prasad, Ramesh, Deokinandan and Ramcharan Thakur had also witnessed the incident. Ramkishan was then brought in a bullock-cart, to Anta, and from there, to Kota. On this report, a case under Sections 147, 148, 149 & 307, IPC, was registered.
4. When Ramkishan injured was taken to Kota Hospital, a written report was also submitted by Onkarlal at PS Nayapura, Kota, which is marked Ex. P. 24, and on the basis of this report (Ex. P 24), a regular FIR without any number, was registered. This report was entered in the ‘Roznamcha’ at No. 433. After preparation of the regular FIR, it was sent to PS Seeswali, as the incident had taken in the jurisdiction of that police station. Later on, the officer-in-charge of PS-Seeswali, forwarded the said report to PS Anta in whose jurisdiction, the incident had taken place. At PS Anta, a regular report had already been lodged and FIR 52/85 was prepared. Thus, the second report lodged at PS Nayapura, was later on forwarded to PS Anta. After completing the investigation, the police submitted a challan under Section 148 & 302/149, IPC, against seven accused persons.
5. The trial court framed charges against the accused who pleaded not guilty and claimed trial. The prosecution to prove its case, examined as many as 26 witnesses, but, no defence evidence was led by the accused persons. The learned trial court, after concluding the trial and hearing both the sides, found that no case was made out against Dhannalal and Harish Chandra, and hence, they both were acquitted of the charges levelled against them. The accused-appellants were found guilty of offences and sentenced as mentioned above.
6. In this case, Ramniwas PW 6, Ram Kalyan PW 7, Ramesh PW 8, Jankilal PW 10, Girraj PW 15, Ramkaran PW 16, Laturan and PW 17, Deoki Nandan PW 20 and Onkar PW 24 are the alleged eye-witnesses to the occurrence. Some of these witnesses were also injured at the hands of the accused persons.
7. Dr. Naveen Saxena PW 4 examined the injuries of Ramkishan, out of which, three were incised wounds, four were lacerated wounds and two were abrasions. In the opinion of the doctor, the cause of death was coma as a result of the head injuries.
8. The learned Counsel for the appellants have argued that there are two reports in this case-one lodged at PS, Anta, & the other at SP, Nayapura, Kota. The report at PS-Anta was made at about 11.45 p.m. as is clear from Ex. P 13. So, the argument was that this report was lodged after delay. According to them, the delay in lodging the FIR creates suspicion in the prosecution story, and that the entire case should be thrown away.
9. Contrary to it, the learned Public Prosecutor argued that by mistake, the time in the FIR (Ex. P 13) has been written as 11.45 p.m. which, actually was 11.45 a.m. To satisfy us, the case diary was shown to us. The site-plan, after, recording the FIR, was prepared by the ASI on 6th April, 1984, at about 1.15 p.m. It means that after recording the FIR, the regular FIR 52/84 was chalked out and investigation was started. The ASI went to spot and prepared the site-plan (Ex. P 14) at about 1.15 p.m. If the report had been lodged at 11.45 p.m. on 6th April, 1984, then the ASI could not have inspected the site on 6-4-1984 at 1.15 p.m. Another point argued was that Ramniwas was medically examined at Anta Hospital on 6th April, 1984 at about 7 p.m. His injuries could only be examined if a case had been registered. If, according to the learned Counsel for the appellants, the case was registered at 11.45 p.m. then, there could not be any examination of the injuries of Ramniwas at 7 p.m. Thus, these circumstances indicate that by mistake, in the FIR (Ex. P 13), the time for lodging the report has been shown as 11.45 p.m. which actually was 11.45 a.m. as argued by the learned Public Prosecutor. Hence, the argument of the learned Counsel for the appellants, in this respect has no substance.
10. It was vehemently argued that two reports were lodged by two different persons, and that, there is difference in the wordings of these reports. According to the learned Counsel, these reports are false and fabricated ones.
11. We have considered this argument, and we find no substance in it. Ramkishan injured was first taken to Anta Hospital in a bullock-cart. He was referred to Kota Hospital because, his condition was serious, and immediately, he was taken to Kota Hospital. To Anta, Ramniwas had accompanied Ramkishan and lodged the report, but, he did not accompany him to Kota. Onkar had taken Ramkishan to Kota Hospital.
12. According to Dr. Naveen Saxena PW 4, he examined Ramkishan on 6th April, 198(sic) on police request. The injury report is Ex. P 9. He examined the injuries of Ramkishan at about 6.30 a.m. Thus, it is clear that Onkar had accompanied Ramkishan to Kota Hospital before 6.30 a.m. and immediately, the letter was admitted to hospital and examined.
13. It was argued that in the injury report (Ex. P 9), the number of the requisition letter has not been mentioned, which creates doubt about the facts as narrated by the prosecution.
14. This argument too has no force. In the report (Ex. P 9), no doubt, the requisition number of the letter has not been mentioned, but the date has been mentioned. The letter was sent by the police on 6th April, 1984 and on the basis of that requisition letter, the injuries were examined. It is immaterial that the number of the requisition letter has not been mentioned in the injury report (Ex. P 9). In our opinion not mentioning the number of the requisition letter, has no effect on the merits of the case. It is clear that Ramkishan was taken to hospital on 6th April, 1984 and he was medically examined at about 6.30 a.m. The report (Ex. P 24) was submitted by Onkar, and on the basis of that written report, the First Information Report without number was prepared which is (Ex. P 25), and the report was ultimately sent to police station, Seeswali, which subsequently, forwarded it to police station, Anta. So, there is no illegality in lodging two reports at two police stations. Both the reports were lodged by two different persons, but the incident was the same. Minor discrepancies in both the reports do not discard the entire prosecution story. The argument advanced in this respect on behalf of the appellants, has, therefore, no substance.
15. The learned Counsel for the appellant have read over to us the statements of all the eye-witnesses extensively and we have also read their statements very carefully. The argument is that the statements of these witnesses, are unreliable ones. It was also argued that there was dark night and in the darkness, it was not possible to identify the assailants. In this respect, we have examined the statements. It has been established by the witnesses that there were two gas-lights one at the place where Ramayan-Paath was going on, i.e., at the Hanuman Chattari and the other at the Dhooni of Maharaj, which was at a distance of 20-25 paces away from the Hanuman-Chhatri. It is in the evidence that the incident had taken place at the place which was 15-20 paces away from the Dhooni. This place was also about 30 paces away from the Hanuman-Chhatri. The Chhatri was at a height of about 4, feet, where Ramayan-Paath was going on. Ramkishan (deceased) along with other persons, was sitting at a place which was at a distance of 15-20 paces away from there. The place was near the ‘Gadar’ which was flowing from Village Baldars. As is shown in the site-plan (Ex. P 14), the assailants had come along the side of the ‘Gadar’, from Village Baldara. Ramkishan and the others were sitting at places marked A-1 and A-2. All the witnesses have consistently stated in their statements that the assailants had come together from Village Baldara along side the ‘Gadar’ to the place where Ramkishan and others were sitting. Accused Madan wished “Ram Ram” to everybody, and soon thereafter, Babu Bheel inflicted one Kuntiya blow on the head of Ramkishan. The statements to this effect are consistent. All these witnesses were cross-examined at length, but, their testimony was not shattered. We believe the statements of the eye-witnesses of this effect. It has come in evidence that there was no light where Ramkishan and others were sitting, but, the gas-light was in the Dhooni as well as in the Hanuman-Chhatri. The night was dark, no doubt, there were two gas-lights. The members of the complainant party were sitting in the open place which was about 30 paces away from the Hanuman-Chhatri. and 20 paces from the Dhooni. So, there would have been sufficient light by the two gas-lights. Thus, it was possible to identify the assailants in the gas-light, though, the night was dark. All the witnesses have stated that after infliction of the Kuntia-blow by Babu Lal Bheel Ramkishan fell down on the ground, and then, the other accused persons also gave Kuntiya and lathi blows to him. After giving beating, the assailants ran away from the scene of occurrence. Ramkishan was then lifted and taken near the Dhooni of Maharaj, and in that light, his injuries were found. He had injuries on his head and mouth and blood was coming out therefrom. In this regard, the statements of all the eye-witnesses, are consistent, and we see no reason to discard their testimony.
16. Another argument advanced by the learned Counsels for the appellants is that there is difference in the statements of the witnesses as to who was reciting the Ramayan. According to their arguments, some witnesses have stated that Onkar was doing it then some say that Girraj was reciting the Ramayan. Thus, according to them, the statements of the eye-witnesses prove it that they all are made out witnesses.
17. We have considered this argument also, and perused the evidence. This argument has no substance. All the witnesses have stated that Onkar was in the Hanuman-Chhatri and he was reciting the Ramayan and that, when the assailants inflicted the injuries to Ramkishan and ran away, Girraj went to Hanuman-Chhatri and relieved Onkar and started reciting the Ramayan, and further that, Onkar then came to spot and then near the Dhooni and accompanied Ramkishan in a bullock-cart to Anta first and then to Kota Government Hospital. So, there is no discrepancy or contradiction in the statements of the witnesses.
18. Mr. N.C. Chaudhary, the learned Counsel has laid much stress on the report (Ex. P 24) and argued that this was the first report and that investigation had started on its basis. According to him, the report (Ex. P 13) was a subsequent document which was a fabricated one having been prepared later on suiting the prosecution story. It was also argued by him that in the report (Ex. P 24), the names of the assailants have not been mentioned, nor have their descriptions been mentioned. Informant Onkar knew the names of all the assailants, but still, he has stated in the report that 9-10 persons armed with sharp weapons had arrived at the spot. Later on, the next para of this report (Ex. P 24) shows that it was written subsequently and is also in the handwriting of some other person. Onkar has denied some of the portions of this report to have written. Thus, according to Mr. Chaudhary, the report (Ex. P. 13) at PS, Anta is a fabricated document, and so, the entire prosecution story becomes doubtful.
19. We have already discussed here in above both the reports in detail. Suffice it to say that the report (Ex. P 24) was lodged at PS Nayapura, Kota, by Onkar, at about 8.30 a.m. on 6th April, 1984, while the report (Ex. P 13) was lodged by Ramniwas at, Anta, on 6th April, 1983, at about 11.45 a.m. Ramniwas did not go to Kota. And, the in charge of the Police Station, Nayapura did not start investigation on the basis of report (Ex. P 4), but, he after chalking out the FIR without number, forwarded it to the concerned police station. So, it is incorrect to say that the investigation had started on the receipt of the report (Ex. P 24). Thus, the argument of Mr. Chaudhary has no substance.
20. It was also argued on behalf of the appellants that there is doubt about the recovery of the Kuntiya. In this respect, we have perused the record. The Kuntiya was recovered vide recovery-memo (Ex. P 26) from the place marked A-2 in the site-plan (Ex P 14). When the police came to spot, they found the Kuntiya lying there, and so, they took it in their possession. So, there is no doubt about the recovery of the Kuntiya.
21. It was then argued that the prosecution has failed to prove any motive of the accused-appellants behind the crime, and hence, the entire prosecution story should be thrown away. In this respect, the statement of accused Madanlal recorded under Section 313, Cr. P.C. was perused by us. He has stated that there was a rumour in the village that Ramkishan had committed rape on his wife, and that, on account of that rumour, he has been falsely implicated in this case. This reply itself given by Madanlal accused reveals the motive of giving beating to Ramkishan. It is thus clear that in order to take revenge from Ramkishan, the accused-appellants gave him beating. So, this argument too has no substance.
22. It was also argued on behalf of the appellants that no case under Section 302, IPC, has been made out, and there was no unlawful assembly; nor was there any common object of the accused persons and so, their conviction under Section 302/149, IPC is bad. In the alternative, it was argued that the accused-appellants had no intention of committing murder of Ramkishan but their motive was only to give some beating, which, at the most, can be said that to inflict grievous injuries to Ramkishan (deceased).
23. The learned Counsel for the accused-appellants, has relied on the following decisions: Bhajansingh and Ors. v. State of Punjab 1978 CAR (SC) 330; Gafoor and Ors. v. State of Rajasthan 1983 Cr. LR (Raj.) 599; Vajir Khan v. State of Rajasthan 1979 PCC 56. To the contrary, the learned Public Prosecutor has placed reliance on the case of Shakti Patra and Anr. v. State of West Bengal .
24. In the case of Bhajansingh (supra), it has been observed that none of the appellants had been specifically charged under Section 302, IPC and it was, therefore, not possible to hold any of the appellants in that case guilty causing the injury which was sufficient, in the ordinary course of nature, to cause death. In that case, the appellants were earlier convicted under Section 302/149, IPC, but, in the circumstances of the case and on the basis of the evidence, their Lordships of the Supreme Court found that the common object of the unlawful assembly was to cause grievous hurt, and, therefore, their Lordships set aside the convictions and the sentences imposed upon the accused persons under Section 302/149, and, instead found them guilty under Section 326/149, IPC.
25. In the present case, we have perused the entire evidence, and we do not find that the prosecution has established that the appellants had the common object of causing death. From the evidence, it is clear that they had common object and that common object was to cause injuries to Ramkishan. Under these circumstances, it can be said that the common object of the assailants was to cause grievous hurt to Ramkishan, who succumbed to the head injuries. There were only two incised wounds on his head while the assailants were five in number. Had the assailants any common object to commit murder there would have been more injuries on the body of Ram Kishan. The other injuries were lacerated wounds and abrasions. No doubt, the doctor has opined that injuries Nos. 1 & 2 were sufficient to cause death in the ordinary course of nature, but, in the circumstances of this case, we find that the common object of the unlawful assembly was to cause grievous hurt. But it is not clearly established as to who was the author of the fatal injury on the head of Ramkishan. No doubt, the head injury was sufficient in the ordinary course of nature to cause death, but from the circumstances of the case, we are not satisfied that the said injury was caused in prosecution of some common object of the assembly and that the members of the assembly knew it likely to be caused in prosecution of the common object. On consideration of all the facts and circumstances of the case, we are of the opinion that the common object of the unlawful assembly was to cause grievous hurt with Kuntiya which is sharp and dangerous weapon. So an offence under Section 326, IPC, is clearly made out. And, as all the appellants had formed the unlawful assembly, so, each appellant is responsible for this offence with the aid of Section 119, IPC.
26. In the case of Gafoor and others (supra), it was observed that the common object of the appellants was only to cause grievous hurt and not to kill anyone and that, it also could not be found that the appellants knew that the offence of murder was likely to be committed. Therefore, the convictions and the sentences under Section 302/149, IPC were set aside in that case, and the accused-appellants were convicted under Section 326/149, IPC.
27. In this case, the learned Counsel have argued that there was no mention of the fact in the FIR that there was any gas-light either in the Hanuman Chhatri or at the Dhooni, and so according to them, non-mention of this fact in the FIR creates doubt in the testimony of the prosecution witnesses who have stated that there were gas-lights at the spot. To support their contention, the learned Counsels have cited the case of Vajir Khan (supra) wherein, it was point for consideration that when the fact was not mentioned in the FIR that a lantern was burning in the house at the time of the occurrence, then whether it could be believed when the witnesses stated it in the trial, and it was held that had there been any lantern in the house as was sought to be made in the trial, then, the complainant would not have failed to mention this fact in the FIR. This case does not help the appellants in this case. It is correct that in this case, in the FIR, it was not mentioned that there were gas-lights at the spot, but not mentioning this fact in the FIR, does not have effect on the merit of the case, because it is admitted fact that there was dark night, and also that ‘Ramayan-Paath’ was going on. In a dark night, Ramayan Paath could not have been done without any light. So it is obvious that there was some light, Ramayan-Paath was going on. The witnesses have stated in the trial that there were two gas-lights one, at the Dhooni and the other at the Hanuman-Chhatri where ‘Ramayan-Paath’ was going on. Therefore, not mentioning about the gas-lights in the FIR, does not have any bearing on the merits of this case. The witnesses have stated that there were two gas lights, and there is no reason to disbelieve their version. Therefore, the rulings cited by the learned Counsel for the appellants are not helpful to the appellants.
28. In reply to the above argument, the learned Public Prosecutor has cited the case of Shakti Patra (supra). In that case also, it was argued on behalf of the accused-appellant that there was no mention of any torch-light in the FIR or in the statements of the witnesses before the police, and the presence of torch was not proved, so it would not have been possible to identify the appellants. In that case, it has been observed that even if this omission was there, it had lost its significance in view of the direct testimony of PWs. Nos. 3, 4 & 7, who stated that when they had reached the spot they had found a torch burning there, which showed that the version of PW 1 in that case that he had a torch with him, in the light of which he had identified the appellants, was correct. In that case, Hon’ble Judges of the Calcutta High Court did not agree with the argument advanced by the appellants.
29. In the present case also all the witnesses have stated that there were two gas-lights, in the light of which, the appellants were identified. So the omission of not mentioning the fact of presence of the two gas-lights in the FIR has no significance in view of the statements of the prosecution witnesses.
30. After perusing the entire record, we are of the opinion that the accused-appellants had formed an unlawful assembly and they had a common object of causing grievous hurt only, to Ramkishan (deceased). As discussed above, we are of the opinion that the appellants had no common object of committing his murder. As such an offence under Section 326, IPC only is made out in this case. Therefore, the convictions and the sentences passed against the accused-appellants under Section 302/149, IPC by the trial court, are liable to be set aside.
31. In the result, all the three appeals are partly accepted. The convictions and the sentences awarded to the appellants by the trial court Under Section 302/149 IPC, are hereby set aside. But, instead, we find them guilty of offence Under Section 326/149, IPC, and sentence each of them to rigorous imprisonment for four years, and a fine of Rs. 1000/- and in default of payment of fine, to further undergo simple imprisonment for six months. The convictions and the sentences of all the appellants Under Section 148, are maintained. Both the sentences of all the appellants shall, however, run concurrently. Appellants Babu Bheel, Morpal and Madan are in jail. They be detained in jail to undergo the sentences of imprisonment awarded to them by this Court. Appellants Babu Chamar and Kalu are on bail. The Additional Sessions Judge, Baran, is, therefore, directed to issue warrants of arrest against appellants Babu Chamar and Kalu, and send them back to jail to undergo the sentences of imprisonment awarded to them by this Court.