JUDGMENT
S.K. Jain, J.
1. Roop Ram son of Dala, Mangal son of Mohan, Hori Lal son of Ulla, Babu Ram son of Mangal, Ram Autar son of Tika Ram, all traders and resident of village Chamaranpurwa, Police Station Derapur, District Kanpur were arrested, charged and tried under Sections 147, 149, 302, 323, IPC. Accusation against them was that on 7-7-1973 at about 5.00 p.m. Sarvashri Anrugh Singh PW2, Ram Bhajan, Sheo Dayal and Ram Das were present and talking with Sarvashri Genda Lal PW3, Mewa Lal and Chhedi Lal in front of the house of Sri Krishna. Smt. Ram Dulari, mother of Ram Shankar, the complainant arrived there carrying two buckets and a rope in order to carry water from the well of Mangal accused which was also situated in front of his house. All the accused persons armed with lathies were present there. Mangal asked Smt. Ram Dulari not to draw water from the well. At the same time, all the accused persons started abusing her! Babu Ram accused threw away her buckets. On the exhortation of Mangal, Roop Ram accused dealt a lathi blow on her person whereas Hori Lal gave a kick blow in her abdomen. When her son Ram Shankar PW 1 tried to save her, he was also given a lathi blow by Ram Autar accused.Other persons present there did not intervene because the accused had threatened to give a thrashing to the person who tried to intervene. Thereafter the accused ran away from the spot along with their respective weapon. Smt. Ram Dulari died on the spot.
2. In order to prove its case prosecution examined the complainant and injured eye-witness. Ram Shankar PW 1 who was corroborated by other two eye-witnesses Anrugh Singh and Genda Lal. Dr. J.S. Lakhera who conducted post-mortem examination on the dead body of Ram Dulari and Dr. H.C. Mathur who had medico-lcgally examined Ram Shankar were examined as PW6 and PW4 res pectively. Prem Chandra, Company Commander. PAC, Fatehpur who was posted as ASI, Derapur Police Station at the relevant time and had investi- gated the case stepped in the witness box as PW 7. He has proved various steps that he took in the progress of the investigation. PW 8 Shyam Sunder Srivastava. Clerk of Deputy C.M.O. Office, Kanpur and Constable Bachani Lal PW 9 were examined on affidavits as their evidence was of formal nature and the learned public prosecutor had no objection in their being so examined.
3. The learned trial court believed the ocular account given by three eye-witnesses corroborated by medical evidence and convicted and sentenced the accused as under :-
(i) Accused Roop Ram, Hori Lal. Mangal. Babu Lal and Ram Autar were convicted under Section 302 read with Section 149, IPC and sentenced to undergo life imprisonment.
(ii) All of them were also convicted under Section 323 read with Section 149, IPC and sentenced to R.I. for one year each. It is above said judgment of conviction and order of sentence, both dated 7-8-1977, passed by II Addl. Sessions Judge, Non-Metropolitan Area. Kanpur which has been challenged in this criminal appeal by the convict appellants.
4. We have heard the learned counsel for the parties and with their help have gone through the evidence on record.
5. The prosecution story that has emerged from the statements of three eye-witnesses that Smt. Ram Dulari, mother of Ram Shankar PW 1 was quick with a child (8 months pregnancy) and in order to fetch water, she reached the well of Mangal accused carrying two empty buckets and a rope, at about 5 p.m. on 7-7-1973 in the abadi of village Chamaran purwa. At that time all the accused persons, armed with lathis, were standing in front of the house of Mangal accused near well. Seeing her, they started abusing. Babu Ram accused threw away her buckets in from the parapet of the well: On the exhortation of Mangal. Roop Ram accused dealt a lathi blow on her person. Hori Lal accused kicked her in her abdomen. Ram Shankar, PW 1 when stepped forward to rescue his mother, Ram Autar accused dealt lathi blow on his person. None else could dare to intervene as the accused had threatened to give thrashing to the person who tried to do so. Smt. Ram Dulari died on the spot. Medical evidence comprised of testimony of PW4 Dr. H. C. Mathur and PW6 Dr. J. S. Lakhera has fully corroborated the ocular account given by the eye witnesses.
6. Dr. J. S. Lakhera. PW6 had conducted post mortem examination on the dead body of Ram Dulari at 3.45 p.m. on 9-7-73 in K.P.M. Hospital, Kanpur and found the following injuries on it: –
1. Contusion 41/2″ x 21/2″ on the head Just above the left ear.
2. Lacerated wound 1/4″ x 1/10″ x bone deep on the head 1/2″ above the left ear.
3. Lacerated wound 1/2″ x 11/2″ x bone deep 21/2″ above injury No. 2.
4. Lacerated wound 1/2″ x 1/10″ x bone deep in front of injury No. 3.
5. An abrasion 11/2″ x 3/4″ on the middle of the forehead.
6. Contusion 21/2″ x 1/4″ behind the right ear.
7. Contusion 4″ x 1 “on the right side of the head 3” above the right ear.
8. Contusion 21/2″x 1/2″ x 1/4″ above the right eye brow on its outer side.
The doctor further found as under:–
1. Frontal and parital bones fractured.
2. The brain matter had been liquified and was visible.
3. There was reddish discharge from the vagina.
4. There was 9 months’ old female, foetus in the uterus, besides clotted blood.
5. Clotted blood under the brain and membranes of the foetus present.
The autopsy surgeon opined :–
(i) that the cause of death was due to shock and haemorrhage as a result of injuries;
(ii) that death of Smt. Ram Dulari could be caused due to cumulative effect of the injuries;
(iii)that the death of foetus in the womb of Ram Dulari could be caused due to injury on the abdomen of Ram Dulari which was caused by kick blow; and
(iv)that the injuries could be caused at 5 p.m. on 7-7-1973.
7. PW4 Dr. H. C. Mathur had medico-legally examined Ram Shankar PW 1 at 6 p.m. on 8-7-73 and found the following injuries on his person;
1. Contusion 5 cm. x 0.7 cm. x skin deep on the right side of the head, 14 cm. above the root of the right ear.
2. Abrasion 1.5 cm. x 1 cm. on the left side on the neck, 6 cm. above the middle of the left clevicle.
8. The doctor opined that injury No. I had beeji caused by blunt weapon whereas injury No. 2 By friction and that both the injuries could have been caused at 5 p.m. on 7-7-73.
9. The learned counsel for the appellant has firstly argued that the accused had no motive either to cause injury on the person of PW I Ram Shankar or to cause death of Smt. Ram Dulari and that the accused who are members of the same family have been roped in falsely on account of enmity. Our attention has beethdrawn towards the statement of Ram Shankar who has admitted that relations between the parties were strained for the last two years and further that about a fort-night prior to the date of occurrence, a quarrel had taken place wherein Hori Lal accused had received injuries. He had lodged an FIR in the police station against him. It has therefore, been urged that the said quarrel, resulting in the lodging of F.I.R., supplies immediate motive to the complainant party to falsely implicate the accused persons. We are not impressed by this argument. Even if the relations between the parties were strained we cannot accustom our minds to a thought that the accused would let the real assailants of their deceased mother go scot-free and instead falsely rope in the accused party in order to avenge their minor grievance. Besides this, the testimony of the three eye-witnesses, including that of Ram Shankar who is stamped witness, has not been successfully assailed. Close scrutiny of their evidence would show that they have consistently stated that the accused Roop Ram had dealt a lathi blow on her person whereas Hori Lal gave a kick blow in her abdomen and that she had died on the spot. He has further deposed that when Roop Ram had dealt a lathi blow on the person of his mother, he had stepped forward in order to rescue her but Ram Autar dealt a lathi blow on his head. The other two eye-witnesses namely, Anrugh Singh, PW2 and Genda Lal, PW 3 have corroborated his version of all material points. Each one of them was subjected to lengthy and searching cross-examination but no dent in their testimony could be created. There is nothing against these witnesses and their testimony inspires confi dence. There is no material on record to show that either of them was in any way interested in falsely implicating the accused. Even no suggestion was put to either of these witnesses that they had any bias against any of the accused. Thus the first argument of the learned counsel for the appellants does not find favour with us.
10. Second argument of the learned counsel for the appellants is that Smt. Ram Dulari had no occasion to go to the well of accused Mangal for fetching water firstly, because she was carrying eight months pregnancy and secondly, because no Pulli was fixed on the well for pulling water with the help of a rope and bucket. This argument attractive at first sight, is, in our opinion not tenable on the sound appreciation of the evidence on record. In his cross- examination, Genda Lal, PW 3 has stated that although the well was owned by Mangal but all the residents of the village take water therefrom and that the women folk in the rural area are accustomed to carry water till the date they are expected to deliver a child. When the attention of this witness was drawn to the fact that there was a hand-pump in front of house of Chhedi Lal, he promptly replied that that hand pump was out of order and was not lifting water. In view of what has been discussed above, second argument of the learned counsel for the appellants also falls to the ground.
11. The third argument of the learned counsel for the appellants is that it is not believable that although three eye-witnesses were present on the spot yet none of them had tried to rescue the old lady. This argument is also without any force. It has been stated by the witnesses that after the accused Roop Ram had dealt a lathi blow on the person of Ram Dulari, her son Ram Shankar had stepped forward to rescue her but Ram Autar had dealt a lathi blow on the right side of her head near right ear. It has further been stated that the accused had threatened to give beating to any one whosoever tried to intervene. In view of the fact that the accused had not spared the pregnant lady and had dealt lathi blow on the head of her son who had tried to rescue her it was but natural that none of other witnesses could dare to step forward lest he might also receive injuries at the hands of the accused.
12. Fourth submission of the learned counsel for the appellants is that testimony of PW2 Anrudh Singh cannot be relied upon because he was a chance witness. We do not agree with the learned counsel for the appellants. In the opening line of his statement, he has deposed that his village was at a distance of one furlong from Chamaranpurwa where the occurrence had taken place. He had gone there in order to engage labourers and that at the relevant time was standing in front of the house of Krishna. There is nothing unnatural if this witness had gone to his neighbouring village to engage labourers at the relevant date and time. He withstood the test of cross-examination very well, and we have no reason to disbelieve his testimony.
13. Fifth argument of the learned counsel for the appellants is that it seems that Chhedi Lal, husband of Ram Dulari had given her serious beating as a result whereof she had died and that is why he was not found present in the village at the alleged time of occurrence because had he been there he would have tried to save his wife from the clutches of the accused. This argument is not tenable in the facts and circumstances of this case. Five accused persons were armed with lathis. One of them namely Roop Ram had given a lathi blow on the person of Ram Dulari whereas the other one namely, Hori Lal had kicked her in her abdomen in spite of fact that she was carrying an eight months child in her womb. They did not allow her son Ram Shankar to rescue her and when he stepped forward he was given a lathi blow on right side of his head by Ram Autar. Under these circumstances, Chhedi Lal was not expected to gather courage to save his wife at the pain of receiving lathi blows at the hands of five accused persons. It is a natural human instinct to save oneself. After the.occurrence he did not run across to police station to lodge FIR because his son had received a lathi blow on his head and on the other hand the dead body of his wife was lying there and he had to guard the same. Besides what has been stated above there is nothing on record to show either that he had any reason to give beating to his wife or had actually belaboured her. It is a matter of common knowledge that even an illiterate rustic villager would not beat his wife who was carrying an eight months’child in her womb. Cross-examination of the witnesses would show that it was suggested to Ram Shankar that some unknown persons had killed Ram Dulari during the night. Genda Lal PW3 has suggested that she was given beating by her husband. This contradictory suggestion does not in any way improve the case of the accused.
14. Sixthly, it has been argued by the learned counsel for the appellants that during the course of trial, Ram Shankar and Genda Lal had deposed that after the first blow, Ram Dulari had fallen down then she got up and started moving towards her house and was then again given beating by the accused as a result of which she fell down at some distance from the well but in the FIR the occurrence is not stated to have taken place in the above sequence. He has urged that since the blood was found lying at a little distance from the well the prosecution story has been improved at the trial. This argument is also without any force.
15. The broad features of the prosecution story as laid down in the FIR have been consistently deposed to by the PWs. There is no reason for the prosecution witnesses to have deposed differently than what they had actually seen. If the occurrence had taken place on the spot where the blood was found there was no reason for them to have stated differently. The larger perspective of a criminal trial cannot be possibly lost sight of. Usually, if not invariably, the conviction in a criminal trial rests on the direct testimony and credibility and acceptability thereof. As in the present case it is primarily the unimpeachability of the evidence of PW 1 Ram Shankar who is a stamped witness and is also the son of the deceased and PW 2 Anrudh Singh and PW 3 Genda Lal the eye witnesses, who have fully corroborated the testimony of Ram Shankar, coupled with medical evidence consisting of the statements of Dr. H. C. Mathur PW4 and Dr. J. S. Lakhera PW 6, duly supported by documentary evidence comprised of medico legal report of Ram Shankar and post-mortem report of Ram Dulari which forms the core of the prosecution case. Above said direct testimony is credible and unimpeachable and in our view is sufficient to establish the charge and a consequent conviction. It cannot be said that whole of it would lose all its value because there are minor contradictions in the statements of the witnesses which do not go to the root of the case. It must always be borne in mind that the trial of offences and their punishment is a matter of substance which turns on the weight and credibility of direct evidence.
16. The question going round right now is as to what offence the accused had committed. The learned A.G.A. has argued that the presence of the accused persons at the spot duly armed with one lathi each exhibits their intention to commit the offence of which they are charged. Smt. Ram Dulari and her son Ram Shankar were not expected to cross their way and they had sought them purposefully. In reply the learned counsel for the appellant has urged that well in question was admittedly owned by Mangal ac cused. The houses of accused Mangal, Hori Lal and Roop Ram were situated towards south of the well. Babu Ram accused being the son of Mangal was residing with him. House of Ram Autar accused was situated towards the extreme south of the well. House of Ram Autar on one hand and those of Mangal, Hori Lai, Roop Ram and Babu Ram on the other hand open on this, path leading to the well and therefore, there is nothing unusual if all the accused persons were present in the path near the well in front of their houses. He has further urged that it is a matter of common knowledge that when village folk walk out of their houses, they carry lathi in their hand which they use for various purposes in the course of agricultural operations. He has further drawn our attention towards the fact that even according to the prosecution version except Roop Ram, Hori Lal, none of the accused persons had taken part in belabouring Smt. Ram Dulari. It was only Ram Autar accused who is alleged to have given lathi blow on the head of Ram Shankar and none of his co-accused had taken part in this event.
17. We find force in the above argument of the learned counsel for the appellant. In view of the fact that the houses of accused were situated in close proximity of the well which belonged to accused Mangal and that the said houses open in a common path leading to the well, there was nothing unnatural for them to be present in the path at 5 p.m. on the fateful day of July 7,1977 as by that time they must be returning from their fields. In normal course of life, it is also customary that the village folk carry lathis with them when they walk out or return to their houses. Lathis are used for many purposes during agricultural operations and therefore, there was nothing strange if each of the five accused persons carried lathis at the relevant time. It has come in evidence that residents of the village used to take drinking water from the well in question although it belonged to Mangal accused and further that the women folks were accustomed to fetch water uptill the date they are expected to deliver a child. Therefore, there was nothing unusual if Smt. Ram Dulari went to the well of Mangal with rope and two buckets to fetch water at that hour of the day. Admittedly the relations between the parties were strained for the last two years prior to the date of occurrence and further that a fortnight prior to the date of occurrence, a quarrel had taken place wherein Hori Lai accused was injured. He had lodged FIR against Ram Shankar. Under these circumstances, it is evident that members of accused party were certainly aggrieved against the complainant and his family members. Mangal accused was naturally annoyed when he saw Smt. Ram Dulari, mother of Ram Shankar, approaching his well in order to take water. Therefore, it is but natural that he had thrown away her buckets from the parapet of his well even though all residents of village used to draw water from there. The matter did not rest here. It was Roop Ram accused who belaboured Smt. Ram Dulari which fact is exhibited from his having dealt a lathi blow on the person of Smt. Ram Dulari, as a result whereof she had fallen down. However, he did not repeat the blow but his co-accused Hori Lal entertained such hatred for the complainant and his family members that after her fall he dealt a kick blow in her abdomen even though she was pregnant and was quick with a child. Other accused persons namely Mangal, Babu Ram and Ram Autar did not in any manner take part in this part of occurrence. From the conduct of the accused it cannot be held that five accused persons had formed an unlawful assembly, the common object whereof was to commit the murder of Smt. Ram Dulari or to cause injury to her and further to cause injury to Ram Shankar. It cannot be further held that accused Roop Ram had dealt a lathi blow on the person of Smt. Ram Dulari and accused Hori Lal had dealt a kick blow on her abdomen and accused Ram Autar had dealt a lathi blow on the head of Ram Shankar in prosecution of the common object of that assembly. Therefore, the finding of the Additional Sessions Judge to the contrary cannot be sustained.
18. Ram Shankar sustained a contusion 5 cm. x 0.7 cm. x skin deep on the right side of the head. 14 cm. above the root of the right ear. He also sustained abrasion 1.5 cm. x 1 cm. on the left side of the neck, 6 cm. above the middle of the left clevicle. According to the medical opinion, injury No. 1 had been caused by blunt weapon whereas injury No. 2 was caused by friction. The prosecution witnesses have deposed that the accused Ram Autar had dealt a lathi blow on his head. The above said injuries were simple in nature. There is no material to hold that remaining four accused persons had shared common intention with Ram Autar accused to cause these injuries on the person of Ram Shankar. Therefore, Ram Autar alone is guilty of offence punishable under Section 323, IPC on this count.
19. So far as injuries caused by Roop Ram and Hori Lal on the person of Smt. Ram Dulari are concerned, it is established from the evidence on record that there was no premeditation or meeting of mind between all the accused persons prior to the occurrence. It was Roop Ram accused who took to his head to deal a lathi blow on the person of Smt. Ram Dulari as a result whereof she had fellen down. Five injuries which were found on the dead body of Smt. Ram Dulari have been detailed in the earlier part of this judgment while discussing the testimony of autopsy surgeon Dr. J. S. Lakhera, PW 6. In his cross-examination, the autopsy surgeon has stated that parital, frontal and temporal bones were frac tured and death was caused due to these injuries. On further cross-examination, he had stated that cause of death would be cumulative effect of all the injuries.Injury is always proportionate to the intention of the person causing that injury. The very fact that frontal, parital and temporal bones had fractured exhibits that accused Roop Ram had given a violent blow with lathi and, therefore, it can certainly be said that he intended to cause that injury which was sufficient to cause death in ordinary course of events. He was liable to be convicted under Section 304 Part II, IPC.
20. Now on to the injury caused by accused Hori Lal on the abdomen of Smt. Ram Dulari. He had seen his co-accused Roop Ram having caused lathi blow on her head as a result whereof she had fallen. He must be knowing and otherwise also from the external appearance of the lady he must have noticed that she was carrying pregnancy in an advanced stage. There fore, while he gave a kick blow on her abdomen it can certainly be inferred that he intended to cause that injury which was sufficient to cause the death of the lady as well as that of the foetus in her womb. He was, therefore, certainly liable to be convicted under Section 302(304?) Part II, IPC.
21. The conviction of accused Mangal and Babu Ram under Section 302 read with Section 149, IPC and Section 323 read with Section 149, IPC is set aside. They are acquitted of both the charges. They are on bail. Their bail bonds are discharged.
22. The conviction of Ram Autar under Section 302 read with Section 149, IPC is set aside and he is acquitted of the charge. His conviction under Section 323 read with Section 149, IPC is however altered to Section 323, IPC and he is sentenced to undergo R.I. for the period already undergone.
23. The conviction of accused Roop Ram and that of Hori Lal under Section 302 read with Section 149. IPC is converted to Section 304 Part II, IPC and each one of them is sentenced to R.I. for five years. Accused Roop Ram and Hori Lal are on bail. Their bail bonds are cancelled. They be taken into custody forthwith and lodged in prison to serve the sentence. The impugned judgment of the conviction and order of sentence are modified accordingly. Appeal partly accepted.