JUDGMENT
N.N. Mathur, J.
1. Appellants Mangya @ Mangilal, Mewa Ram @ Mewanath, Gangadhar and Ladu by the judgment of the Additional Sessions Judge No.3, Alwar dated 06.09.2000, have been convicted of offence Under Section 302/149 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500 and in default of payment to further undergo six months rigorous imprisonment. The appellants have also been convicted for offence Under Sections 147, 149 and 342 IPC. They have been separately sentenced on each count. Al the sentences have been ordered to run concurrently.
2. 16 accused persons namely Mangya @ Mangilal, Mewaram @ Mewanath, Gangadhar, Ladu, Chhitar, Ramdhan, Virju, Shishupal, Ram Kishore, Kalyan, Ramkaran, Devi Sahay, Shyonath, Isar, Kajod and Ram Karan were sent for trial on the charge of murder of one Suresh and causing injuries to PW-2 Kailash.
3. The prosecution case as disclosed during the trial is that the deceased Suresh had gone to his in-laws house in village Khanya, on 08.08.1998. On 09.08.1998. he along with his brother-in-law PW-2 Kailash went to the village kaled for purchasing bidi and match-box. While they were returning suddenly the villagers of Kaled which included Mangilal, Ishwar, Shyonath, Laduram, Gangadhar, Devi Sahay, Laduram, Kalyan Sahay, Ramkaran, Har Sahay, Virja, Nahnu, Kailash, Kalya, Bholya, Kajod, Ramkaran, Mewanath, Sahaya, Govindda, Mangilal, etc. caught-hold and took them to the village. They were tired with a tree and thrashed by legs and fist. On 10.09.1998, Kailash was released but Suresh was taken to the forest. It is alleged that in the forest he was thrashed on account of which he died. On 11.08.1998, an information of the incident was lodged by PW-11 Ramgopal at Police Station, Pratapgarh. After usual investigation police Laid chargesheet against 16 accused persons for offence Under Section 147, 149, 323, 342 and 302 IPC.
4. All the accused persons denied the charges leveled against them and claimed trial. Thee prosecution in support of the case examined 24 witnesses and produced certain documents. Analyzing the evidence the Trial court found the charges proved only against four appellants and as such convicted and sentenced them in the manner noticed above. The other accused persons have been acquitted of the charges leveled against them.
5. Assailing the conviction, it is contended by Mr. Biri Singh that a bare look at the medical evidence shows that ocular version of the incident given by the prosecution is false and fabricated. In any case, it is an exaggerated version. It is submitted that as per the postmortem report the deceased Suresh received only four injuries which are also simple in nature. It is improbable that if the incident would have taken place in the manner alleged deceased would have sustained only four simple injuries. It is submitted on this ground alone that the entire prosecution case deserves to be thrown out. In alternate, it is submitted that in view of the statement of PW-16 Dr. Raghuraj Singh none of the injuries were sufficient in ordinary course of nature to cause death, the conviction of the appellants cannot travel beyond offence Under Section 323 IPC. On the other hand, Mr. R.S. Aggarwal, learned Public Prosecutor has supported the judgment of the Trial court. It is submitted by Mr. Aggarwal that as per the medical opinion there is rupture of liver and spleen which was the direct cause of death.
6. We have scanned, scrutinised and analysed the prosecution evidence and considered the rival contentions. PW-16 Dr. Raghuraj Singh has stated that he was one of the members of the Medical Board which conducted the post mortem of the deceased Suresh. The Board noticed the following external injuries on the dead body of deceased Suresh:
(1) Lacerated wound with clotted blood blush black color muscle deep 2×2 cm on posterior surface of left elbow joint.
(2) Lacerated wound 2 x 1-1/2 cm on anterior surface of left leg with clotted blood bluish black. Anterior surface in upper 2/3rd region.
(3) Bruise blush black color 8 cm x 2-1/2 cm obliguely and lateral antero surface of right thigh with two parallel line.
(4) Abrasion 3-1 /2 x 2-1 /2 cm on left side of back at lower rib region.
He has proved the post mortem report Exhibit P-18. In his opinion all the injuries were ante-mortem in nature caused by the blunt weapon. He also opined that the cause of death was due to shock caused by injury to vital organs. PW-17 Dr. Sunil Chauhan has stated that the deceased Suresh sustained internal injuries on liver and spleen. He also stated that injuries to liver caused its rupture, i.e. laceration. He also stated that there was rupture of spleen as well. He also proved injuries on the person of PW-2 Kailash. He sustained six injuries simple in nature caused by blunt weapon. In the cross-examination he admitted that none of the injuries on the person of Suresh were sufficient in ordinary course of nature to cause death. PW 18 Dr. R.D. Meena was also one of the members of the Medical Board which conducted post mortem of deceased Suresh. He also stated that there was rupture of liver and spleen. In the cross-examination, he stated that injuries No. 1, 2 and 3 were not on vital parts of the body. Injury No.4 was not fatal.
7. The analysis of the evidence shows that the incident took place in two particles the first part pertains to assault by the villagers to deceased Suresh and injured PW-2 Kailash. The second part pertains to assault by the appellants to Suresh in the forest. As far as the first part is concerned, there is evidence of PW-2 Kailash who himself is a injured person. He has stated that he along with his brother-in-law decease Suresh had gone to village Kaled for purchasing biri and match-box. While they were returning he was called by appellants Mangia, Mewanath, Gangadhar, Laduram and absconding accused Mangiaram Khatik, Har Sahay, etc. They tied them by ropes and brought to the village Kaled. All the villagers assaulted them by lathis. On enquiry, it revealed that they suspected them thief of she-goat. On the next day, he was released, but Suresh was taken to forest by Mangilal Meena, Harshay Meena and about 10 to 20 persons. In the evening, about 4.00 PM he came to know that Suresh Meena has been killed. In the cross- examination, nothing has been elicited to discredit the testimony of this witness.
8. PW-3 Doonga the resident of village Khanya has stated that he was being informed that the villagers of village Kalad have kept Suresh under captive ont he charge of theft of a she-goat. This information was given by accused Ladya, Rameshwar and Gangadhar. On this, he along with Ramjilal, Bhooriya, Jagdish, Fuliya etc. went to the village Kaled. On reaching village Kaled, they found Suresh tied with the ropes. They charged Suresh for killing a she-goat. The charge was denied by Suresh. He also stated that Suresh was taken to the forest by the villagers. They took Suresh to the forest for recovery of the she-goat. They remained sitting in the village Kaled till evening. In the evening they were informed of the death of Suresh. Thereafter, they went to the forest and found the dead body of Suresh lying on the bank of river. In the cross-examination, he admitted that village Kaled is a locality consisting of 600 to 700 houses. The statements of PW-4 Fuliya, PW-5 Laxman, PW-6 Ramjilal, PW-7 Jagdish, PW-8 Daulat Ram are almost on the same line. PW-12 Shiya @ Shrinaryan is father-in-law of the deceased Suresh. His statement is almost in the line of PW-3 Doonga.
9. Thus, the first part of the incident stands proved to the extent that deceased Suresh and PW-2 Kailash were taken to village Kaled and thrashed by the villagers which includes the appellants. The medical evidence shows that Kailash sustained few simple injuries. If all the villagers would have assaulted deceased Suresh and PW-2 Kailash by Lathis indiscriminately as alleged, the deceased and PW-2 Kailash would not have sustained only few injuries of simple nature.
10. As regards the second incident PW-1 Bhoriya has stated that Suresh and Kailash were tied by rope in village Kaled. They were tied by accused Mangia, Mewa, Gangadhar, Ladya and other absconding accused. They were threshed by them. He also stated that accused Mangya, Gangadhar, Ladya and Mangya Khatik took the deceased Suresh towards rivers. He has also stated that Suresh was beaten by them by lathis. Shoes were also hanged around his neck. He stated that he had seen the said accused persons assaulting Suresh near the river. He however, stated that he did not disclosed this fact to anybody. This witness has been declared hostitle by prosecution. Thus, so far assault by appellants which alleged to have led to death of Suresh, there is only evidence of hostile witness PW-1 Bhoriya. The another evidence of PW-2 Kailash and other witnesses is only to the extent that deceased Suresh was taken towards the forest by villagers including appellants. Though PW-1 Bhoriya has been declared hostile, however, he has categorically stated that the appellant Mangya, Mew Ram, Gangadhar, Ladu gave beating by Lathis to deceased Suresh. There is also a circumstantial evidence to the effect that these appellants were seen taking deceased Suresh towards the river where his dead body was found. Thus, prosecution has succeeded in establishing that Suresh died of homicidal death on account of injuries caused by the appellants.
11. Having regard to the medical evidence, it appears that none of the injuries were sufficient in ordinary course of nature, neither the intention nor knowledge can be attributed to appellants that their act may cause death. It appears that the appellants and villagers only wanted to assault Suresh for committing theft of she-goat. Thus, they are liable for causing grievous hurt punishable Under Section 325 I.P.C. Deceased Suresh was thrashed by more than five persons i.e. four appellants, absconding accused Sita Ram Meena, Harsahay Meena. Thus, the conviction of appellants liable to be converted from 302/149 I.P.C. to 325/149 I.P.C. At this stage, it is submitted by the learned Public Prosecutor that in the facts and circumstances of the case, it is expedient to award compensation to the widow of the deceased under the provisions of Section 357 (3)Cr. P.C. He has relied upon the decision of the Apex Court in the case of Baldev Singh v. State of Punjab reported in 1995 Cr. L.R(SC) 713. He has also relied upon another case of Dr. Jacob George v. State of Kerala reported in 1994 Cr.L.R.(SC) 332.
12. Consequently, this appeal is partly allowed. The conviction of the appellants for offence Under Section 302/149 IPC is set aside. Instead all the appellants namely Mangya @ Mangilal, Mewa Ram @ Mewanath, Gangadhar and Ladu are convicted for offence Under Section 325/149 IPC. Their conviction and sentences for offence Under Sections 323/149, 147 and 342 IPC is maintained. The appellants are in jail for more than 2-1/2 years. Thus, the sentence of fine is kept intact. In addition to the above, we order that each of the appellants namely Mangya @ Mangilal, Mewa Ram @ Mewanath, Gangadhar and Ladu shall pay by way of compensation a sum of Rs. 2,500/- each to the widow of the victim Suresh who has suffered the irreparable loss due to the death of her husband. The amount of compensation ordered shall be deposited with the trial court within a period of three months from the date of receipt of the record along with this judgment by the trial court. The amount shall be recovered by the persons entitled as if the direction contained herein is a decree passed against them by this court. The appellants Mangya @ Mangilal, Mewa Ram @ Mewanath, Gangadhar and Ladu shall be released forthwith if not required in any other case.