JUDGMENT
K.S. Lodha, J.
1. The learned Counsel for the appellants in this case has only challenged the nature to the offence which the accused appellants have been convicted. He does not dispute the prosecution story but urges that the appellant Sucha Singh could not have been convicted Under Section 302, IPC but should have been convicted Under Section 304, Part-II, PC and two other appellants Ajaib Singh and Bakar Singh could not have been convicted Under Section 302 read with 34, IPC and should have been convicted only Under Section 324, IPC.
2. Keeping this short contention in view, we have heard the learned conusel for the appellants and the learned Public Prosecutor and have gone through the record.
3. Briefly stated the prosecution story is that on 11-5-1985 at about 9.30 p.m., the deceased Jogendra Singh a Mazabi Sikh r/o 1, PS has gone to the house of Gurdeep Singh P.W. 3, the First Informant to pay a courtesy call along with Kashmir Singh. He called upon Gurdeep Singh and when Gurdeep Singh came out, the accused persons Sucha Singh, Kala Singh, Ajaib Singh. Mazabis and Bakar Singh, Rai Sikh r/o 2, PS came there, Sucha Singh had a Lathi, Kala Singh had a Gandasi and Ajaib Singh and Bakar Singh had spears. Sucha Singh is alleged to have given a blow on the head of Jogendra Singh, where upon Gurdeep Singh asked Sucha Singh not to beat Jogendra Singh in front of his house. How ever, although Sucha Singh did not repeat any blow, Kala Singh gave a blow on the head of Jogendra Singh with the Gandasi and when Jogendra Singh fell down, Ajaib Singh and Bakar Singh are alleged to have given him pricks with spears Jogendra Singh fell down unconscious. Then Gurdeep Singh along with Kunwar Dalip Singh and master Gurdarshan Singh, who had also reached the spot by that time, rescued Jogendra Singh and the accused persons took to their heals. Later Gurdeep Singh and Kashmir Singh carried the injured and unconscious Jogendra Singh to Padam pur. There the doctor informed the Police Station, Padampur but was Jogendra Singh did not regain consciousness and succumbed to the injuries in the hospital, his statement could not be recorded. The Gurdeep Singh went to Police Station, Ghamudwali and lodged a report vide Ex. P. 1, there at 4 p.m. on 12-5-1985 and a case Under Section 302 read with 34, IPC was registered against the four accused persons. After due investigations, the case was challaned and on trial, the learned Additional Sessions Judge No. 1, Sri Ganganagar camp Srikaranpur acquitted accused Kala Singh on the ground that the injury with sharp edged weapon alleged to have been accused by him on the head of the deceased, was not found there at the post-mortem examination and, therefore, his participation was doubtful. How ever, he convicted the appellants Sucha Singh Under Section 302, IPC and Ajaib Singh and Bakar Singh Under Section 302 read with 34, IPC and sentenced them to imprisonment for life and a fine of Rs. 1,000/- each in default to six months rigorous imprisonment each by his judgment dated 27-1-1987.
4. On the above premises, the question posed before us is whether the conviction of the appellant Sucha Singh Under Section 302 and convictions of Ajaib Singh and Bakar Singh Under Section 302 read with 34, IPC are proper or they can be held guilty only of the lesser offences as urged by the learned Counsel for the appellants.
5. From the evidence of the eye witnesses Gurdeep Singh P.W. 3, Kashmir Singh P.W. 4, Kunwar Dalip Singh P.W. 6 and Dev Singh P.W. 7, it appears that only one blow had been struck by Sucha Singh on the head of the deceased. According to Dr. Harbans Kaur, this blow bad resulted into compound drpressed fracture of the occipital bone and had led to intra-cranial haemorrhage and this injury was sufficient in the ordinary course of nature to cause death. Thus, this was the fatal injury. So far as other accused Ajaib Singh and Bakar Singh are concerned, they are alleged to have caused only simple injuries with sharp edged weapons on the person of the deceased. These injuries are (i) a stab wound 1-1/4 cm. x 1/2 cm. x 15 cm. on right flank of abdomen, (ii) stab wound 1 cm x 2-1/2 cm. on right flank of abdomen, and (iii) stab wound 2-1/2 cm. x 2-1/2 cm. lateral to the right iliac region. With regard to these injuries, the Doctor (Mrs) Harbans Khanna has, of course, stated in her examination-in chief that they were also possible to cause death in the ordinary course of nature. How ever, in the cross-examination, she had to admit than these injuries had not resulted into any damage to any of the internal organs. She has also stated that if immediate medical aid would have been available and operation could be performed on the deceased in respect of the head injury, he could be saved.
6. The eye-witnesses do not allege nor any other evidence indicates that there was any previous enmity between the accused persons add the deceased and if there was any, it must have been suppressed by the prosecution. The accused persons could not have expected the deceased to be present at the place where he had been attacked as he had casually come to see Gurdeep Singh, P.W. 3 and it is possible that all of a sudden having seen the deceased person there, the accused persons may have attacked him as their houses are in the vicinity of the place of the incident. It may further be pointed out that the prosecution does not appear to have come out with the whole truth inlas much as Kala Singh had to be acquitted as the injury attributed to him, was not found on the person of the deceased. It is still further pertinent to point out that according to the FIR, the statement of Gurdeep Singh P.W. 3 and that of Dr. Harbans Khanna. the deceased had first been taken to the Padampur Hospital and from there, a message had been sent by the doctor to the Police Station, Padampur. How ever, the prosecution has not cared to place that information on record and the first version of the prosecution has thus been made obscure.
7. In this background, we further find that the accused Sucha Singh had inflicted only one blow with a Lathi on the head of the deceased and when Gurdeep Singh asked him to desist from beating Jogendra Singh in front of his house, he did not repeat the blow. Of course, the blow bad fallen with & heavy hand causing fracture and intra cranial haemorrhage but the circumstances of the case, it cannot be said without any amount of doubt that the accused Sucha Singh had intended to cause that very injury on the person of the deceased and as the attack was opened all of a sudden, the blow may have fallen on the head with some force. There is no previous enmity shown. Between Sucha Singh and the deceased and the motive for the offence is not forth-coming and, therefore, also it cannot be assumed that the accused Sucha Singh had the intention to cause the death of the deceased. His case, therefore, cannot fall under any of the clause of Section 300 and therefore, the offence must fall Under Section 304, Part-II, IPC in as much as by causing such an injury on the head, the accused can be attributed the knowledge that his act was likely to cause the death of Jogendra Singh. Thus, his conviction Under Section 302, IPC cannot be sustained and he can be convicted only Under Section 304, Part-II, IPC.
8. The other two accused appellants cannot be said to have shared any common intention with the accused appellant Sucha Singh for causing the death of Jogendra Singh nor can it be said that they had the knowledge that the acts jointly or severally were likely to case the death of Jogendra Singh. Although these accused appellants Ajaib Singh and Bakar Singh are alleged to be armed with spears and are alleged to have caused injuries with spears on the person of Jogendrasingh after he had fallen down, they did not use the spears with any great force & they only caused simple injuries on the person of the deceased. Dr. Harbans has admitted that none of these injuries had caused any damage to the internal organs of the body and in this view of the matter, her earlier statement that these injuries could also possibly cause death, cannot be accepted at its face value. She does not appear to be an experienced doctor in this respect as she herself very clearly admitted that this was the first time for her to perform a post-mortem examination in a murder case.
9. When these appellants cannot be said to have formed any common intention of causing the death of Jogendra Singh with Sucha Singh nor can they foe attributed the knowledge their acts were likely to cause the death of Jogendra Singh, they cannot be held guilty either Under Section 302 read with 34 or 304 read with 34, IPC. Therefore, they can be held guilty only for the injuries caused by them individually and since they had caused simple injuries on the person of the deceased with sharp edged weapons, they can be held guilty only Under Section 324, IPC each.
10. Now coming to the question of sentence. Sucha Singh has been convicted Under Section 304, Part-II, IPC and in the facts and circumstances of the case, we are of the opinion that a sentence of five years rigorous imprisonment with a fine of Rs. 1,000/- would meet the ends of justice. So far as Ajaib Singh and Bakar Singh are concerned, they have already undergone more than two years rigorous imprisonment each. They had been in custody since 13-5-1985 and have been released on bail only by this Court after their convictions. The bail order was passed on 11-5-1987 Ajaib Singh was released in pursuance of that order on 25-5-1987 and Bakar Singh was released on 30-1 1988. Thus, they have undergone more than two years each and in our opinion, the terms already undergone by them would suffice.
11. The result, therefore, is that this appeal is partly allowed. The conviction of the appellant Sucha Singh Under Section 302 and those of Ajaib Singh and Bakar Singh Under Section 302 read with 34, IPC are set aside instead Sucha Singh is convicted Under Section 304, Part-II, IPC and is. sentenced to imprisonment for five years and a fine of Rs. 1,000/-; in default of payment of which, be will undergo three months further rigorous imprisonment. Ajaib Singh and Bakar Singh are convicted Under Section 324, IPC each and are sentenced to the terms of imprisonment already under gone by them.
12. Ajaib Singh and Bakar Singh are on bail and need not surrender; Their bail bonds shall stand cancell.