JUDGMENT
Prakash Tatia, J.
1. This appeal challenging the conviction and sentence of the appellants is preferred against judgment dated 18.10.2002 passed in Sessions Case No. 76/2001 by the court of Additional Sessions Judge (Fast Track), Balotra. The conviction and sentence of the appellants is as under:
1. Accused appellant Narayan has been convicted for the offences under under Sections 148, 449, 323, 324/ 149 and 302 IPC and other accused appellants are found guilty of offences under Sections 148, 449, 323, 324/149 and 302/149 IPC and sentenced all.
2. Under Section 302 IPC accused appellant Narayan has been convicted to sentence of Life imprisonment with fine of Rs. 1000/- in default to undergo two months R.I.
3. Under Section 302/149 IPC, other appellants have been convicted to life imprisonment and fine of Rs. 1000/- in default to undergo two months R.I.
4. For offence uner Section 148 IPC, each of the accused has been sentenced to one years R.I. and a fine of Rs. 500/- in default to further undergo one months S.I.
5. For offence under Section 323 IPC, each of the accused has been sentenced to six months S.I. and fine of Rs. 200/- each in default to further undergo ten days S.I.
6. For offence under Section 324/149 IPC, each of the accused has been sentenced to one years R.I. and fine of Rs. 500/-, in default to further undergone one month’s S.I.
7. For offence under Section 449 IPC, each of the accused has been sentenced to Ten years R.I. and a fine of Rs. 1000/- in default to further undergo two months R.I.
2. The relevant facts alleged as per prosecution, appears to be somewhat like this ; that on 28.04.2001 at about 7:45 AM in the morning, someone from village Ramsin, not disclosing his identity informed on telephone to P.S. Balotra that in the village has occurred an armed quarrel and few injured are being taken to hospital and some injured are waiting for means. The information was recorded in Roznamcha entry No. 1533 Ex.P/70 as per which SHO alongwith constables headed for Government hospital, Balotra where at 11 AM, one Dharma Ram handed over a written report Ex.P/2 to S.H.O. Balotra which narrated that on last “Teej” his son Joga had some quarrel with Om Prakash and Hariya who then came to his house and threatened them. In the morning of this day at about 7:15 AM, when the complainant, his wife Chandra and sons Joga, Prithvi raj and Pukhraj were at home, the appellant accused Oma and Hariya came at the door of their house and challenged them (complainant family) but the complainant and his family members did not respond or come out. Then, Hariya, Narayan and Duda armed with axes, Oma having hockey stick and wives of Duda and Narayan and Kalia having lathis and also Giga Meghwal came in the compound of complainants’ house and began severe beating. Narayan inflicted a axe blow on head and Dudia at the forehead of Joga and rest of accused inflicted several injuries to Joga, Pukhraj, Prithviraj and his wife. One Hariya S/o Biram Meghwal tried to intervene. On the basis of this complaint, F.I.R. No. 122/01 registered at P.S. Balotra for the offences of Sections 147, 148, 149, 452, 341, 323 and 307 IPC. The injury reports of Joga, Pukhraj, Prithviraj and Dharma Ram are respectively Ex.P/3, Ex.P/5, Ex.P/6 and Ex.P/7. Injured Joga Ram was referred to Government hospital who died on the same day The memos of dead body prepared by I.O. are Ex.P/25 and Ex.P/40 and postmortem report is Ex.P/68 and accordingly, offence of Section 302 IPC added.
3. During investigation, as per prosecution and memos prepared, on the same day at about 4 PM, Investigating Officer inspected the place of incident, memo of which is Ex.P/2 and at the spot i.e house of the complainant, found blood on floor and iron gate of Bada, samples of plane soil and of blood on floor and gate taken and sealed- packets marked A& B. Blood stained clothes of Joga Ram pant and shirt seized and sealed packet marked X memo of which is Ex.P/41.
4. Accused Ishwar lal arrested on 28.04.2001 at 9:45 PM on whose information lathi was recovered from “Kanto ka bada” on 01.05.2001, memos of which are Ex.12, 13, 14 & 19.
5. Accused Kalu arrested on the same day i.e. 28.04.2001 at 10:15 night, on whose information Ex.P/73, recovery of lathi was made from the sand of his bada seized and sealed packet marked E, the memos are Ex.P,20, 73, 15 & 16. Accused Hari Ram also arrested on 28.04.2001 at 9:15 night, on whose information, an axe with blood stains and lying with waste material in bada recovered, sealed packet marked C and respective memos are Ex.P/78, 71, 11 & 12. The blood stained shirt and dhoti of Dharma Ram seized on 03.05.2001, memo of which is Ex.P/43 and packet marked W.
6. Accused Om Prakash arrested on 10.05.2001, on whose information a hockey recovered and sealed packet marked D, memos of which are Ex.P/21, 64, 35 & 36. Accused Smt. Bhagwati arrested on 10.05.2001 on whose information, lathi is said to be recovered which was sealed in packet marked H and respective memos are Ex.P/22, 75, 24 & 37. Accused Duda Ram arrested on 10.05.2001 on whose information an axe with blood stains recovered from soil of bad of “Bada” seized, sealed packet marked G and respective memos are Ex. P/23, 76, 38 & 39. Accused Narayan arrested on 18.05.2001 and asper his information, axe with some blood stains recovered from the sand lying in the bada, sealed packet of which is marked J and respective memo are 17, 78, 44 & 45.
7. Accused Giga arrested on 15.05.2001, on whose information recovery of blood stained lathi made from the sand in bada, sealed packet of which is marked I and memos are Ex.P8, 77, 9 & 10.
8. All the clothes and seized articles were deposited in malkhana of P.S., entries of which in malkhana register are Ex.P28 to Ex.P/34 and sent to FSL with forwarding letter Ex.P/26, receipt of FSL is Ex.P/27 and examination report Ex.P/79 – according to which all the articles except the control (plane) soil, found to be containing human blood and hockey stick, both axes, pant and shirt (of deceased) had B group blood- blood group of rest could not be ascertained.
9. The accused appellants pleaded not guilty. Prosecution examined 35 witnesses of which PW/1 is the complainant injured, Prithviraj PW/2 and Pukhraj PW/3 are his sons who also are injured and Smt. Chandra PW/30 is wife of the complainant and all have supported prosecution case narrating the incident as above. Hariya PW/5 named eye-witness is declared hostile. Dr. Hanuman Ram Akodia PW/4 and Dr. R.L. Khatri PW/6 examined the injured persons who have proved the injuries and injury reports and Dr.M.P. Joshi PW/28 is one of the members of medical Board who have proved the Postmortem report Ex.P/68 and its contents whereas, Joga Ram PW/26 is X-ray technician. Head constable PW/31 on receipt of complaint Ex.P/1, which was forwarded from hospital by SHO, registered FIR No. 122/01 Ex.P/69. Anil Kumar,S.I examined the dead body and seized clothes of deceased- respective memos are Ex.P23, 40, 41 to 47. Head constables PW/18 & 19 and constables PW/25, PW/29 pertains to malkhana and delivering articles at FSL whereas PW/34 is the photographer. All the other witnesses except S.H.O. Bhupendra Singh PW/35 are said to be motbirs of the recoveries, many of them declared hostile. Investigation, seizure recovery etc are effected by S.H.O. Bhupendra Kumar PW/35 who stated accordingly and exhibited memos.
10. The accused appellants in examination under Section 313 Cr.P.C. stated that prosecution witnesses are telling lie. As per appellant Narayan, deceased Joga Ram was challenging appellants Om Prakash and Hari Ram and was after them for beating and on hearing shouts, when he (Narayan) came out, Joga Ram, Pukhraj, Prithviraj gheraoed and caused injuries of axe on his head and other parts, when his wife Bhagwati tried to intervene and protect him, all these four accused persons carried him (Narayan) to their bada where wife Bhagwati tried to protect him, blow of axe was inflicted on her head. When appeallants Om Prakash, Giga Ram, Duda Ram, Hariya came to save them, they too were beaten, case of which registered at Police station. Appellants Smt. Bhagwati, Giga Ram, Om Prakash and Hari Ram also stated accordingly and as per appellant Ishwar lal he, when informed about injuries to Narayan and others, went to hospital and appellants told him as above. No defence witness preferred.
11. Arguments of the learned Counsel for the accused appellants and learned Public Prosecutor heard and carefully perused the record. Learned Counsel for the appellant accused vehemently argued that ;
(i) Injuries on as many as five appellants were caused on the same day at same time which are not explained and injuries to two are grievous one. Narayan also had a significant injury of sharp weapon.
(ii) How and for what reason and from where the incident began is not disclosed and whatever is disclosed is not worth acceptance- and thus, the genesis and origin of the dispute is not rightly put forward.
(iii) The appellant Narayan was dragged for beating and substantial injuries caused to him by the complainant and his sons in their house.
(iv) No independent witness and not even the neighbours, though residing in neighbourhood is among the prosecution witnesses.
(v) The so called alleged recoveries are very belated.
(vi) The injuries on the person of accused appellants are not explained and even it is denied that appellants had injuries.
(vii) As per the injury report of Joga Ram, he had five injuries whereas, as per postmortem report Joga Ram had twelve injuries.
(viii) The appellant Ishwar lal is not even named in the F.I.R. and some cases against Joga Ram deceased were already pending, who is known to be of bad character and all the four witnesses who are father, mother and brothers of deceased have narrated the incident in very consistent parrot like terms , which is not trustworthy.
(ix) Lastly, taking the best case of prosecution, the conviction can best be under Section 326 or Part II of Section 304 IPC for one appellant. It is specifically stated that right of private defence of person or property is not the defence of the appellant. In support of contentions, reliance placed by learned Counsel for appellants on following citations which perused with respect:
(i) 1996 Cr.L.R. (SC) 684 Periasami and Anr. v. State of Tamil Nadu- Principles of burden of proof on prosecution and on the accused under Section 105 Evidence Act explained. On the facts of the case, held that where eye-witnesses are unable to narrate the genesis, possibility of quarrel is not ruled out plea of right of private defence not maintainable and where no conflict is between testimony of eye-witnesses and medical evidence -(It appears that allegedly three injuries inflicted but on postmortem one substantial injury found) – deceased and key witnesses could not say how the quarrel began- held conviction can be and in the circumstances, the conviction under Section 302/34 IPC modified to 304-I/34 IPC.
(ii) Sarwan Singh Rattan Singh v. State of Punjab
(iii) 1993 Supp (1) SCC 561 Ram Milan and Ors. v. State of U.P. Acquittal by trial court for Section 307, 148, 149 etc. In appeal five convicted and sentenced for Section 326, 134, 148, 149 , 324 IPC etc. Serious injuries suffered by four of accused- on facts acquitted.
(iv) 1976 SCC (Cri) 671 Lakshmi Singh and Ors. v. State of Bihar On appreciation of evidence, when prosecution fails to explain injuries to accused, in such cases injuries assume importance but where evidence is clear, cogent and credit worthy, – it outweighs the non- explanation of injuries by prosecution. Where truth and falsehood are inextricably mixed, the entire prosecution case may be rejected- established factors of case mentioned.
(v) 1971 SCC (cri.) 671 The State of Bihar v. Mohammad Khursheed.
12. Learned Public Prosecutor vehemently argued that the incident occurred at the complainant’s house and injuries caused by all the accused- the son of the complainant died and others injured, so, the only inference can be that the accused were the aggressors and if some of the witnesses denied or stated ignorance of injuries received by accused, then it is not of any significance. Learned Public Prosecutor placed reliance on the judgments of Hon’ble Supreme Court in (i) Anil Kumar v. State of U.P. 2004 (2) WLC (SC) criminal (ii) Takharji Hiraji v. Thakore Kubersing Chamansing and Ors. (iii) State of Rajasthan v. Kishore wherein, it was held that mere fact that if investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast (brushed) aside to record acquittal on that account.
13. At the very outset and looking to the rival contentions and alleged facts, it would be worthwhile to mention the injuries caused to deceased and other injured including some appellant accused which stands proved. As per the medical evidence and injury reports exhibited and proved all the injuries are examined by Dr. Akodia PW/4 or Dr. R.L. Khatri PW/6 who were Medical officers cum Medical jurists at Government Hospital, Balotra on 28.04.2001 and examination was made between 8 AM and 10 AM on 28.04.2001. No grievous injury is caused to Prithvi Raj and Pukhraj as per X-Ray reports Ex. P/40 to Ex.P/65 and Ex.P/11 to Ex.P/27.
14. As per Postmortem report (Ex.P/68) injuries of deceased Joga Ram were as under:
1. Stitched wound 9.5 cm, lft front parital region near midline.
2. Lacerated wound 3.5 cm x 0.5 cm scalp deep, rt parital region near midline
3. Stitched wound 6.0 cm, obliquely rt side of forehead.
4. Stitched wound 4.0 cm obliquely left forearm post lateraly, just below elbow joint.
5. Stitched wound 1.2 cm, obliquely left forearm.
6. Stitched wound 3.0 cm, obliquely left thigh.
7. Abrasions (i) 2.0 cm x 1.0 cm left forearm
(ii) 4.0 cm x 2.0 cm right arm lower.
(iii) 1.5 cm x 0.8 cm, rt arm.
(iv) 1.0 cm x 0.5 cm right wrist joint
(v) Two abrasions 0.8 cm x 0.5 cm on the right hand ear middle finger.
All the above injuries antemortem and reason of death being head injury.
The injuries of Joga Ram as per injury report Ex.P/3-
Incised wound (i) 7.0 cm x 4.0 cm on head brain matter coming out
(ii) 4 cm x 3 cm bone deed, left forearm upper part
(iii) 4.0 cm x 2.0 cm bone deep on scalp
Lacerated wound 3 cm x 1 cm x 0.5cm Front of left thigh lower part Lacerated wound 2 cm x 0.5 cm x 0.5 cm simple left wrist
Injuries of Dharam PW/1 (Ex.P/5):
Incised wound 1.5 cm x 0.5 cm x .5 cm Forehead and hairline or midline Bruise (i) 6 cm x 4 cm Rt shoulder
(ii) 7 cm x 5 cm Rt scapular region Abrasions (i) 12 cm x 0.5 cm Rt scapular & intra scapular region 3 cm x 7 cm Rt side of lower part of chest
Bruises (i) 3 cm x 1.5 cm Left side of lower part of chest
(ii) 6 cm x 3 cm Posterior aspect of lower part of left forearm
(iii) 1 cm x 0.7 cm Left little finger
(iv) 3 cm x 7 cm Posterior lateral aspect of left arm
Abrasion 1 cm x 0.2 cm x 0.2cm Medial aspect of rt leg
Injuries of Pukhraj PW/3- (Ex.P/6):
Incised wound 6 cm x 1 cm x 1 cm Rt parietal region Abrasion (i) 1 cm x 1 cm posterior lower part of arm
(ii) 3 cm x 3 cm left posterior wall of anulla
(iii) 3 cm x 1 cm posterior aspect of forearm
(iv) 0.8 cm x 0.3 cm right cheek Bruise 4 cm x 2 cm
Swelling Diffused
Injuries of Prithvi Raj PW/2 (Ex.P/7):- Abrasion 1 cm x 0.5 cm Posterior aspect of lower part of left arm Upper part of rt Blunt forearm
Dorsum of left hand Blunt of rest of Index finger
For accused appellants’ side –
Injuries of Narayan (Ex.D/4):
Incised wound (i) 7 cm x 2 cm x 5 cm in face left side (ii) 3.0 cm x 2.0 cm on forehead (iii) 2.0 cm x 0.5. x0.5 below left clavicle.
Lacerated wound (i) 1.0 cm x 0.5 cm x 0.5 cm on left cheek (ii) 1.0 x 0.5 x 0.3 cm on scalp lt side (iii) 6.0 cm x 2 cm x 1.0 cm parietal region rt side (iv) 1.0 cm x 0.5 cm x 0.3 cm left parietal region X-ray report of Narayan on 09.05.01 found fracture of right occipital region and middle of shaft of clavical (report Ex.D/22).
Injuries of Giga Ram (Ex.D/5):
Incised wound 2 cm x 2 cm x 4 cm on Rt Index finger
As per X-ray report of Giga Ram Ex.D21, there was fracture at base of proximal phalanx of Index finger.
Injuries of Om Prakash (Ex.D/6):
Incised wound (i) 2.5 cm x 0.5 cm x 0.5 cm on Rt. Parietal region
Lacerated wound (i) 1.5 cm x 0.3 cm x 0.5 cm on root of thumb
(ii) 0.5 x 0.2 x 0.2 cm ulnar aspect of left middle finger
Bruises (i) 1.5 cm x .5 cm front of rt side of chest
(ii) Bruise with abrasion diffused rt elbow
(iii) 2.5 cm x 1 cm at vertebral level midline
Abrasions (two) 7 cm x .3 cm lateral aspect of rt side of cheshwall
Injuries of Duda Ram (Ex.D/7):
Incised wound 5 cm x 1 cm x 3 cm left shoulder arterially
Injuries of Smt. Bhagwati (Ex.D/8):
Incised wound 4 cm x 1.5 cm x 1 cm left parietal region Injuries of Hari Ram (Ex.D/9):
Lacerated wound 1 cm x 0.5 cm x 0.3 cm Radical aspect of right wrist.
Injuries of Ishwar lal (Ex.D/10):
Bruise 5 cm x 3 cm Lateral aspect let thigh Abrasion 6 cm x 2 cm lower part of right side of chest
15. We have perused the record carefully and have given thoughtful consideration to the rival contentions of the parties.
16. As narrated above, the material occular evidence is of complainant PW/1, his wife Smt. Chandra PW/30 and their sons Prithviraj PW/2 and Pukhraj PW/2 whose brother Joga Ram died of the injuries. No injury was caused to Smt. Chandra PW/30. The incident occurred in the morning at about 8 AM of 28.04.2001 and it has been specifically mentioned in the F.I.R. that accused Narayan, Duda and Hari Ram had axes in their hands and Narayan caused a blow of axe on head of Jog Ram and Duda too of axe on neck of Joga Ram- Proved by evidence of Investigating Officer (various memos bear signatures of motbirs) is that accused Hari Ram arrested on the same day at 9:15 PM and axe having blood stains, lying in the waste material in the bada, recovered. It is also proved that on 28.04.2001 at 10:15 night, accused Kalu Ram was arrested and on whose information and instance, lathi from sand of Bada was recovered. As per report of FSL Ex.P/79, sample of blood stained soil and axes contained human blood. Thus, recovery from Hari Ram, of blood stained axe and from Kalu blood stained hockey stands proved.
17. Another axe is said to be recovered from the accused Narayan who was arrested on 18.05.2001. As per injury report, he had serious injuries of sharp weapon on his head and also remained hospitalized, and for this reason, could not be arrested till then. Be that as it may, the fact remains that all other recoveries are made on or after 10.05.2001, which is more than 13 days after the incident, and when during this period, as per Investigating Officer himself, on many occasions had visited the place of incident, so considering all factors, no definite inference can be drawn on the basis of these recoveries. However, both the axes had blood stains, one recovered from Hari Ram on 01.05.2001 also had blood stains.
18. Dharma Ram PW/1 states that in the morning at about 7:15 he his wife Chandra and sons Joga Ram, Pukhraj and Prithviraj were sitting and Hari Ram and Oma Ram came at the door of their house and challenged them but they did not go out because of fear. Then, all the appellants came in their house – Duda, Hari Ram and Narayan were having axes. Oma having hockey and rest lathis and they attacked Joga Ram. Narayan inflicted axe blow on head and Duda axe blow at forehead of Joga Ram. PW/1 Dharma Ram, his sons Pukhraj and Prithvi raj and Smt.Chandra intervened and tried to save Joga Ram and then all the accused persons caused injuries to them. No injury caused to Smt. Chandra as she was simply requesting with folded hands. As per this witness PW/1, Joga Ram was serious who was carried to Balotra hospital, report of incident Ex.P/1, which he got written by someone presented to Police officer at hospital. Joga Ram was referred to Jodhpur hospital as he was very serious and by afternoon he died. According to this witness PW/1, two days prior to the incident on the day of Teej, Joga Ram stated to him that Hari Ram and Oma had a quarrel with him and then on the same day, Oma and Hariya came to his (Dharma’s) house and threatened Joga Ram to come out and due to this on this day (of 28.04.2001), accused had turned up there to kill Joga Ram. As per the witness PW/1, on the eastern and western side, there are residential houses but no one came and no one except Hari Ram intervened. PW/1 states that he had mentioned name of Ishwar lal in report Ex.P/1 but do not know why in the report Ex.P/1 and in his statement Ex.D/1 it does not appear. Dharma Ram PW/1 further states that his family is in little enemity with family of Pukhraj and Prithviraj though there was no dispute of property or land and also that Joga Ram was facing 1-2 false cases. PW/1 Dharma Ram stated that on being caused injuries, Joga Ram snatched axe from the hands of Narayan and swinged it around to Narayan and Bhagwat and then Joga Ram collapsed. Dharma Ram admits that when he and accused were in jail at that time, accused were having some bandage on their body.
19. As per PW/2 Pukhraj, around 7-7:30 in the morning, Oma and Hari Ram came and threatened him to come out and all of them entered the house and caused injuries as above to Joga Ram PW/2, himself and others. Their mother Chandra was standing at some distance requesting appellants with folded hands to not to do so. As per witness PW/2, Joga Ram was very serious who was referred from Balotra hospital to Jodhpur. In cross-examination he discloses that they have no quarrel of land or house with accused but on “Teej”, the accused and Joga Ram had quarrel and accused asked Joga Ram not to come towards their house or street. This witness denied that when Oma Ram was going to ease himself, he and Hari Ram was challenged by Joga Ram having axe in his hand. He also denied that when Narayan Ram came out of his house, Joga Ram inflicted injury of axe to Narayan and then Bhagwati intervened. Pukhraj PW/3 also stated the incident as above and states that Hari Ram resident of Mungda intervened and Joga Ram collapsed who was serious and carried to Balotra hospital from where, he was referred to Jodhpur but died on the same day. In cross-examination, he discloses that between father of appellant, Duda and Narayan and Pokar Ram is dispute of land and in the neighbourhood are houses of appellants and their father and the dispute is with regard to 3-4 ft wide land between the houses.
20. Smt. Chandra PW/3 has also supported the prosecution case and as per her statement, the accused came suddenly and accused Narayan inflicted axe blow on the head of Joga Ram and Joga Ram snatched axe from him and swinged around the axe to save himself, then Dudiya inflicted axe blow on his forehead. While Hariya and Oma gave two or three blows of hockey and she requested appellants with folded hands to not to beat. In cross-examination, she states that they had enemity with the accused party as they (appellants) wanted to grab their land which was in their occupation and on this, some warm words were also exchanged on day prior to the incident. The statement of this witness Ex.P/12 taken under investigation do not find mention of snatching of axe by deceased Joga Ram but it may be mentioned that Joga Ram had died of the injuries and two other sons and husband of this witness were also seriously injured. In such scenario, this can hardly be expected from any persons to narrate the occurrence with minute details.
21. The injuries found on the person of Joga Ram as per Postmortem report Ex.P/69 are 12 and asper injury Ex.P/3 are five and additional injuries found on postmortem report are – Six abrasions of 2.0 cm x 1.0 cm,4.0 cm x 2.0 cm, 1.5 cm x 0.8 cm, 1.0 cm x 0.5 cm, 0.8 cm x 0.5 cm (two) which are simple and obviously by blunt object which looking to the injuries in postmortem report as well as Injury report can be discarded outrightly. Significant injuries as per injury report and also as per postmortem report also are four stitched wounds 9.5 cm left front parietal region, 6.0 cm rt side of forehead, 4.0 cm left forearm post laterally, 1.2 cm, left forearm, 3.0 cm, obliquely left thigh and lacerated wound 3.5 cm x 0.5 cm scalp deep, rt parietal region.
22. The injury report of Balotra hospital mentions injury of parietal region near midline and brain matter coming out, so there is no reluctance for inferring that additional found abrasions are absolutely of no significance- Substantial injuries were on head and Medical officer of Balotra had to hurry for doing whatever he can and also for referring to higher centre- so this becomes absolutely immaterial. Injuries on the person of Dharma Ram, Pukhraj, Prithviraj and deceased Joga Ram is of much significance and that incident had occurred in the residential premises of the complainant.
23. Accused Giga Ram has wound of cutting of right index finger proximal phalanx and fracture found. This is a single injury though fracture is there. As per X-ray plates Ex.D/22, accused Narayan had fracture of middle shaft of clevical and right occipital but this is to be seen that injury caused to Joga Ram within their premises and relatively of very much intensity and gravity.
24. The argument advanced is that on the head of accused appellant Narayan is a grevious injury and on his person also other sharp injuries which are not explained and could not have been caused by Joga Ram after head injury to Joga Ram. Here it may be mentioned that the incident is said to be of 7:30 -8 AM- Doctors examined Joga Ram at about 10 AM and as mentioned in the injury report and stated in their evidence is to the effect that brain matter of Joga Ram was coming out and death occurred after few hours and the postmortem conducted in the evening at 5:40 P.M. So Joga Ram remained alive atleast for 4-5 hours. As such when a severe blow inflicted on him within his own residential premises by a person who is well known to him and who is just standing near him- it is but natural that he may snatch axe or whatever is in the hands of the assailant in order to protect himself and/or to do anything including harm to the assailant. Again it may be mentioned that as many as five wound injuries are on the person of Joga Ram. As discussed above, it is proved that the incident occurred within the residential premises of the complainant and there were as many as six appellant accused persons (excluding Ishwar lal) who had come to the house of the complainant and his sons. As per the defence version, Narayan was dragged by the complainant party to their house. Suffice is to mention that there could not have been any reason for that. If injury was to be inflicted to Narayan it can very well have been out of house and in any case, the accused Narayan could not have had axe or any weapon with him, if dragged, and certainly, if Narayan was dragged by the complainants to their house, he also could not have obtained axe from there. The appellant accused Ishwar lal is not named in the FIR and during investigation and his involvement becomes doubtful but this is also of significance that Ishwar lal too had injuries on his person as proved by doctor PW/6 and his injury report (Ex.D/10). So doubt for him, in the totality of circumstances, do not otherwise affect credibility of prosecution.
25. It cannot be said that prosecution has not rightly disclosed the genesis or is not trustworthy. The evidence for fatal blows to Joga is very straight, cogent and fully trustworthy and even if and only for the sake of argument, assumed that origin not crystal clear, then also this is not a case where truth and falsehood are inextricably mixed. The inference is that the accused went to the house of the complainant and inflicted axe blows to deceased Joga Ram- his father and two brothers and then in the squabble which followed, injuries were caused to Dharma Ram, Pukhraj, Prithviraj and Narayan and other accused persons.
26. To be very straight, the established fact of place of occurrence i.e. complainant’s and deceased house coupled with fact that unless the aggressor persons who inflicted fatal injuries could not have been armed, clinches the matter for and in favour of prosecution. Accused Narayan, Dudiya both inflicted injuries by axe to Joga Ram who succumbed. So both of them had similar intention.
27. For accused persons other than Narayan and Duda, no specific injury is attributed and they too received some injuries and similarly, Pukhraj, Prithviraj and Dharma Ram have also injuries. Proved is that to the house of complainant, accused Narayan and Duda went and in the house of complainant (Dharma Ram), appellant Narayan and Duda by axe (sharp heavy object) inflicted severe blows on head of Joga Ram. Some scuffle followed and other accused appellants came there and in the scuffle, injuries caused to complainants Dharma Ram, Pukhram, Prithviraj and also to the accused appellants. Accordingly considering all facts, circumstances, injuries and keeping into consideration various legal principles, as may be applicable to established factors of a case and totality of the circumstances, the accused appellants other than Narayan and Duda get benefit of doubt and proved is that Narayan and Duda caused Joga Ram bodily injuries which resulted death of Joga Ram.
28. Now coming to the last contention that whether the act amounts to murder or culpable homicide not amounting to murder, it is significant that there was some old dispute between the parties and relations were little strained and some quarrel occurring on “Teej” 2-3 days prior to the incident aggravated it. The deceased Joga Ram was probably facing few criminal cases and the appellants 2-3 days prior asked him not to come towards their home. Two accused appellants had challenged complainant just prior to the incident to come out of house but other prosecution witnesses state to the effect that nothing like severe enemity was between them. Other facts and circumstances of the incident as above which in the totality of circumstances do not indicate that intention was to cause death of Joga Ram or cause such bodily injury as is likely to cause death but knowledge of causing injury likely to cause death of Joga Ram by inflicting injuries likely to cause death stands proved and also proved is that- both of them committed criminal house tresspass with an intention to commit such an offence. Thus, act of appellants Narayan and Duda is an offence punishable under Section 304 Part I and Section 450 of IPC as the first injury is caused by Narayan and immediately after, second injury caused by Duda Ram, so Duda Ram is guilty and stands convicted for offence under Section 304 Part I read with Section 34 IPC and also Section 450 of IPC.
29. Accordingly, the appeal is partly allowed. The conviction and sentence of accused appellant Narayan S/o Pokarji is altered to Section 304 Part I IPC and Section 450 of IPC and sentenced (i) for Section 304 Part I to undergo 10 years rigorous imprisonment with fine of Rs. 10,000/- in default one and half years rigorous imprisonment and (ii) for Section 450 IPC seven years rigorous imprisonment with fine of Rs. 5000/-, in default six months rigorous imprisonment.
30. The conviction and sentence of accused Duda Ram S/o Pokar Ram is altered to Section 304 Part I read with Section 34 IPC and Section 450 of IPC and he is sentenced to (i) for Section 304 Part I read with 34 IPC, seven years rigorous imprisonment and Rs. 5000/- fine, in default six months rigorous imprisonment and (ii) for Section 450 IPC, five years rigorous imprisonment with fine of Rs. 3000/-, in default four months rigorous imprisonment. For both, substantive sentence shall run concurrently and if the fine is not paid, the imposed sentences for same shall run separately. Accused Narayan and Duda Ram (held guilty as above), stand acquitted for other charges levelled against them. Accused Narayan is behind the bars. He will serve out the sentence as ordered above, whereas, accused Duda Ram is on bail, he be taken into custody to serve out remaining part of sentence. All other appellants (i) Smt. Bhagwati, (ii) Ishwar lal, (iii) Hari Ram, (iv) Om Prakash and (v) Giga Ram are acquitted of the offences levelled against them. Their conviction and sentences are set aside. Th ey are on bail. They need not surrender to their bail bonds. Their bail bonds stand discharged.