JUDGMENT
Fakhruddin, J.
1. Appellants have preferred this appeal against their convictions and sentences passed by the First Additional Sessions Judge, Sehore, in Sessions Trial No. 65/83, decided on 31-8-1989.
2. Appellant Premnarayan was convicted under Section 326 of the I.P.C. and sentenced to undergo rigorous imprisonment for two years and a fine of
Rs. 1,000.00. He has also been convicted under Section 325/34 of the I.P.C. and sentenced to undergo R.I. for one year and pay a fine of Rs. 200.00. Appellant No. 2 Gangaram has been convicted under Sections 326/34 of the I.P.C. and sentenced to undergo R.I. for two years and fine of Rs. 1,000.00. He has also been convicted under Section 325 I.P.C. and sentenced to undergo R.I. for one year and fine of Rs. 200.00. Appellant No. 3 Gajraj Singh and appellant No. 4 Dulichand each has been convicted under Section 326/34 of the I.P.C. and sentenced to undergo R.I. for two years and fine of Rs. 1,000.00. Each of them has also been convicted under Section 325/34 of the I.P.C. and sentenced to undergo R.I. for one year and fine of Rs. 200.00. All the sentences have been made to run concurrently. In default of payment of fine of Rs. 1,000.00 and Rs. 200.00, each of the appellants has been sentenced to undergo simple imprisonment for four months and one month respectively.
3. Briefly stated, the prosecution case is that Ramprasad (P.W. 1) had married his daughter Sugan to accused Gangaram about 5 years prior to 30-10-1982. 3 or 4 months prior to the date of incident, in the month of Aashadh, Sugan was sent with accused Gangaram after performing Gauna ceremony. Thereafter Ramprasad had gone to bring back Sugan, but the accused persons did not send her. Thereafter, about a month prior to the date of incident, Ramprasad got a search warrant issued from Shujalpur Court and he along with police, went to village Siradi, but Sugan was not found there. As such, the warrant could not be executed. On 29-10-82, Ramprasad and Kailash Singh went to village Siradi in search of Sugan. Kailash Singh has relations at village Sirodi. Kailash Singh and Ramprasad stayed at the house of Shyamlal at Siradi. It is alleged that on 30-10-82, when Ramprasad and Kailash Singh were returning from Siradi in the evening at about 6 p.m., at a distance of about half a mile from village Siradi, they met accused Premnarayan and Dulichand armed with Farsi, Gangaram armed with Lohangi and Gajraj with Lathi. It is alleged that Ramprasad dealt lathi blows on the back and right hand of Ramprasad. Accused Gangaram also dealt a Lohangi blow on him. Kailash Singh tried to pacify, but Premnarayan and Dulichand inflicted Farsi and Lohangi blows on his hand and forehead of Kailash Singh (P.W. 2). Thereafter Ramprasad and Kailash Singh (P.W. 2) went to Khajuri Bungalow, boarded a bus and went to Sehore railway station and there narrated about the incident to Jagdish and Shahjad. From there, they went to Shujalpur. At Shujalpur which is at a distance of about 70 kilometres from the place of incident, Ramprasad lodged a report at 11.10 in the night which is Ex. P-1.
4. The crime was registered at Shujalpur police station at 0/82 Hrs., but the papers were sent to Doraha police station, since the place of incident happened to be under the jurisdiction of Doraha police station, Distt. Sehore.
5. Ramprasad and Kailash Singh were sent for medical examination for the injuries on their person from police station Shujalpur to Shujalpur hospital where Dr. A.A. Abbasi (P.W. 8) examined them and found the injuries mentioned in the report Ex. P-16, relating to Ramprasad and Ex. P-27 relating to Kailash Singh. Kailash Singh was advised X-ray for the injuries sustained by him, and was sent to an Eye Specialist for his injury on the eye.
6. From the report dated 31-10-1982 of P.S. Doraha, Crime No. 150/82 was registered at police station Shujalpur and R.K. Puri (P.W. 5), Station House Officer, started investigation from 1-11-82, arrested all the four accused and seized the Lohangi and Farsi from them. After completion of investigation, he filed challan against the accused persons under Sections 307/326 of the I.P.C.
7. During investigation of the crime, the accused persons also submitted a report Ex. D-5-C about their version of the incident.
8. Appellants abjured their guilt and contended that they have been falsely implicated. They examined Dr. K.P. Yadav (D.W. 1) to contend that in the incident, they had also received injuries.
9. Learned Trial Judge, on the material on record, convicted the appellants as stated above. Aggrieved against their convictions and sentences, they have preferred this appeal.
10. Since Kailash Singh (P.W. 2) had lost vision of his right eye and an artificial eye was transplanted, the learned Sessions Judge has awarded Rs. 2,000.00 to Kailash Singh (P.W. 2) as compensation under Section 357 of the Cr.P. Code.
11. Shri Deoras, learned counsel for the appellants contended that the convictions recorded by the Sessions Court is illegal and contrary to law. It was further submitted that there is no clear, cogent and trustworthy evidence on record to sustain the convictions. Convictions were also challenged on the ground that the injuries sustained by the accused persons, viz. Dulichand, Premnarayan and Gangaram have not been explained. It was also contended that apart from non-explanation of the injuries, evidence on record suggests that the accused acted in their right of private defence as the complainant party was the aggressor.
12. Shri Wakeel Khan, learned counsel appearing for the State supported the findings recorded by the learned Sessions Judge. He contended that the evidence of Ramprasad (P.W. 1) and Kailash Singh (P.W. 2) is reliable and corroborated by medical evidence on record, which has also been proved by Dr. A.A. Abbasi (P.W. 8) and Dr. K.C. Tiwari (P.W. 9).
13. In view of the rival contentions raised by learned counsel for parties. I have perused the record of the case carefully. Evidence of Ramprasad (P.W. 1) and Kailash Singh (P.W. 2) has been read exhaustively by learned counsel for parties.
14. Ramprasad (P.W. 1) is the person whose daughter Sagun has been married to Gangaram. It is also not disputed that she was brought by Gangaram to village Siradi; she was not sent after Gauna. Ramprasad (P.W. 1), in para 3 of his statement, has stated that when his daughter was not sent, he got a search warrant issued from Shujalpur Court for her production. Pursuant to the search warrant, police went to the house of the accused, the girl could not be traced there and the warrant could not be executed. 15 or 20 days later, he had gone to village Siradi and met Kailash who has his relation Shyamlal at Siradi.
15. The fact which cannot be lost sight of is that after Gauna, Sugan was not sent. Ramprasad (P.W. 1) had to resort to legal proceedings, he approached the Court which issued the search warrant, but the girl was not found and the warrant could not be executed. As an unfortunate father, he had to take care of his daughter and to know her whereabouts. It was but natural for him to contact a man who had some relations there. Ramprasad and Kailash thus went in search of the girl. It was on 30-10-82 that while they were returning, the incident had occurred.
16. In para 3, Ramprasad (P.W. 1) has stated that while they started from Shyamlal’s house, the accused persons met Gangaram near the well. Accused Gangaram had a Lohangi and accused Gajraj had a lathi. Gangaram called out his father-in-law Ramprasad as ^^vkvks ekFks**, the form of address by a son-in-law to his father-in-law, which is prevalent in their community. On this call, Ramprasad (P.W. 1) went near Gangaram. Kailash Singh was 40 to 50 feet behind. As soon as Ramprasad went near Gangaram, Gajraj inflicted a lathi blow on his hand. Accused Gangaram had a Lohangi with which he inflicted a blow on his right hand. Kailash Singh came to rescue him, but Premnarayan and Dulichand, armed with Farsi in their hands, came there and dealt Farsi blow on the right eye of Kailash. Accused Dulichand had dealt a Farsi blow on the head of Kailash. Thereafter, these two left the place. After boarding a bus from Khajuria Bungalow, they came to Sehore. On the railway platform of railway station Sehore, they met Jaggu and Shahjad to whom they narrated about the incident. Thereafter Jaggu and Shahjad took Ramprasad and Kailash to Shujalpur by train, where he lodged the report Ex. P-1.
17. In cross-examination, para 10, the witness has stated that there is a criminal case pending in Court against him, Kailash and Yusuf Khan. Para 11 relates to their reaching village Siradi and Para 12 relates to search of his daughter. Para 13 relates to short stay at Shyamlal’s house. Para 14 relates to talk of Kailash.
18. Shri Deoras, learned counsel for the appellants, referred to para 15 of the cross-examination where the witness was confronted with his statement Ex. P-1, portion A to A. It is stated that Premnarayan, Dulichand, Gangaram and Gajraj son of Anandilal had come duly armed with stick and Farsi. He has denied having told like this. He stated that initially Gangaram and Gajraj had come and two accused had come subsequently. Para 16 has also been read to show the omission regarding Premnarayan and Dulichand hiding.
19. Paras 17 and 18 have also been read. Specific stress has been placed on paras 22, 23 and 24 where he had been asked whether he had seen any injury on the person of the accused. He stated that he had not seen any injuries. He was asked as to how these injuries were caused to which he pleaded ignorance.
20. The evidence of Kailash Singh (P.W. 2) has also been read. In para 2, the witness has stated that next day, they left Siradi for village Narola at 6 p.m. On the way lies the well of the accused persons. The accused persons called Ramprasad who went near them and the witness Kailash remained standing at a distance of about 40 to 45′. As soon as Ramprasad (P.W. 1) reached near the accused, accused Gangaram dealt a Lohangi blow on his hand. Accused Gajraj dealt a stick blow on his back. In para 3, the witness has stated that he went to rescue Ramprasad, but as soon as he went near him, accused Gangaram dealt a Lohangi blow on his head. Then accused Dulichand dealt a Farsi blow on his head. Then accused Premnarayan dealt a Farsi blow on his eye. The injuries resulted in bleeding. Thereafter they came on the Khajuria Bungalow road from where they went to Sehore.
21. The witness was cross-examined at length. In para 6, he has stated that he had not seen any injuries on the person of Premnarayan, Dulichand and Gangaram and that if there were any injuries on their person, they might have been caused by marpeet among themselves. Regarding search of the girl, he was questioned with respect to his statement Ex. D-2.
22. In spite of searching cross-examination, defence has not been able to demolish it.
23. Though the learned Trial Judge has considered the evidence of these two witnesses in great details and has found them reliable, this Court has also considered their evidence and finds that the evidence of Ramprasad (P.W. 1) and Kailash Singh (P.W. 2) is clear, cogent and trustworthy. Ramprasad had taken recourse to legal proceedings and had gone with search warrant which could not be executed. After 15 or 20 days, he again went in search of his daughter with Kailash (P.W. 2), but they were beaten.
24. Learned counsel for the appellants contended that initially there were two accused, i.e. Gangaram and Gajraj, but Premnarayan and Dulichand came there subsequently. The place of occurrence, as stated, is near the well. Being unsuccessful in tracing his daughter when Ramprasad was returning along with Kailash Singh (P.W. 2), the prosecution story, as it emerges, is that it was Gangaram, his son-in-law, who called Ramprasad as ^^vkvks ekFks** as is the practice prevalent in that area upon which Ramprasad, the father-in-law of Gangaram, went near him, but instead of greeting his father-in-law, he beat him. Gajraj, Premnarayan and Dulichand also joined in the beating.
25. Learned counsel seriously contended that it is not a case of common intention. In the facts and circumstances of the case, it is borne out that all these 4 accused were near the well and as soon as Ramprasad and Kailash Singh came near the well, each of the accused participated in the beating. They shared the common intention. Common intention may develop at the moment. The intention is apparent. In para 3 of his statement, Dr. Abbasi (P.W. 8) has stated that injury No. 1 on the frontal bone and right eye of Kailash Singh (P.W. 2) was sufficient in the ordinary course of nature to cause death. Injuries 2, 3 and 4 were simple in nature. Ex. P-17 is his report. He had found 4 injuries on the person of Ramprasad and Ex. P-16 is his report.
26. Dr. K.C. Tiwari (P.W. 9) had examined Ramprasad (P.W. 1) on 31-10-82. On X-ray, he found fracture on the lower portion of ulna. Ex. P-19 is his report.
27. Learned counsel for the appellants contended that the injuries have not been explained. Reliance has been placed on A.I.R. 1989 S.C. 1097 (The State of Assam v. Bhelu Sheikh and Ors.). The injuries in this case were minor. When the Investigating Officer came, the incident had occurred on 30-10-82. The accused persons did not lodge any report, but on 1-11-82, they handed over the report to the Investigating Officer. They themselves did not disclose about the injuries to anyone for two days. The injuries were simple. According to the prosecution, the incident had occurred at about 5 or 6 O’clock in October 1982. Ramprasad (P.W. 1) was asked and he said that he did not know. Kailash Singh (P.W. 2) had lost his eye. He was also questioned and he said that he did not know. It is not that every injury has to be explained, but the explanation which has come is that they may have been received. The injuries were not on vital parts of the body which could be visible with naked eye. Ramprasad and Kailash had received serious injuries in which Kailash lost his eye. After receiving beating at the hands of the accused, it was natural for them to run away from the spot to save their lives. Faced with this situation simply because they are not able to pointedly tell about the injuries of the accused, their version cannot be disbelieved. This Court is satisfied that they are truthful and reliable witnesses.
28. Having considered the evidence of Ramprasad (P.W. 1) and Kailash Singh (P.W. 2), together with the evidence of Dr. Abbasi (P.W. 8) and Dr. K.C. Tiwari (P.W. 9), I find that there is no infirmity in the convictions and sentences passed against the accused. In fact, offence under Section 326 of the I.P.C. is punishable with imprisonment for life. The sentence awarded are on the lower side. Long pendency of proceedings is not an extenuating factor. (AIR 2000 SC 2854, State of Andhra Pradesh v. Polamala Raju alias Rajaran). The convictions and sentences are well merited and call for no interference.
29. The appeal fails and is dismissed. The accused are on bail. They should surrender to their bail to serve out the sentence.