JUDGMENT
Ram Nandan Thakur and S.H.S. Abidi, JJ.
1. Both these appeals arise out of the same judgment; and, therefore, they have been heard together and are being disposed of by this common judgment.
2. Appellants Ram Babu Jamadar, Sheonandan Jamadar and Ramdeo Jamadar (of Cr. A 629 of 1982) and appellant Karara Chand Jamadar (of Cr. A. 648 of 1982) have been convicted under Section 304 Part I of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life. The remaining five appellants (of Cr. A. 629 of 1982) namely, Rajendra Jamadar, Namuna Jamadar, Arjun Jamadar, Bishundayal Jamadar and Bhanu Jamadar have been convicted under Section 304 Part I read with Section 149 of Indian Penal Code and each of them has also been sentenced to undergo rigorous imprisonment for life. Appellants Arjun Jamadar and Bhanu Jamadar have been further convicted under Section 27 of the Arms Act and each of them has been sentenced to undergo rigorous imprisonment for one year. The sentences of these two appellants under different counts have been directed to run concurrently.
3. On the 18th March, 1977 at about 8 A.M., Mhahabir Jamadar, the deceased, was going to take bath on the motor pump of one Jiblal Das. On the way all these appellants, variously armed, surrounded him and he was thrown on the ground. Appellants Ram Babu, Ramdeo, Sheonandan and Karam Chand assaulted him with Kakut and others also assaulted him with Chapra and Pasa. The informant Bhagiya Devi (P.W. 7) and her son raised alarm but they were also threatened. On their alarm the witnesses came and then the appellants fled away. Subsequently, after two to three hours Mahabir Jamadar died. The informant could come to know that the chowkidar had gone to the police station. Therefore, she remained at her house.
4. P.W. 12, the officer-in-charge of Hilsa police station, came to the place of occurrence at 3.30 P.M. on the same day and recorded the statement of Bhagiya Devi, the informant, which is Exhibit 5 on the basis of which formal first information report was drawn up which is Exhibit 6. He took up the investigation of the case and after due investigation submitted charge-sheet against these appellants. Ultimately, the appellants were put on trial.
5. In course of trial, twelve witnesses were examined on behalf of the prosecution. The appellants pleaded their innocence and denied the allegation.
6. Learned Counsel appearing on behalf of the appellants while arguing the case has mainly contended that under the circumstances and on the evidence on record, an offence under Section 304 Part I of the Indian Penal Code is not made out against any of the appellants. According to him, at best the offence alleged, would come within the purview of Part II of Section 304 of the Code. He has also submitted that the sentence awarded by the trying court is too excessive.
7. After hearing learned Counsel for both sides and perusing the entire record, we are of the opinion that in the present case the prosecution has succeeded in proving its case beyond all reasonable doubt. There is sufficient evidence to come to the conclusion that appellants Ramdeo, Ram Babu, Karam Chand and Sheonandan inflicted injuries on the person of the deceased which resulted in his subsequent death. The other appellants were also present there and they had gone there with the common object that the deceased should be assaulted.
8. P.W. 9 Dr. Sheonandand Prasad had conducted the postmortem examination on the dead body of the deceased on 19th March, 1977, at 8.45 A.M. and had found the following ante-mortem injuries on his person:
(i) incised wound 6″ X 2″ X 3″ deep on the right leg back side calf region.
(ii) Incised wound 4″ x 1″ X 2″ on left leg back side.
(iii) Swelling of right elbow joint. On dissection of the wound blood clots and haematena was found. The numerous bone at Tower end found fractured.
(iv) Swelling of left elbow joint. On dissection blood clot and hecatomb found,
The left ulna found fractured–right upper end.
(v) Bruise 4″ X 2″ on back of chest.
(vi) Bruise 3″ x 2″ below injury No. (v).
(vii) Bruise 41/2″ X (sic)” back right side of chest.
In the opinion of the doctor, death was due to shock and hemorrhage as a result of the aforesaid injuries. The doctor has also said that injury Nos. (1) and (ii) were caused by sharp cutting weapon and the rest were caused by hard blunt substance. In cross-examination the doctor has said that injuries No. (i) and (ii) were not sufficient in themselves 10 cause death as blood vessels had not been cut. He has further said that independently injury Nos. (iii) to (vii) also could not cause death It would appear that the injuries were not on vital parts of the body. Some of the appellants were armed with Kakut which is a kind of instrument used for cutting fodder and some were armed with Chapra ie. spade. Though some of the appellants were armed with Chapra, still the back portion of the same was used to assault the deceased. Therefore, the trying court rightly came to the conclusion that the appellants had no intention or pre-determination to cause death and, accordingly, it did not convict them under Section 302 or Section 302/149 of the Indian Penal Code, though they were charged for that offence.
9. After considering the entire evidence and the manner in which the offence was committed, we find and hold that appellants Ram Babu Beldar, Ramdeo Beldar, Sheonandan Beldar and Karam Chand Beldar are guilty of an offence under Section 304 Part II and the rest of the appellants are guilty of an offence under Section 304 Part II read with Section 149 of the Indian Penal Code. The conviction of appellants Ram Babu Beldar, Ramdeo Beldar, Sheonandan Beldar and Karam Chand Beldar under Section 304 Part I and the conviction of the rest of the appellants under Section 304 Part I read with Section 149 of the Indian Penal Code is altered accordingly. However, the conviction of appellants Arjun Beldar and Bhonu Beldar under Section 27 of the Arms Act is maintained.
10. On the question of sentence, we are told that appellants Ram Babu Beldar and Sheonandan Beldar have remained in jail for six years, appellant Karam Chand Beldar has remained in jail for live years, appellant Ramdeo Beldar has remained in jail for two years and some months and the rest of the appellants have remained in jail for about one year. The occurrence is alleged to have taken place in the year 1977 and since then these appellants have been facing the rigors of criminal prosecution. We are, therefore, of the view that the period of imprisonment already undergone by the appellants will meet the ends of justice in the circumstances of the case. Accordingly, the appellants are sentenced to the period already undergone for the offences for which they have been convicted, as stated earlier.
11. With the above modification in the order of conviction and sentence the appeal fail and are dismissed. Appellants Ram Babu Jamadar and Sheonandan Jamadar, who are in custody, are directed to be released forthwith, if not wanted in some other case.